Federal court of australia

RELIEF

28.Section 474 of the Act

409 The Minister raised, in answer to the applicant’s prayer for injunctive relief, s 474 of the Act. That section, and also the headings of its Part and Division, are as follows:

Part 8—Judicial review

Division 1—Privative clause

474 Decisions under Act are final

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the following:

(a) granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d) imposing, or refusing to remove, a condition or restriction;

(e) making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f) retaining, or refusing to deliver up, an article;

(g) doing or refusing to do any other act or thing;

(h) conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j) a failure or refusal to make a decision.

(4) For the purposes of subsection (2), a decision under a provision, or under a regulation or other instrument made under a provision, set out in the following table is not a privative clause decision:

…

410 The Minister’s argument was that mandatory injunctions could not issue because their effect would be to “require the Commonwealth to take actions authorised by s 198B, or s 198AHA, of the Act.” He continued, “[s]uch actions, and the failure or refusal to take such actions, are ‘privative clause decisions’ in the light of s 474(2) and (3)(g) and therefore, under s 474(1)(c), are not subject to injunction ‘in any court on any account’.”

411 There can be no doubt that a decision by the Minister to exercise powers under s 198AHA or s 198B, or to exercise them in a particular way, or to refuse to exercise those powers, would be a “decision” within the meaning of s 474(3). Any such decision that the Minister “made”, or “proposed to make,” would be a “privative clause decision” within the meaning of s 474(2). That has the consequence that any such decision is “final and conclusive”, that it “must not be challenged, appealed against, reviewed, quashed or called in question”, and “is not subject to … injunction … on any account.” It was this final limitation upon which the Minister principally relied.

412 The question, then, is this: would issuing an injunction in this case requiring the taking of action by the Minister or the Commonwealth, or prohibiting it being taken which action may be performed using statutory powers including s 198AHA, constitute the “subject[ing of]” a “privative clause decision” to injunction? I have concluded that it would not.

29.Cases concerning ss 476A and 486A

413 The Minister took me to one case only in relation to the effect of s 474 of the Act, being Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre (2006) 155 FCR 465. But, as I will now set out, there are quite a few judgments, including from the High Court and Full Courts of this Court, that bear upon the proper interpretation of the section.

414 The meaning of the phrase “in relation to a migration decision”, as used in ss 476A and 486A, has been considered in a number of cases. I will start with Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, which concerned s 486A of the Act. At the time, that section provided, relevantly, as follows:

486A Time limit on applications to the High Court for judicial review

(1) An application to the High Court for a remedy to be granted in exercise of the court’s original jurisdiction in relation to a migration decision must be made to the court within 28 days of the actual (as opposed to deemed) notification of the decision.

(1A) The High Court may, by order, extend that 28 day period by up to 56 days if:

(a) an application for that order is made within 84 days of the actual (as opposed to deemed) notification of the decision; and

(b) the High Court is satisfied that it is in the interests of the administration of justice to do so.

415 In Bodruddaza, the Minister’s delegate refused an application for a residency visa on the basis that Bodruddaza had not obtained the requisite number of points prescribed by the regulations (because he had failed to achieve the requisite language skills scores). Bodruddaza applied to the Migration Review Tribunal, out of time, for review of that decision. The Tribunal determined it had no power to extend time and thus that it had no jurisdiction to review. Bodruddaza applied to the High Court for certiorari, prohibition and mandamus asserting jurisdictional error on the part of the delegate. That application was made outside the eighty-four days prescribed by s 486A for a “remedy … in relation to a migration decision.” “Migration decision” was defined in s 5(1) to include a privative clause decision – which is in issue in this case – a purported privative clause decision, or a non-privative clause decision.

416 A relevant question concerned the meaning of the phrase “a remedy … in relation to a migration decision.” At [21]–[25], the Court (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ) resolved the competing submissions on the issue in the following way (emphasis added, citations omitted):

[21] The Solicitor-General of the Commonwealth submitted that the phrase in s 486A(1) “a remedy … in relation to a migration decision” was sufficiently broad to encompass more than applications for judicial review. He submitted that, for example, unless the plaintiff complied with s 486A, an action in tort would not lie in the original jurisdiction of this Court against the Commonwealth for false imprisonment where an officer had detained the plaintiff as an unlawful non-citizen without the knowledge or reasonable suspicion stipulated by s 189 of the Act.

[22] Counsel for the plaintiff advanced cogent reasons why the phrase “a remedy … in relation to a migration decision” should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions.

