Abdel-Hady v Minister for Home Affairs & Anor [2021] HCATrans 178 (28 October 2021)

Last Updated: 1 November 2021

[2021] HCATrans 178

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2021

B e t w e e n -

SAFWAT ABDEL-HADY

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY

ON THURSDAY, 28 OCTOBER 2021, AT 9.32 AM

Copyright in the High Court of Australia

HIS HONOUR: The orders I make are as follows:

1. Insofar as the amended application seeks relief in respect of the decision to cancel the plaintiff’s visa pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”) and insofar as it relies on the first four grounds which it sets out, the amended application is dismissed.

2. Insofar as the amended application seeks relief by way of a declaration or a writ of prohibition or habeas corpus in respect of the immigration detention of the plaintiff, and insofar as it relies on the fifth of the grounds which it sets out, the part of the matter raised by those parts of the amended application is remitted to the Federal Circuit and Family Court of Australia (Division 2) (“the Federal Circuit Court”).

3. The proceeding in that part of the matter referred to in order 2 is to continue in the Federal Circuit Court as if the steps taken in the application in this Court had been taken in that Court.

4. The Registrar of this Court forward to the proper officer of the Federal Circuit Court copies of all documents filed in this Court.

5. The costs of the proceeding in this Court to date are to be costs in the cause in the Federal Circuit Court.

I publish those orders. I also publish my reasons and I direct that those reasons be incorporated into the transcript.

The plaintiff in this application for a constitutional or other writ filed in the original jurisdiction of the High Court is a citizen of Austria whose visa was cancelled by the then Minister for Immigration and Border Protection under s 501(2) of the Migration Act 1958 (Cth) (“the Act”) and who is in immigration detention under s 189(1) of the Act. The defendants are the Minister for Home Affairs and the Commonwealth of Australia.

The application, as amended, is framed to seek relief in respect of two identified decisions: the decision to cancel the plaintiff’s visa under s 501(2) of the Act; and the decision to take the plaintiff into, and keep him in, immigration detention under s 189(1) of the Act. In respect of those decisions, the application compendiously seeks relief by way of declarations, writs of prohibition and habeas corpus, and damages for false imprisonment.

Of the five grounds on which the application is based, four of them are in substance directed to the decision to cancel the plaintiff’s visa under s 501(2) of the Act. In circumstances where the plaintiff has been unsuccessful in challenging that decision at first instance in the Federal Court (Abdel-Hady v Minister for Immigration and Border Protection [2018] FCA 535), on appeal to the Full Court of that Court (Abdel‑Hady v Minister for Immigration and Border Protection [2018] FCAFC 164) and in an application for special leave to appeal to this Court (Abdel‑Hady v Minister for Immigration and Border Protection [2019] HCATrans 077), his attempt to re-challenge the decision now on those grounds in the original jurisdiction of this Court is an abuse of process: Plaintiff S3/2013 v Minister for Immigration and Citizenship (2013) 87 ALJR 676 at 678 [9]-[14]; 297 ALR 560 at 562-563.

The application will be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) insofar as it seeks relief in respect of the decision to cancel the plaintiff’s visa under s 501(2) of the Act and insofar as it relies on the first four grounds which it sets out.

The fifth ground on which the application is based, in contrast to the other four, is properly directed to the decision to take the plaintiff into, and keep him in, immigration detention under s 189(1) of the Act. By reference to medical conditions of which he has provided some evidence, the plaintiff claims that he is and has been medically unfit to make the journey to Austria and therefore faces and has faced the prospect of remaining in detention without being able to be removed. Having regard to the reservation expressed in The Commonwealth v AJL20 [2021] HCA 21; (2021) 95 ALJR 567 at 577 [26]; [2021] HCA 21; 391 ALR 562 at 570, and in the absence of a trial of fact, I am unable to regard as manifestly unarguable his contention that his continuing detention was and is unlawful.

That part of the matter by which the plaintiff seeks relief by way of a declaration, writ of prohibition or writ of habeas corpus in respect of the decision to take the plaintiff into, and keep him in, immigration detention in reliance on the fifth ground set out in the application will therefore be remitted under s 44(1) of the Judiciary Act 1903 (Cth) to the Federal Circuit and Family Court of Australia (Division 2). I am satisfied that the Federal Circuit and Family Court of Australia (Division 2) has jurisdiction in relation to that part of the matter under s 476(1) of the Act.

On the authority of DBE17 v The Commonwealth [2019] HCA 47; (2019) 266 CLR 156 at 162-165 [11]- [19], however, there is a difficulty remitting to the Federal Circuit and Family Court of Australia (Division 2) that part of the matter by which the plaintiff seeks damages for false imprisonment. If the plaintiff were to be successful in obtaining a declaration in the Federal Circuit and Family Court of Australia (Division 2) that the whole or some part of his detention has been unauthorised, that part of the matter by which he seeks damages for false imprisonment might well later be remitted to the Federal Court under s 44(2A) of the Judiciary Act without contravention of s 476B(1) of the Act. For the time being, it will remain in this Court.

AT 9.33 AM THE MATTER WAS ADJOURNED