What’s the matter?

Rachel Thampapillai

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26

By majority, the High Court has held that the Full Court of the Federal Court of Australia did not have jurisdiction to determine an appeal brought from orders made by a single judge of the Federal Court at first instance because at the time of the hearing and determination of the appeal the primary judge’s orders did not have ongoing effect. For that reason, there was no ‘matter’ within the meaning of Ch III of the Constitution.


The appellant (AZC20) a citizen of Iran, arrived in Australia by boat in July 2013. Following the final refusal of his protection visa application in February 2021, he commenced two proceedings in the Federal Court of Australia seeking a number of orders. Relevantly, he sought an order to require his removal from Australia to a regional processing country in accordance with the duty in s 198AD(2) of the Migration Act 1958 (Cth). The primary judge made orders in his favour declaring that s 198AD(2) applied to him, requiring the Secretary of the Department of Home Affairs to perform that duty by removing him as soon as reasonably practicable, and requiring that pending performance of the duty, AZC20 be detained at the home of one of his supporters (the home detention orders).

Two weeks later, on the day that the home detention orders were to come into effect, the Minister for Home Affairs exercised the discretionary power in s 198AE(1) of the Act to determine that the duty in s 198AD(2) did not apply to AZC20. Further, Nauru advised Australia that it would not accept him, which had the effect (by reason of s 198AG of the Migration Act) that s 198AD did not apply to him. The Commonwealth parties then filed notices of appeal in the Full Court against the primary judge’s orders.

The Full Court proceedings

Before the Full Court, the Commonwealth parties contended that the primary judge had erred in holding that s 198AD(2) of the Act applied to AZC20, and secondly, that primary judge had erred in making the home detention orders. AZC20 subsequently lodged a new proceeding before the primary judge, alleging that the Secretary had failed to pursue or carry into effect his removal from Australia under s 198 of the Migration Act as soon as reasonably practicable, and that he could not lawfully be removed to Iran. The orders sought were that he not be removed to Iran, and that any detention of him occur in the form of home detention at a particular place.

Before the Full Court, it was accepted by the Commonwealth parties that the orders of the primary judge had no ongoing effect. By operation of the s 198AE determination, there was no longer any duty under s 198AD to be complied with. The home detention orders, which were made pending compliance with that duty, could also not have any further effect. The orders in respect of which the Commonwealth parties had appealed were therefore moot.

However, the Commonwealth parties submitted the appeals were not futile on the base that there was overlap with the new (s 198 mandamus) proceeding. The Commonwealth parties further submitted that even if the issues were rendered moot, there was still a discretion to hear the appeals on the basis that there was a significant public interest in the outcome, because there were approximately 130 people affected by the primary judge’s conclusion that the applicable duty for persons in AZC20’s position was the s 198AD duty.

In light of the Commonwealth parties’ submission as to the broader significance of the primary judge’s decision, and the course of events after the primary judge made the 13 October 2021 orders, the Full Court raised with senior counsel for the Commonwealth parties at the hearing whether the Commonwealth should pay AZC20’s costs of the appeal, given the principal utility of the appeals related to matters of general importance. Following the hearing, the Commonwealth parties filed amended notices of appeal in the Full Court to reflect that they would not seek to disturb the costs orders made below and that they would pay AZC20’s costs of the appeals.

In its reasons for judgment, the Full Court treated the question of mootness of the orders as one of discretion, not jurisdiction. It accepted that the decision about AZC20’s status under the Act might be relevant to the issues extant in the s 198 mandamus proceedings. The Full Court further accepted that the appeals were a suitable vehicle to determine the issue of the correctness of the orders, noting other judges of the Federal Court had been invited to follow the primary judge’s reasons.

Decision of the High Court

Before the High Court, AZC20 contended 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 at the time of the hearing and determination of the appeals. The primary submission of the Commonwealth parties, on the other hand, was that there will always be a ‘matter’ where there is a decision made at first instance and an appeal about the correctness of that decision.