[23] First, the plaintiff emphasised the extensive scope of the definition of “migration decision” in s 5(1), and in particular the inclusion of proposed decisions in the definition of “purported privative clause decision” found in s 5E. The tortious conduct completing a cause of action might well take place after the end of the eighty-four day period stipulated in s 486A by reference to actual notification of a migration decision. Such a draconian, if not irrational, legislative scheme should not be attributed to the Parliament in the absence of clear words.

[24] Secondly, the perceived mischief to which the 2005 Act was directed concerned the challenge by judicial review processes to migration decisions. The application to this Court identified in s 486A(1) is “for a remedy” by way of judicial review, specifically in a s 75(v) matter. The Explanatory Memorandum on the Bill for the 2005 Act circulated by the authority of the Attorney-General to the House of Representatives is instructive in this respect. Section 486A was one of several provisions included in the 2005 Act amendments with the avowed objective “to impose uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court”.

[25] Accordingly, the submission now made by the Solicitor-General which would give broader reach to s 486A should not be accepted.

417 In other words, the Court construed the words “a remedy … in relation to a migration decision” as applying only to judicial review applications, that is, in relation to public law remedies sought in relation to a migration decision. The words “a remedy … in relation to a migration decision” did not capture, for example, an action in tort for false imprisonment relating to detention purportedly under s 189 of the Act (as the Solicitor-General had submitted that it did). A plaintiff would not be precluded by s 486A(1) from bringing an action in false imprisonment after the 84-day period prescribed by the section.

418 In Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471, Siopis J was called upon to consider s 476A. That section provided, at the time, as follows:

(1) Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a) the Federal Magistrates Court transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 39 of the Federal Magistrates Act 1999; or

(b) the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c) the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B or 501C; or

(d) the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

(2) Where the Federal Court has jurisdiction in relation to a migration decision under paragraph (1)(a), (b) or (c), that jurisdiction is the same as the jurisdiction of the High Court under paragraph 75(v) of the Constitution.

419 The applicant had sought damages for false imprisonment after being held in detention. The question, again, was whether the action was “in relation to a migration decision.” Siopis J held that it was not, and that the Court had jurisdiction to consider the claim.

420 The respondent had argued that the detention of the applicant was a “privative clause decision,” and thus within the meaning of a “migration decision,” because the detention of the applicant was the “doing of an act” and fell within s 474(3)(g). The respondent submitted that the claim for damages for false imprisonment amounted to a “collateral attack” on a migration decision and that the Court had no jurisdiction to consider the claim (see [16]). His Honour assumed for the sake of the argument that the detention of the applicant was a “privative clause decision” (at [17]). At [19], Siopis J identified the question as being whether, by enacting s 476A, the Parliament intended to deprive the court of original jurisdiction “to hear and determine a claim for damages for false imprisonment arising from actions that were taken under the Act, because such a claim could comprise a collateral attack on the lawfulness of a migration decision.”

421 Siopis J set out, at [21], paragraphs [21]–[25] of Bodruddaza, which I have quoted above. At [22], his Honour concluded as follows:

In my view, the observations of the High Court in relation to the legislative intention of the 2005 Act apply mutatis mutandis to the amendments made to the Act by the insertion of s 476A. Accordingly, the limitations imposed by that section on the original jurisdiction of the Federal Court were intended to apply only to the “challenge by the judicial review processes to migration decisions”. It follows that the original jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act, to hear and determine a claim for common law damages for false imprisonment arising from detention under the Act, is not affected by s 476A. In other words, s 476A(1) of the Act is to be read as if the words “an application for judicial review of”, were inserted between the words “in relation to” and “a migration decision”

422 In Tang v Minister for Immigration and Citizenship (2013) 217 FCR 55, Rares, Perram and Wigney JJ were also called upon to consider s 476A. In that case, the applicant applied too late for judicial review of a decision by the Migration Review Tribunal in relation to his student visa. The Federal Circuit Court refused to grant an extension of time. The applicant commenced proceedings in the High Court seeking constitutional writs against the Federal Circuit Court, and the application was remitted to the Federal Court. The primary judge dismissed it. On appeal to a Full Court, a preliminary question was whether the Federal Court had jurisdiction to hear the application in light of s 476A.

