Jurisdiction (the power to decide) is fundamental to all proceedings and applications. Sometimes, particularly in courts where power is limited by statute it can also become very complicated. The term “accrued” jurisdiction is often used without appreciating where the limits lie. In FJE20 v Minister for Home Affairs [2022] FCAFC 45 the applicant sought a number of injunctions (in relation to his removal to PNG) and declarations but also sought damages for a common law negligence claim. The primary judge found that the (then) Federal Circuit Court (FCC) didn’t have jurisdiction for the negligence claim. The Full Court dealt with the matter in two steps. The first involved a finding that some of the public law remedies were within jurisdiction (this is the decision I have just referred to) and the parties have been invited to  make more submissions about the negligence claim (incl whether the matter should be transferred to the Federal Court). In other words, there’s more to come!

The basic issues were:

  • FCC has original jurisdiction conferred by parliament;
  • Section 476 Migration Act gives the FCC the same jurisdiction as the High Court in relation to migration decisions;
  • migration decision is a defined term (s5) and it includes privative clause decision;
  • privative clause decision is defined in s474 Migration Act

Basically the argument was about the meaning of “in relation to”. There is authority for the proposition (Fernando) that s 476A(1) of the [Migration 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”.

There were also some interesting submissions (by the respondent) that the relief sought was hopeless, inutile and hypothetical. Just because a claim made within jurisdiction is weak or even hopeless only means that it will be dismissed within jurisdiction.

It sounds from the judgment as if (as a matter of case management – facilitate the resolution of the matter quickly, inexpensively and efficiently) the negligence claim is not within jurisdiction and that part of the claim will be transferred to the Federal Court.

Creative commons acknowledgment for the photograph.

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