FEDERAL CIRCUIT COURT OF AUSTRALIA
ADV21 v Minister for Home Affairs [2021] FCCA 1486
File number(s): SYG 92 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 5 August 2021 Catchwords: MIGRATION – application for release from detention – applicant brought to Australia from a regional processing centre for the temporary purpose of family reunion – 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 Legislation: Family Law Act 1975 (Cth)
Migration Act 1958 (Cth), ss 197AB, 197AC, 198AD, 198G
Cases cited: FDT20 v Minister for Home Affairs [2021] FCCA 711 Number of paragraphs: 22 Date of last submission/s: 6 July 2021 Date of hearing: 16 April 2021 Place: Sydney Solicitors for the Applicant: Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration Counsel for the Respondents: Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 92 of 2021 BETWEEN: ADV21
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:
DRIVER
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.The amended application filed on 21 May 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an application filed on 15 January 2021, the applicant seeks declarations that his detention by the respondents is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful. He seeks an order that he be released from detention forthwith.
The grounds in the application mirror those in numerous other applications before the Court filed by so called “medevac” applicants.
At the trial of this matter on 16 April 2021, I granted the applicant leave to file and rely upon an amended application. That was filed on 21 May 2021. In addition to the relief sought in the original application, the amended application also states:
The applicant seeks the following relief:
a.Prohibition against the application of the s.198AD(5) Direction to the Applicant.
b.A declaration that the applicant is not subject to any valid s.198AD(5) direction and hence that s.198AD is not engaged to provide a purpose for the detention.
c. A declaration that the holding of the applicant in held custody is ultra vires of the custodial power of the Commonwealth due to not having a lawful purpose.
d. An order of habeas corpus requiring the respondent release the [applicant] from custody forthwith.
e. In the event that the Court cannot make orders of habeas corpus, mandamus compelling the Respondent to remove the applicant to Nauru.
f. The respondent pay the applicant’s costs as agreed or taxed.
The grounds in the amended application are:
1.The detention is unlawful because the [respondents] failed to remove the Applicant to the relevant regional processing country as required by ss.198(1) and s.198AD(2)…
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- Case
- [2021] FCCA 1486
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the applicant's continued detention in Australia was lawful, given his expressed wish to return to Nauru and the detrimental impact his circumstances had on his family. The Court was required to consider the applicant's consent to detention upon his transfer to Australia and the broader implications of his detention for the purpose of family reunion.
Driver J found that the applicant's detention in Australia had been and remained lawful, primarily because the applicant had agreed to such detention by signing the transfer form. However, the Court acknowledged that the applicant's continued detention at the Villawood Immigration Detention Centre was contrary to the objective of family reunion for which he was brought to Australia, and expressed a strong desire for an alternative arrangement to be found. Despite this, the applicant failed to satisfy the Court that he was entitled to any of the relief sought in his application. Consequently, the application was dismissed, with the Court to hear the parties on the issue of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
At the trial I received oral evidence from the applicant, his ex wife and his two daughters.[2] I accept from that evidence that the applicant experienced harm in Nauru and that the pressures of living there was a factor leading to the divorce of his wife. I also accept that the elder of the two daughters is troubled by her circumstances which has led to conflict with her mother and at least one criminal charge. Following the trial I received information that the elder daughter had run away from her foster carers. Both she and the applicant have threatened self harm. The elder daughter threatened self harm unless she is reunited with her father. For reasons it is impossible for me to understand, the applicant threatened self harm unless he is returned to Nauru. Conversely, the elder daughter threatened self harm if the applicant is returned to Nauru.[2] The applicant furnished after the hearing a short video of him reuniting with his daughtersCONSIDERATION The circumstances of this family are extremely problematic. I can only commend to the respondents the residence determination under s 197AC of the Migration Act, which is apparently receiving consideration in the respondents’ Department. The statutory provisions bearing upon this case have been explored at length in earlier proceedings in the High Court, the Federal Court and this Court recently by me in FDT20 v Minister for Home Affairs[3] in relation to a significant number of medevac applicants. Likewise, the legal principles relating to the relevant provisions have been explored at length. I do not need to repeat them here.[3] [2021] FCCA 711 The applicant arrived at Christmas Island by boat as an unauthorised maritime arrival on 25 July 2013.[4] He was transferred to Nauru under s 198AD of the Migration Act on 20 August 2013.[5] [4] Venant affidavit at [6][5] Venant affidavit at [6] The applicant’s ex wife and two children were transferred to Australia for medical treatment in 2017 and the applicant was transferred for family reunion purposes in May 2019.[6] A copy of the Ministerial approval document for transfer pursuant to the now repealed s 198G(2) of the Migration Act dated 18 April 2019 appears at page 35 of the court book and a transfer agreement signed by the applicant, dated 8 May 2019 is at page 37 of the court book.[6] applicant’s affidavit, 9 January 2021 and Venant affidavit at [7] At page 7 of the court book and annexed to the applicant’s affidavit of 9 January 2021 is what purports to be a signed written request form by the applicant dated 24 December 2020 which states:I want to go back to Nauru. I accept from Mr Venant’s affidavit that the applicant has not raised that desire with him and I also accept from the affidavit of Ms Sullivan that, taking the request at face value, she has begun a process of removal and was, at the time of her affidavit, awaiting a medical report. I accept that the respondents learned only a short time before the trial of the matter of the applicant’s apparent wish to return to Nauru.