423 The Full Court observed that Tribunal’s decision was a “migration decision” but that the decision of the Federal Circuit Court was not (at [3]). Their Honours stated that, in light of s 476A(1), the Federal Court only had jurisdiction if the proceeding was not “in relation to” a “migration decision.” Evidently without being taken to Fernando, the Full Court reached the same conclusion as Siopis J. At [6]–[9], their Honours said this (emphasis added):

[6] In this case the statutory context requires that the phrase be given a circumscribed meaning. Section 476A of the Act appears in Div 2 of Pt 8 of the Act which is entitled, and governs, “Judicial Review” of migration decisions. Whether valid or invalid, a decision of a tribunal dealing with issues of migration is defined to be a “privative clause decision” (s 474) and all such decisions are defined to be “migration decisions” (s 5). …

[7] The expression “in relation to a migration decision” appears throughout Div 2 of Pt 8. In particular, ss 477 and 477A require proceedings “in relation to a migration decision” in the original jurisdiction of the Federal Circuit Court and in this Court’s circumscribed original jurisdiction to be commenced within 35 days of the migration decision. These time limits make little sense if proceedings “in relation to a migration decision” were to include collateral challenges to the underlying migration decision such as might occur in a case alleging false imprisonment. It is established, therefore, that such a challenge is not caught by s 486A of the Act: Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651. That decision does not directly govern this case because Mr Tang’s proceeding does not involve a collateral challenge to the decision not to reinstate his visa and because s 486A (which placed time limits on when an application to the High Court “in relation to a migration” had to be made) is contained in Pt 8A and not Div 2 of Pt 8. There is no relevant difference, however, between Pt 8A and Div 2 of Pt 8 in relation to the issue of construction which arises and the presence of s 486A in Pt 8A may be put aside.

[8] Bodruddaza does nevertheless establish, that “in relation to” has a narrower operation in the present context than its ordinary meaning might otherwise suggest. In Bodruddaza the High Court held that the expression “a remedy … in relation to a migration decision” in s 486A “should not be given a reading which would take s 486A beyond public law remedies and into the area of what might be called collateral attack upon migration decisions” (at [22]; see also: [25] and [79]). This does not directly control the outcome of this matter either because Mr Tang’s application is properly characterised as one which seeks a public law remedy, namely, writs of mandamus and certiorari against an officer of the Commonwealth. On the other hand, one of the reasons the High Court accepted the limitation on s 486A (at [24]) was that given in the Explanatory Memorandum for the Migration Litigation Reform Bill 2005 (Cth) which accompanied its introduction. That showed that the legislation was introduced with the avowed objective “to impose uniform time limits for applications for judicial review of migration decisions in the [Federal Magistrates Court], the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court”.

[9] That objective would not be served by extending the concept of proceedings “in relation to a migration decision” to include cases where judicial review is sought of orders made by the Federal Circuit Court in respect of an underlying migration decision. Although it is also true that the broader interpretation would not hinder the achievement of that objective we do not consider that it is the interpretation which would “best achieve the purpose or object of the Act”: cf Acts Interpretation Act 1901 (Cth), s 15AA. Consequently, we conclude that Div 2 of Pt 8 of the Act is confined by the use of the expression “in relation to a migration decision” to applications for direct judicial review of migration decisions and does not extend to ancillary judicial review proceedings in respect of orders made in proceedings of that kind.

424 I was taken in submissions to two cases in which judges of this Court considered making injunctions in relation to a breach of a duty of care: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 (Finn J) and MZYYR v Secretary, Department of Immigration and Citizenship (2012) 129 ALD 331 (Gordon J). At [263] of S, Finn J said that he would have been prepared to grant injunctive relief against the Commonwealth exposing the applicants to likelihood of harm, but as they had already been transferred to a mental health facility an injunction was unnecessary.

425 At [55] of MZYYR, Gordon J said that she was not yet persuaded that the Court lacked power to restrain a continuing tort. That was in response to a submission by the respondents recorded at [49], that “the court has no power to order the minister to make a determination under s 197AB of the Act and no power to compel the minister to approve a specific new place of ‘immigration detention’ … .” That seemed to be based upon the associated submission at [50] that “it was not possible to craft an order which was certain in its terms and, at the same time, would satisfy the statutory regime.” I do not think that submission was based on s 474 or a submission that the Court did not have the power to issue an injunction: at [20], Gordon J records that it was not in dispute that:—

The court has power, in an appropriate case, to restrain the minister for Immigration and Citizenship’s agents from causing a person’s immigration detention to continue at a place or in a form that constitutes a continuing tort: Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83; [2004] FCAFC 93 at [127]–[129] and [137], see also [1]–[4] and [14]; S at [218] and [232]. …

(emphasis in original)

426 In Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83, the applicant (a detainee in the Baxter detention centre) sought damages for breach of duty associated with his treatment while in detention, and he sought injunctive orders that he be removed from the Baxter facility. The primary judge made interlocutory order requiring the Secretary to move the applicant to either the Villawood or the Maribyrnong detention centre. An appeal was made against that order. On appeal, Lander J (with whom Finn and Selway JJ agreed) allowed the appeal but only for the purpose of substituting a different injunctive order, namely this:

Until the trial of this action or until further order, whichever first occurs, an injunction is hereby granted restraining the first respondent (the secretary) from:

(1) Detaining the applicant (Mr Mastipour) at the Baxter Reception and Processing Centre in Port Augusta, South Australia; or

(2) Removing the applicant (Mr Mastipour) to the Port Hedland Reception and Processing Centre in Western Australia.

