Adm21 v Minister for Home Affairs
[2021] FCCA 1488
•9 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
ADM21 v Minister for Home Affairs [2021] FCCA 1488
File number(s): SYG 81 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 9 August 2021 Catchwords: MIGRATION – Application for release from detention – applicant brought to Australia from a regional processing centre for the temporary purpose of medical treatment – whether the applicant still needs to be in Australia and whether the respondents are under an obligation to remove him from Australia considered – lawfulness of the applicant’s detention considered – application dismissed in part. Legislation: Migration Act 1958 (Cth) ss 189, 196, 198AD, 198AH, 198B Cases cited: FDT20 v Minister for Home Affairs [2021] FCCA 711 Number of paragraphs: 21 Date of last submission/s: 6 July 2021 Date of hearing: Decided without oral hearing Place: Sydney Solicitors for the Applicant: Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration Counsel for the Respondents: Mr P Knowles, Ms C Ernst, Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 81 of 2021 BETWEEN: ADM21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)
Third Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
9 AUGUST 2021
THE COURT ORDERS THAT:
1.The applicant’s claims for declarations relating to his detention and orders for his release from detention are dismissed.
2.Without limiting the discretion of the registrar to permit other matters to be raised and agreed between the parties, questions of:
(a)whether, and if so when, the applicant will be removed to a regional processing country as soon as reasonably practicable; and
(b)which parties should pay the costs of this proceeding
be referred to mediation before a registrar of the Court as soon as possible.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an application filed on 14 January 2021, the applicant seeks orders in the form of declarations that his detention is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful. He also seeks orders that he be released from detention forthwith and costs.
The grounds of the application are:
1.The detention is unlawful because the [respondent] is unwilling or unable to remove the Applicant to the relevant regional processing country as required by ss.198(1) and 198(1A) and s.198AD(2) of the Migration Act 1958;
Particulars.
i.The applicant was subject of a written direction by the Minister under s.198AD(5) of the Migration Act 1958 designating a relevant regional processing country, Nauru.
ii.The applicant was recognised as a refugee.
iii.The applicant self-harmed and attempted suicide
iv.The applicant was transferred to Australia for emergency medical treatment
v.The applicant was forcibly prevented from receiving medical treatment by being detained whilst an inpatient.
vi.The applicant was denied medical treatment in Australia while held in detention.
vii.The Respondents have not provided and are unwilling or unable to provide the medical treatment for which the applicant was brought to Australia.
viii.The applicant made written requests to the Respondents for removal to Nauru as the relevant regional processing country in about September 2019, April 2020, and also on 8th December 2020.
ix.The Defendants have not taken reasonable and necessary steps to carry into effect their obligation to have the applicant available for removal to the relevant regional processing country as soon as reasonably practicable as required by s.198(1), s.198(1A) and s.198AD(2) of the Migration Act 1958.
x.The Minister is in breach of his duty under s.198(1) and s.198(1A), and s.198AD(2) of the Migration Act 1958.
xi.The detention of the applicant is not supported by any lawful purpose as required by the Migration Act 1958.
xii.The release of the applicant is essential to terminate the breaches of s.198(1), s.198(1A), and s.198AD(2) [of] the Migration Act 1958.
xiii.The Respondents have not and are unable to fulfill their duty of care to provide a safe environment for the applicant.
The matter was listed to be heard with a number of other matters over the period 12-16 April 2021 but it was not reached. It was agreed with the parties that the matter would be heard and determined on a final basis on the papers.
On 28 May 2021 the applicant filed an Application in a Case seeking an injunction restraining the respondents from removing the applicant to Nauru as well as other relief, including an order for mandamus, requiring the respondents to undertake a non-refoulement assessment of the applicant with respect to Nauru.
The particularised grounds in the Application in a Case are:
1.The Respondent has taken steps to remove the applicant to Nauru on 26th May 2021, without undertaking the obligatory consideration of the applicant’s non-refoulement claims.
Particulars
i.The Applicant is a stateless person entitled to raise claims under the Refugees Convention against refoulement to Nauru.
ii.The Applicant has raised non-refoulement claims against Nauru.
iii.The Respondent has failed to make an assessment of the applicant’s non-refoulement claims against Nauru.
iv.The process of removal under s.198AD constitutes an expulsion of a refugee to a country where his life and liberty would be threatened.
v.S.197C of the Migration Act 1958 has no application to an involuntary removal under s.198AD.
vi.The applicant has been declared a refugee.
vii.The removal of the applicant to Nauru would threaten his life and liberty
2.The proposed removal is against available medical evidence from Dr Firestone that his medical condition would be at grave risk in Nauru.
On 2 June 2021 the Court accepted undertakings from the respondent Ministers not to remove the applicant (and a number of other applicants in the same position as the applicant) from Australia until the decision of the Court on the applications.
