FRM17 v Minister for Home Affairs [2019] FCAFC 148 (28 August 2019) (Kenny, Robertson and Griffiths JJ)


Catchwords:


MIGRATION – refugees on Nauru – proceedings in negligence against Commonwealth parties commenced in the Federal Court of Australia by transitory persons – whether those proceedings required by s 494AB of the Migration Act 1958 (Cth) to be commenced in the High Court of Australia – s 494AB(1), so far as relevant, provides that the following proceedings against the Commonwealth may not be instituted or continued in any court except the High Court: (a) proceedings relating to the exercise of powers under s 198B; (ca) proceedings relating to the performance or exercise of a function, duty or power under Subdiv B of Div 8 of Pt 2 in relation to a transitory person; (d) proceedings relating to the removal of a transitory person from Australia under the Migration Act

PRACTICE AND PROCEDURE – determination of separate questions in each of four proceedings in the nature of test cases, those questions being: (1) when the proceeding was commenced in the Federal Court of Australia, was the effect of s 494AB of the Migration Act that it could not be instituted?; and (2) is the effect of s 494AB of the Migration Act that the proceeding cannot be continued in the Federal Court?