427 In SBEG v Secretary, Department of Immigration and Citizenship (No 2) (2012) 292 ALR 29, the applicant commenced proceedings against the Commonwealth seeking a permanent injunction with respect to his mental health needs and the circumstances and place of his detention, and also damages. The applicant failed, but not because the relief he sought was unavailable: Besanko J held that the scope of the Commonwealth’s duty of care did not extend to devising a form of detention for the applicant under a particular paragraph of the definition of “immigration detention” (at [117]).

30.Extrinsic materials

428 It was important in the reasoning of Bodruddaza, Fernando, and Tang that the sections there under consideration were directed at “judicial review processes” (see Bodruddaza at [24], Fernando at [22]) or at “direct judicial review (Tang at [9]). Section 486A was added by the Migration Legislation Amendment Act (No 1) 2001 (Cth) (“Legislation Amendment Act”). The Explanatory Memorandum for the Bill for that Act provided, at [2] of the “overview” and [7] of the explanatory material for Sch1, as follows (emphasis added):

2 Schedule 1 to the Bill makes a number of amendments relating to the judicial review scheme set out at Part 8 of the Act and introduces a new Part 8A into the Act. These amendments flow from the Government’s policy intention of restricting access to judicial review in visa related matters in all but exceptional circumstances. …

7 New subsection 486A(1) provides that an application to the High Court in its original jurisdiction under the Constitution for judicial review of a decision covered by subsection 475(1), (2) or (3) must be made within 28 days of the notification of the decision. …

429 As noted at [24] of Bodruddaza, the purpose of the Migration Litigation Reform Act 2005 (Cth), which amended s 486A, was similarly targeted. Point (iii) of the “General Outline” states, “[t]he Bill includes amendments to impose uniform time limits for applications for judicial review of migration decisions in the FMC, the Federal Court (in the limited circumstances that migration cases will be commenced in that Court) and the High Court.”

430 It is evident from the explanatory material to the Bill that amended s 474 into its now-familiar form that its target was the same. On 27 September 2001, the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (“Judicial Review Act”) was assented to. The Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) (later the Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth)) (“Judicial Review Bill”), said, inter alia, as follows (bold emphasis added):

3 The amendments to the Migration Act 1958 and the Administrative Decisions (Judicial Review) Act 1977, in relation to judicial review of immigration decision-making:

• introduce a new judicial review scheme, in particular a privative clause, to cover decisions made under the Migration Act 1958 relating to the ability of non-citizens to enter and remain in Australia;

• apply the new judicial review scheme to both the Federal Court and the High Court; and

…

FINANCIAL IMPACT STATEMENT

4 The amendments to the Migration Act 1958 in relation to judicial review of immigration decision-making will, if they operate as predicted by reducing the issues to be addressed and allowing cases to be resolved more quickly, deliver substantial savings. It will take some time before the scheme is fully effective given a backlog of cases to which it will not apply and for any initial court challenges to it to be resolved.

…

Item 3 Subsection 5(1)

8 A new definition - "privative clause decision" - is inserted in relation to the new judicial review provisions for those decisions covered by new subsection 474(1) and made under the Migration Act (or regulations or other instruments made under that Act).

…

474 Decisions under Act are final

14 New subsection 474(1) introduces a privative clause for decisions made under the Migration Act, regulations made under that Act or other instruments under that Act except for decisions made under the provisions set out in new subsection 474(4) or as prescribed under new subsection 474(5). A privative clause affects the extent of judicial review by both the Federal Court and the High Court of decisions covered by the clause.

15 A privative clause is a provision which, although on its face purports to oust all judicial review, in operation, by altering the substantive law, limits review by the courts to certain grounds. Such a clause has been interpreted by the High Court, in a line of authority stemming from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598, to mean that a court can still review matters but the available grounds are confined to exceeding constitutional limits, narrow jurisdictional error or mala fides.