I have before me as evidence the following material:
(a)the applicant’s affidavits made on 10 January 2021 and 9 April 2021;
(b)the affidavit of Kate Carroll, the applicant’s status resolution officer, (SRO) made on 8 April 2021;
(c)the affidavit of Alana Sullivan made on 9 April 2021;
(d)the affidavit of Dr Andrew Felix Firestone (psychiatrist) made on 21 April 2021; and
(e)the court book filed on 26 March 2021; and
(f)a video deposition made and furnished to the Court on 22 April 2021.
CONSIDERATION
The legal issues impacting upon the applicant, both in terms of the applicable provisions of the Migration Act and the interpretation of them, have been discussed in other proceedings in the High Court, the Federal Court and this Court. I traversed the legal issues at some length in FDT20 v Minister for Home Affairs[1] and I do not need to repeat that analysis here.
[1] [2021] FCCA 711
The applicant arrived in Australia on 22 September 2013 and upon arrival he was detained under s 189(1) of the Migration Act.[2] An assessment was made that the applicant must remain in immigration detention until either of the events detailed under s 196(1) of the Migration Act occurs. On 25 October 2013, the applicant was taken to Nauru under s 198AD of the Migration Act.[3]
[2] Court Book, page 114
[3] affidavit of Ms Carroll at [6]
I accept from the affidavit of Ms Carroll that on 29 November 2018, the applicant was transferred to Australia under s 198B of the Migration Act owing to his need for specialised care for a head injury (with consequential personality and behavioural issues, and his impulsive behaviour, history of suicide attempts, diagnosed active psychotic illness, poor insight and poor adherence to medication).[4]
[4] affidavit of Ms Carroll at [7]
On or about 8 December 2020, the applicant made a written request to be returned to Nauru.[5] The request was sent to the regional resettlement section in the respondents’ Department. On 4 February 2021 the applicant again requested to be returned to Nauru. His second request was acknowledged with a response that the request was under consideration.[6]
[5] see attachment to applicant’s affidavit of 10 January 2021 and Annexure AS-2 to affidavit of Ms Sullivan
[6] affidavit of Ms Carroll at [8]-[9]
Ms Carroll refers to a clinical advisory team opinion dated 20 March 2021 which states that the management of the temporary purpose for which the applicant was brought to Australia is complete.
Ms Carroll deposes that since she became the applicant’s SRO she has been satisfied that he is not an Australian citizen or an Aboriginal Australian, he does not hold a valid visa, he is therefore an unlawful non citizen and as a result, and as a delegated officer under s 189 of the Migration Act, she must detain or cause the applicant to be detained by reason of s 189. I accept that evidence.
The affidavit of Ms Sullivan corroborates the evidence of Ms Carroll. Annexed to Ms Sullivan’s affidavit are further health assessments concerning the applicant. Ms Sullivan deposes that while the initial assessment of the treatment of the applicant’s acute mental health symptoms was considered to be complete, the applicant was at the time of her affidavit receiving ongoing general practitioner and psychiatry reviews.
Ms Sullivan also deposes as to the active steps taken to remove the applicant to Nauru, initially intended to occur on 12 April 2021 and then deferred to 15 April 2021 due to a shortage of hotel quarantine spaces on Nauru. The charter flight on 15 April 2021 was confirmed but the applicant was not removed in light of these proceedings and, subsequently, the undertaking of the Ministers.
The applicant deposes as to his physical and mental health problems and his experiences in Nauru. He states that while he has twice requested to be removed to Nauru, these were not “voluntary” and that he was afraid to return to Nauru. I accept that evidence.
The most recent medical assessment of the applicant is that of Dr Firestone made on 21 April 2021. Relevantly, Dr Firestone gives the opinion that there is no evidence of psychosis impacting the applicant since his removal from Nauru. He believes an earlier diagnosis of schizophrenia was mistaken and that the applicant was experiencing a psychotic depression in Nauru. Dr Firestone opines that the applicant should be encouraged to withdraw his request to return to Nauru.
I accept the opinion of Dr Firestone which supports the respondents’ own assessments that the temporary purpose for which the applicant was brought to Australia has been achieved and he no longer needs to remain in Australia. However, the applicant’s removal to Nauru would appear to be problematic given his experiences there and his expression of fear. The opinion of Dr Firestone is that the return of the applicant to Nauru would be antithetical to his mental health.
CONCLUSION
I find that the detention of the applicant was and remains lawful. It follows that the applicant is not entitled to the relief sought in his original application.
I find, consistently with the medical evidence relied on by both the applicant and the respondents, that the applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia. It is not necessary to make a declaration to that effect as it is not a disputed issue between the parties. It follows that the three pre-conditions in s 198AH(1A) are met and the duty in s 198AD(2) is engaged.
It will be desirable if the somewhat difficult issues of how the duty of removal is to be met is discussed between the parties. I will order that the application be dismissed and that the Application in a Case be subject to mediation.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 9 August 2021
SCHEDULE OF PARTIES
SYG 81 of 2021 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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