Paul Cutler's Migration Case Law Blog

Even those of us who didn’t do very well at constitutional law know that having a matter is a pre-requisite for federal jurisdiction. In AZC20 v Minister [2023] HCA 26 the High Court found that there had been no matter before the Full Federal Court.

The facts

The facts of AZC20 (which are a bit complicated and involve several sets of proceedings and appeals) were that:

1. AZC20 is an Iranian gentleman who arrived in Australia by boat in 2013;
2. His protection visa application was unsuccessful and he has been held in immigration detention ever since his arrival;
3. He commenced proceedings in the FCA seeking orders that the Minister remove him as soon as practicable to an offshore processing facility (s198AD);
4. He was successful in obtaining that order, together with an order that as an interim step he be moved to home detention (in the home of one of his supporters)
5. On the day that the home detention was to take effect, two things happened. Firstly, Nauru advised it would not take AZC20 and secondly the Minister used the power under 198AE (to waive the requirement for removal under 198AD).

That resulted in the Commonwealth making an application in the FCA to vacate the orders, while AZC20 sought to vary them to ensure compliance with the home detention orders. Those applications were both refused. The Commonwealth appealed. AZC20 then started the “s198 mandamus proceeding” which was eventually moved into the FCA where it was adjourned pending the appeal. During the hearing, the Full Court raised the issue about whether the utility of the appeals was of general wider importance but unrelated to AZC20. It proceeded by considering the questions before it as one of “discretion” not “jurisdiction” and allowed both of the Commonwealth appeals.

By the time the matter gets to the High Court, the issue is whether there was a “matter” before the Full Court.

What’s a matter?

 A matter has two elements:

• the subject matter itself as defined by reference to the heads of jurisdiction [in ss 75 and 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy
• The second requirement to identify some “immediate right, duty or liability” to be established by the determination of the court “reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy”. That requirement applies in both original and appellate jurisdiction.

The decision

The High Court explained (at [35]-[36]):

[35] On appeal, therefore, the question is not whether the party can establish the claimed legal right, duty or liability, as that question has been determined. The question is not whether the party continues to have the interest necessary to obtain relief, because that question has been overtaken by the grant of relief or by the refusal of relief. The question on appeal and for determination on appeal is whether the orders of the primary judge should be affirmed, varied or reversed – that is, whether the appeal should be allowed and, if so, what orders should be made in the place of the primary judge’s orders. But the appellate court’s supervisory function over the exercise of original jurisdiction by the primary judge is not an end in itself. The second element required to form a “matter” still applies – there must be a controversy over some immediate right, duty or liability. Usually, there is a live controversy because the orders of the primary judge continue to have effect in determining the parties’ rights, duties or liabilities, unless set aside on appeal. In seeking to appeal the orders made at first instance, one or more of the parties are seeking to challenge the continuing effect of the orders on the determination of their respective rights, duties or liabilities. As will be explained, that critical feature – any controversy over the continuing effect of the orders on the parties’ rights, duties or liabilities – was absent in the appeals before the Full Federal Court.

[36] The appellant submitted before this Court that there was no “matter” before the Full Federal Court because the orders that the Commonwealth parties sought to appeal had no operative legal effect by the time the Full Court determined the appeals. At the time the appeals were filed, Nauru had informed Australia it would not accept the appellant and the Minister had voluntarily engaged s 198AE such that s 198AD did not apply to the appellant. Since the home detention order was dependent on the s 198AD mandamus order, the events rendering the s 198AD mandamus order inoperative similarly made the home detention order inoperative. Even if there was a “matter” when the appeals were filed, there ceased to be a “matter” from the moment during the hearing when the Commonwealth parties undertook not to seek the costs of the trial or the appeals.

Creative commons acknowledgment for the photograph.