16 The intention of the provision is to provide decision-makers with wider lawful operation for their decisions such that, provided the decision-maker is acting in good faith, has been given the authority to make the decision concerned (for example, by delegation of the power from the Minister or by virtue of holding a particular office) and does not exceed constitutional limits, the decision will be lawful

431 The Minister’s Second Reading Speech was equally as clear (Commonwealth, Parliamentary Debates, House of Representatives, 26 September 2001, 31559 (Philip Ruddock) at 31559:

The bill gives legislative effect to the government's longstanding commitment to introduce legislation that in migration matters will restrict access to judicial review in all but exceptional circumstances. This commitment was made in light of the extensive merits review rights in the migration legislation and concerns about the growing cost and incidence of migration litigation and the associated delays in removal of non-citizens with no right to remain in Australia.

It is worth noting that the language in the italicised passage in the foregoing—“restrict access to judicial review is all but exceptional circumstances”—is nearly identical to the purpose mentioned of the insertion of provisions including s 486A, quoted above at [428]—“restricting access to judicial review in visa related matters in all but exceptional circumstances”. The Minister continued:

The bill introduces a new judicial review scheme …

The privative clause does not mean that access to the courts is denied, nor that only the High Court can hear migration matters. Both the Federal Court and the High Court can hear migration matters, but the grounds of judicial review before either court have been limited.

…

Faced with the problem I have outlined, I asked the Department of Immigration and Multicultural Affairs in early 1996 to explore options for best achieving the government's policy objective of restricting access to judicial review. This was done in conjunction with the Attorney-General's Department, the Department of the Prime Minister and Cabinet and eminent legal counsel.

The advice received from legal counsel was that the only workable option was a privative clause.

…

It has been suggested that the introduction of a leave requirement would achieve the government's policy objective of restricting judicial review to `exceptional circumstances'. In the government's view, that is not a viable option. While it is possible to impose a leave requirement on the Federal Court, it is not constitutionally possible to do so with the High Court in its original constitutional jurisdiction. That would leave that court exposed to applicants going straight to the High Court in order to avoid any leave requirement imposed on the Federal Court. In any event, the imposition of a leave requirement could increase the complexity of the litigation and cause consequential delay and cost, and may in practice even double the number of hearings before the Federal Court. That would exacerbate those problems which the government is aiming to rectify.

…

The government has other legislative reforms of judicial review either in the parliament or about to be introduced to the parliament. Those reforms, such as the bar on class or other representative actions in visa related matters, and the codification of the natural justice or procedural fairness `hearing rule', are complementary to this bill.

432 It is overwhelming clear that the Minister’s concern was with judicial review. I also refer to the italicised passage in the last paragraph. That is likely a reference to the Migration Legislation Amendment Bill (No 1) 2001 (Cth) (“Legislation Amendment Bill”). The Legislation Amendment Bill became the Legislation Amendment Act. It was assented to on the same day as the Judicial Review Act, and inserted s 486A

433 It is abundantly clear that the purpose of s 474 was to restrict judicial review of migration decisions. The act that inserted s 474 was assented to on the same day and as part of the same package of “legislative reforms of judicial review” that inserted s 486A. A unanimous High Court held that s 486A was confined to judicial review processes and was not intended to preclude, for example, an action in tort against the Commonwealth for false imprisonment. The same consideration led Siopis J to conclude that the phrase “in relation to a migration decision” should be read “in relation to an application for judicial review of a migration decision”. It seems to me that precisely the same course is open here, and for the same reasons. In essence, I would read the words “in an application for judicial review” between the words “is not” and “subject to prohibition …”, and a corresponding phrase into s 474(1)(b) so that the section read thus:

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not, in an application for judicial review, be challenged … ; and

(c) is not, in an application for judicial review, subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

31.Other cases

434 For completeness I must mention Beyazkilinc and SGS v Minister for Immigration and Border Protection (2015) 34 NTLR 224. In Beyazkilinc the applicant sought an injunction restraining his continued detention in any form of immigration detention that would inhibit his admission to and treatment at a mental health facility (“detention injunction”). He also sought an injunction restraining the respondent from removing him from Australia other than on certain conditions (“removal injunction”). Besanko J identified (at [16]) that the applicant made two claims: one in tort for breach of duty of care, and one that his proposed removal from Australia would be ultra vires. It was alleged (see [18]) that removal of the applicant from Australia would breach the duty of care.

435 At [29], Besanko J turned to consider whether the proposed removal of the applicant from Australia was a privative clause decision. His Honour held that it was (at [39]). His Honour then considered, at [40]–[45], whether there was an arguable case that the “privative clause decision” could be set aside for jurisdictional error. His Honour held that there was not. At [45] his Honour said that it followed from the terms of s 474 that the removal of the applicant from Australia was not to be the subject of an injunction, whether the claim was based on the allegation that removal was beyond power or whether on a breach of a duty of care.