The plurality of Kiefel CJ, Gordon and Steward JJ rejected that submission. Their Honours held that the question on an appeal is whether the orders of the primary judge should be affirmed, varied or reversed, but that an appellate court’s supervisory function over the exercise of original jurisdiction is ‘not an end in itself’. Rather, there must still be a ‘controversy over some immediate right, duty or liability.’ The plurality observed that usually, this is because the orders of the primary judge continuing to have effect in determining rights, duties or liabilities until set aside, but that this ‘critical feature’ was ‘absent in the appeals before the Full Federal Court’ (at [35]). The plurality also rejected the Commonwealth’s submissions based on precedential significance of decisions of single judges, stating that this would amount to asking the court to issue an ‘advisory opinion’ (at [48]). The plurality observed that if the Commonwealth parties wished to challenge the conclusion that s 198AD applied or the validity of the home detention orders, they should have sought an expedited appeal before the Full Court.

Edelman J, agreeing with the majority judgment, considered that it was ‘a basic logical error to conclude that the different content of a legal controversy on appeal means that no legal controversy is required on an appeal’ (at [92]).

A dissenting judgment was delivered by Gleeson J, who concluded that there was a ‘matter’ before the Full Court. Her Honour reasoned that the invocation of federal appellate jurisdiction did not require the identification of a matter, distinct from the ‘matter’ as instituted at first instance. There was a ‘matter’ because the appeals were concerned with whether there was an error in the exercise of original jurisdiction by the Federal Court, where the dispute before the Federal Court undoubtedly involved a justiciable controversy concerning concrete rights and liabilities (at [136]). Her Honour also concluded that the appeals were not ‘divorced from any attempt to administer’ the law, because the Commonwealth had a real, practical interest in correcting the errors of the primary judge by reason of the precedential significance for existing disputes between the Commonwealth and other parties, and potentially for the continuing litigation between the Commonwealth parties and AZC20 (that is, the s 198 mandamus proceeding) (at [139]).

Consequences and curiosities

There are both curiosities within the reasons of the majority, and curious consequences that follow from the decision.

The first is the manner in which the majority sought to distinguish Mellifont v Attorney-General (Q) (1991) 173 CLR 289. That case concerned an application for special leave to appeal a decision of the Court of Appeal of the Supreme Court of Queensland deciding a question of law pursuant to s 669A of the Criminal Code (Qld). This provision allowed a question of law arising in a criminal trial to be referred to that Court in circumstances where the accused person had been acquitted or discharged. The issue there was whether the judgment of the Court of Appeal was a ‘judgment degree or order’ within s 73 of the Constitution from which an appeal could be brought to the High Court. The High Court there held that it was. In seeking to distinguish that decision, the plurality stated it was ‘decided in a very particular context’ (at [43]). But in Mellifont, as in the proceedings before the Full Court, there was no effect on rights and liabilities, beyond the correction of error at first instance. Whatever ‘particular context’ the majority had in mind, Mellifont remains a decision decided in the context of Ch III of the Constitution and it is difficult to discern how there could be a special constitutional rule only for the questions reserved procedure or in the criminal law.

The second was the way in which the majority dealt with the issue of costs. Costs were in issue when the appeal was commenced, and there is a long line of authority (cited by the plurality at [47]) that a dispute as to costs is sufficient to constitute a ‘matter’. The majority hinted, but did not decide, that costs might be insufficient, describing this as the ‘tail’ wagging ‘the dog’ (at [58]). That in itself is surprising: an order for costs is an order for one party to pay money to another on a particular legal basis. But assuming the majority was not seeking to cast doubt on that substantial line of authority, the only thing which deprived the Full Court of jurisdiction was that, at the urging of the judges of the Full Court, and after the hearing of the appeal but before judgment was delivered, the Commonwealth filed amended notices of appeal reflecting that it would not disturb costs below and would pay the reasonable costs of the appellant of the appeal. It is surprising that federal appellate jurisdiction is capable of being withdrawn from the Court by the unilateral act of one party to withdraw its pursuit of costs. The practical effect might also be to discourage the Commonwealth from taking a reasonable position on costs in future cases.

Finally, the decision limits the ability of the Federal Court exercising federal appellate jurisdiction to correct error, in circumstances where judgments of single judges in the Federal Court will be binding on judges of the Federal Circuit Court and Family Court, and followed by single judges of the Federal Court unless a litigant can meet the high burden of establishing the earlier single judge was ‘plainly wrong.’ The decision would appear to lead to the undesirable outcome of perpetuating error in the administration of justice.

Noting that the High Court did not sit a bench of seven to determine this case, it may be that AZC20 is not the last word from the High Court on ‘matters’ in federal appellate jurisdiction. BN

Rachel Thampapillai

Seventh Floor Garfield Barwick Chambers