436 His Honour was not, it seems, taken to Bodruddaza, Fernando, Tang, S, MZYYR, or any of the explanatory material concerning s 474. There is no discussion in his Honour’s judgment of whether s 474 was limited in its application to judicial review applications. Indeed, the point does not seem to have been argued before his Honour. With respect to his Honour, so far as Beyazkilinc holds that an injunction may not issue in respect of a claim against the Minister in tort, whether arising out of the exercise (or non-exercise) of statutory duties or not, I am of the opinion that it was plainly wrong. I would decline to follow it.

437 I am aware that the “plainly wrong” test is a high bar. But, as Greenwood J (with whom Sundberg J agreed) said in BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 at [83], an instance of an error is “plainly wrong” is where there is a “failure to apply … an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament).” In my opinion, the High Court’s judgment in Bodruddaza contains a relevant such “clear persuasive emphasis of opinion”.

438 SGS was a proceeding by a five-year-old girl who sued for damages for negligence suffered while in detention on Nauru, and for an injunction restraining her return to that centre. It was argued that the Northern Territory Supreme Court did not have jurisdiction in relation to SGS’s claims, because of s 484 of the Act. That provision provided as follows:

484. Exclusive jurisdiction of High Court, Federal Court and Federal Circuit Court

(1) Only the High Court, the Federal Court and the Federal Circuit Court have jurisdiction in relation to migration decisions.

(2) To avoid doubt, subsection (1) is not intended to confer jurisdiction on the High Court, the Federal Court or the Federal Circuit Court, but to exclude other courts from jurisdiction in relation to migration decisions.

(3) To avoid doubt, despite section 67C of the Judiciary Act 1903 (Cth), the Supreme Court of the Northern Territory does not have jurisdiction in relation to migration decisions.

(4) To avoid doubt, jurisdiction in relation to migration decisions is not conferred on any court under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth).

The question was whether the effect of that section was that the Supreme Court of the Northern Territory lacked jurisdiction to grant the injunctive relief sought.

439 His Honour noted (at [17]) that the defendants did not challenge the Court’s ability to hear the plaintiff’s claims in tort and grant the “normal remedy of damages.” The same concession was made in this case.

440 The plaintiff relied upon the principle of legality. Importantly, his Honour noted (at [21]) that “[e]ven if this court does not have jurisdiction to grant [injunctive] relief, it can be sought elsewhere, in the High Court and possibly the Federal Court and the Federal Circuit Court.”

441 The defendant relied upon ss 474(3)(g) and 474(3)(j). He submitted that the plaintiff’s claim for injunctive relief rested upon failures by the Minister to exercise certain statutory powers and a failure to provide an undertaking not to remove the plaintiff and her family to Nauru (at [31]). The defendants “contended that each of the alleged failures is inimically [sic; scilicet ‘intimately’?] related to the exercise of power by the Minister under the Migration Act and are ‘migration decisions’ as defined by the Migration Act.” The plaintiff rejoined that her claim was a civil suit for negligence seeking appropriate remedies and that it was “simply not the case” that her claim involved failures relating to powers under the Act.

442 Hiley J held, at [34]–[35], as follows:

[34] … The plaintiff’s request for injunctive relief is very much based upon the failures or refusals of the defendants to make the kind of migration decisions referred to in her statement of claim.

[35] Moreover, the granting of injunctive relief of the kind sought would have the effect of preventing the second defendant from performing its statutory obligations, for example, under s 198AD(2), and the minister from freely exercising or refusing to exercise certain powers and discretions, for example, under s 198AE(1), and would have the same effect as a migration decision. Counsel for the plaintiff accepted this. Further, the plaintiff would remain in detention until and unless the minister exercised some other power such as the power to grant a visa under s 65 or to make a residence determination under s 197AB

443 His Honour then turned to the authorities. He considered Bodruddaza and said that both s 486A and s 484 were introduced by the same act. His Honour continued, at [42], thus:

Accordingly the defendants did not contend that s 484 deprives this court of jurisdiction to hear the plaintiff’s claims in tort against the Commonwealth notwithstanding that they might involve a “collateral attack upon migration decisions”. The Federal Court would also have such jurisdiction: see Fernando v Minister for Immigration and Citizenship.

444 Respectfully, I would not have declined to follow Bodruddaza on that basis. The holding of Bodruddaza was that the words “a remedy … in relation to a migration decision” was not, contra the submissions of the Solicitor-General, “sufficiently broad to encompass more than applications for judicial review”. Instead, s 486A applies to remedies sought in applications for judicial review in relation to migration decisions. Section 484 of the Act, introduced by the same Act, denies to courts other than those identified in s 484(1) “jurisdiction in relation to a migration decision.” By reasoning analogous to Bodruddaza, the section denies jurisdiction in judicial review applications in relation to migration decisions. Jurisdiction in non-judicial review applications obtains. Further, if (as the defendants in SGS allowed), the Supreme Court had jurisdiction to hear a tort claim against the Commonwealth, I cannot see a basis for saying that s 484 (which denies that court jurisdiction in certain cases) would permit the remedy of damages but not the remedy of an injunction.

445 His Honour turned to Tang. After setting out some of the passages I have quoted above, his Honour recorded (at [52]) the plaintiff’s reliance upon “the conclusion expressed in the last sentence at [9] of Tang (Full Court) and [contention] that the expression ‘jurisdiction in relation to a migration decision’ in s 484 is confined to applications for ‘direct judicial review’ of a migration decision.” His Honour disposed of the submission at [53], on the basis that the final sentence—“Div 2 of Pt 8 of the Act is confined … to applications for direct judicial review of migration decisions”—did not form “an essential part of the ratio decidendi of Tang” (at [53]). Respectfully, I disagree. It was precisely the conclusion expressed in that sentence, being a conclusion as to the issue of statutory interpretation then before the Court, that allowed the Court to hold that it had jurisdiction. And, even if Hiley J was right in saying that the Court’s conclusion at [9] of Tang was not part of the ratio of the case, their Honours’ reasoning is persuasive and, respectfully, I would have followed it in any event.

446 Hiley J identified the purpose of Pt 8 Div 2 as being “to circumscribe the jurisdiction of all courts … to entertain applications which challenge migration decisions.” Consistently with Bodruddaza and Tang, I would have instead said that its purpose was to circumscribe the jurisdiction of courts to entertain judicial review applications in relation to migration decisions. Thus, respectfully, I would differ from Hiley J’s conclusion at [56]–[57] that s 484 precluded the issue of an injunction that would “effectively force the minister to make [a] migration decision,” even if sought by way of a remedy in a common law action in negligence (though inconsistency with the statutory scheme may well have gone to scope of duty). It seems to me from the rejection in Bodruddaza of the Solicitor-General’s submission that s 486A applies to tort claims that the use of the same words in s 484 means that courts retain their jurisdiction in such claims. Once it is accepted that the court has jurisdiction, I see no basis in s 484—which deals with jurisdiction and not remedies—for denying the availability of injunctive relief. I would decline to adopt the reasoning in SGS.

447 In any event, significant in his Honour’s reasoning (it seems to me) is that his Honour was under the apprehension (recorded at [21]) that even if the NT Supreme Court could not grant injunctive relief, some other court could. Of course, the import of the Minister’s submission in this case is that no other court could. The principle of legality is thus important in this case, and less so in SGS.

32.General principles of interpretation

448 For two other reasons I consider that the Minister’s interpretation is incorrect. The first is the principle of legality. The second and related reason is that the Minister’s interpretation would yield draconian and absurd results and that an intent to effect such results would not readily be ascribed to the legislature.

449 As to the content of the former, it suffices to quote two passages from X7 v Australian Crime Commission (2013) 248 CLR 92. At [86]–[87], Hayne and Bell J said this (emphasis in original):

[86] The question of statutory construction which arises in this case requires the consideration and application of a well-established rule. That rule, often since applied, was stated by O’Connor J in Potter v Minahan by quoting Maxwell’s On the Interpretation of Statutes:

“It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

(Emphasis added.)

[87] This rule of construction has found most frequent application in this Court with respect to legislation which may affect rights. In that context, it has come to be referred to as a “principle of legality”. But the rule is not confined to legislation which may affect rights. It is engaged in the present case because of the effects which the asserted construction of the ACC Act provisions authorising compulsory examination would have not only on the rights, privileges and immunities of a person charged with an indictable Commonwealth offence, but also on a defining characteristic of the criminal justice system. …

450 And, at [158], Kiefel J said this:

The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.

451 Very recently, Kiefel J’s statement of principle was approved in "R" v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433 at [40] (French CJ, Kiefel, Bell, Keane, Nettle and Gordon JJ).

452 And it is useful to re-iterate the fundamental principles of statutory construction, as recently set out in Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 at [47] (citations omitted):

As French CJ, Hayne, Crennan, Bell and Gageler JJ said in Federal Commissioner of Taxation v Consolidated Media Holdings Ltd: “This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. Context and purpose are also important. In Certain Lloyd’s Underwriters v Cross French CJ and Hayne J said:

“The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority, ‘[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute’ … That is, statutory construction requires deciding what is the legal meaning of the relevant provision ‘by reference to the language of the instrument viewed as a whole’, and “the context, the general purpose and policy of a provision and its consistency with fairness are surer guides to its meaning than the logic with which it is constructed”.

453 The final passage concerning context, general purpose, policy, and fairness is a quotation from Dixon CJ in Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, which passage was also cited by the Court (comprising French CJ, Gummow, Hayne, Kiefel and Bell JJ) in AB v State of Western Australia (2011) 244 CLR 390 at [10]. Their Honours continued (citations omitted):

The modern approach to statutory interpretation uses “context” in its widest sense, to include the existing state of the law and the mischief to which the legislation is addressed. Judicial decisions which preceded the Act may be relevant in this sense, but the task remains one of the construction of the Act.

454 The Minister’s submission was that if there was a breach of a duty of care and the applicant suffered damage, “she gets damages”. It was put that s 474 did not preclude that outcome because “that’s not calling into question the decision or its legal effectiveness; that’s putting propositions about the consequence of it being carried out, which have private law results”. In other words, the Minister’s submission was that if he engaged in tortious conduct, damages were available (having not been mentioned in s 474), but injunctive relief was not. And injunctive relief would not be unavailable just in this Court: as counsel for the applicant noted, the Minister’s interpretation of s 474 would cover every court in the country.

455 That, in my opinion, is a very large submission. It goes well beyond the tort of negligence. It extends to any tort committed or apprehended to be committed by the Minister, the Commonwealth, or an officer of the Commonwealth, using powers under the Act, but which is not, or is not yet, a jurisdictional error.

456 Suppose an applicant was being falsely imprisoned. Could it really be that the legislature intended that the falsely-imprisoned applicant could seek damages from the court from time to time during the course of his or her imprisonment, or after that imprisonment ended, but could never have the benefit of injunctive relief prohibiting his or her continued unlawful detention? Suppose it was clear that the Minister’s gross negligence would very shortly cause the death of hundreds of detainees. Could it really be that the legislature intended that no injunction could issue preventing the negligence and that the detainees’ descendants would have to wait for the detainees’ death and then seek damages?

457 Suppose the Minister purported unlawfully to expropriate all detainees’ property. Would an injunction to restrain a conversion not issue? Suppose the Minister indicated he intended unlawfully to introduce corporal punishment in processing centres. Would an injunction restraining a common law battery not issue? Or, take the present case: suppose that the Minister’s duty to the applicant extends to procuring for her a safe and lawful abortion and suppose that the Minister told the applicant he had no intention of so procuring. Could it really be that the Parliament intended that the applicant’s choices were to take the risk of an unsafe or unlawful abortion, or to take the risk associated with having no abortion at all, and if she suffered damage in either case she would then have an entitlement to a remedy against the Minister?

458 All of those outcomes are, in my judgment, irrational and draconian. They are inconsistent with the “general purpose and policy of [the] provision”, which (as I have identified above) is concerned with judicial review. They are inconsistent with fairness. They markedly depart from the general system of the common law so far as it pertains to apprehended or continuing torts. In my view they would overthrow several fundamental principles of the law, such as that there is no wrong without a remedy: ubi jus ibi remedium (see, e.g., The Western Counties Manure Company v The Lawes Chemical Manure Company (1873–74) LR 9 Ex 218 at 222 (Pollock B). Or, relatedly, the principle that equity suffers not a right without a remedy: Annuity and Rent Charge (1744) 1 Eq Ca Abr 31; 21 ER 851. Or, and most appositely, the following principle, from the speech of Lord Hanworth MR in Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235 at 241–242:

When the Court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the Court—it will act at once, and protect the rights of the party who is in fear, and thus supply the need of what has been termed protective justice. It is a very old principle. Sir E. Coke, 2nd Institute, p. 299, says 242 that "preventing justice excelleth punishing justice," and quotes Bracton's advice:

"Et hoc faciat tempestive, ne per negligentiam damnum incurrat, quia melius est in tempore occurrere quam post causam vulneratam remedium quaerere."

The Latin translates roughly to “it is better to restrain in time than to seek a remedy after the injury has been inflicted.”

459 Consistently with the principle of legality, “irresistibly clear words” would be required before I would construe s 474 as precluding the issue of injunctive relief in the case of a tortious wrong. I do not think the words are sufficiently clear. They bear also the less-offensive interpretation, consistent with authority, that injunctions in relation to judicial review applications are precluded.