Adv21 v Minister for Home Affairs

[2021] FCCA 1486

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

1. 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.

2. The grounds in the application mirror those in numerous other applications before the Court filed by so called “medevac” applicants.

3. 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.

4. 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) of the Migration Act 1958;

   1.The detention is unlawful because the Respondent has thwarted the purpose for which the applicant agreed to be brought to Australia by refusing to allow family reunification by way of a s.197AB residence determination, thus engaging the s.198AH(1A) and s.198AD(2) obligation to remove the applicant from Australia from on or about 13th May 2019.

   2.By failing to remove the applicant from 13^th May 2019 pursuant to s.198AD(2), the Respondent kept the applicant in held custody of the Commonwealth without lawful cause or Constitutional purpose for 23 months.

   3.The failure to remove the applicant pursuant to the s.198AD(5) Direction as soon as reasonably practicable exhausted the application of the s.198AD(5) direction, such that the power is spent and its application to the applicant is an abuse of process.

   4.The disengagement of the applicant from the s.198AD(5) Direction disengages the applicant from the operation of the regional processing provisions, including any suspended operation, of s.198AD of the Migration Act 1958.

   5.In refusing or failing to make a residence determination, and at the same time refusing or failing to remove the applicant to Nauru pursuant to s.198AD(2), the Respondent acted in bad faith.

   Particulars to all grounds.

   i.The applicant signed a Refugee Transfer Agreement with the Australian Border Force on behalf of the Respondent on 8th May 2019 to be transferred to Australia for the purpose of family reunification.

   ii.The applicant was given to understand from the agreement that he would be in community detention with his family who were in community detention and thus able to reunite with them.

   iii.The applicant was subsequently transferred to Australia under now repealed s.198C(5) for the sole purpose of and with oral undertakings that he would be reunited with his family as members of the same family unit.

   iv.From 13th May 2019 the Respondent failed or refused to act on the 13th May 2019 referral form the Department recommending that a community detention (residence determination) be made under s.197AB so that the applicant could reunite with his family.

   iv.The Respondent was in clear breach of the agreement between the applicant and an officer the ABF signed on 8th May 2019.

   v.The Respondent kept the applicant in custody thus depriving the applicant’s oldest daughter from having a responsible parent.

   vi.The Respondent’s decision to keep the applicant in held custody was inimicable to the purpose for which the applicant was brought to Australia and kept in Australia.

   vii.The Respondent’s decision to keep the applicant in held custody was inimicable to the best interests of both his children.

   ix.The Minister in the position of parens patriae to the unaccompanied older daughter, has acted against the best interests of the child in failing to make the residence determination and thus holding the applicant in held custody.

   x.As a result of the decision of the Respondent to keep the applicant in held custody by not making a decision on the Residence Determination referral, the applicant no longer needed to be in Australia from or about 13th May 2019 for the temporary purpose for which he was brought to Australia as he was not reunited with his family.

   xi.The Respondents 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.198AD(2) of the Migration Act 1958.

   xii.The Minister is in breach of his duty under s.198AD(2) of the Migration Act 1958.

   xiii.The detention of the applicant is not supported by any lawful purpose as required by the Migration Act 1958.

   xiv. The release of the applicant is essential to terminate the breaches of s.198(1), and s.198AD(2) the Migration Act 1958.

5. The leave I granted required the substitution of the word “unlawfully” in lieu of “in bad faith” in Ground 5. 

6. On or about 7 June 2021, the applicant’s solicitor provided to my chambers and the respondents’ solicitors a proposed Application in a Case seeking to add one of the applicant’s two daughters as a respondent, the appointment of an Independent Children’s Lawyer for that child, the addition of the child’s mother as a respondent and parenting orders under the Family Law Act 1975 (Cth) (Family Law Act). I declined to deal with that application as it involved an intermingling of proceedings under the Migration Act as well as under the Family Law Act. I invited the applicant to consider commencing separate proceedings under the Family Law Act in a family law registry of the Court seeking parenting orders in relation to either or both of the children.

7. At the trial on 16 April 2021, I was informed by the respondents’ solicitors that consideration was being given to the making of a residence determination under s 197AC of the Migration Act in respect of the applicant. It does not appear that any decision has been made by either of the respondent Ministers in relation to that question which is, in any event, beyond the scope of this proceeding.

8. For the purpose of dealing with the proceeding before me, I have before me the following evidence:

   (a)the applicant’s affidavit made on 9 January 2021 and filed with his original application.  The applicant deposes that he came to Australia in 2013 with his ex wife and two daughters.  His ex wife and two daughters were transferred to Australia for urgent medical treatment in 2017 from Nauru.  The applicant was brought to Australia under the medevac legislation to reunite with his children in May 2019.  He was not brought to Australia for medical treatment.  The applicant’s ex wife and children are in community detention while the applicant is held in detention (currently in Villawood).  The applicant deposes that COVID-19 restrictions prevent him from seeing his daughters;

   (b)an affidavit made by the applicant on 20 March 2021 in which the applicant deposes as to his two daughters self harming and attempting suicide. He annexes psychiatric and psychologists’ reports concerning his daughters and a request for Ministerial intervention dated 22 December 2020 and made under s 197AB;

   (c)the court book filed on 30 March 2021;

   (d)an affidavit made on 7 April 2021 by the applicant’s elder daughter (15 years of age).  She deposes that she does not want to live with her mother and she is living with carers.  She wants to be with her father;

   (e)the affidavit of Christopher Venant made on 8 April 2021 (Venant affidavit).  Mr Venant is the status resolution officer for the applicant.  He deposes as to a written request to be returned to Nauru apparently made by the applicant on 24 December 2020 of which the respondents’ Department have no contemporaneous record.  He deposes that the applicant has expressed no wish to him to be returned to Nauru;

   (f)the affidavit of Alana Sullivan made on 13 April 2021.  Ms Sullivan refers to the applicant’s written request for removal dated 24 December 2020 on which her Department has sought advice.  At the time of making her affidavit, Ms Sullivan was awaiting medical advice concerning the applicant and deposes that on receipt of an IHMS[1] health summary, and provided that the applicant is fit to travel, she would approach the Nauruan government to facilitate his return there;

   (g)an affidavit by the applicant made on 15 April 2021 annexing a court attendance notice for his elder daughter.  He deposes as to tensions within his family and in particular between his elder daughter and her mother (his ex wife) and his personal circumstances in detention;

   (h)an affidavit made by Hervee Dupont Dejean made on 16 April 2021.  Ms Dejean deposes as to the status within the Ministers’ Departments of a possible residence determination decision in respect of the applicant; and

   (i)a screenshot from the Parliamentary docket management system was tendered and became exhibit R1. 

   [1] International Health and Medical Services

9. 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 daughters

   CONSIDERATION

10. 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.

11. 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

12. 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]

13. 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]

14. 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.

15. 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. 

16. During the course of oral argument, I described the applicant’s expressed wish to return to Nauru as “madness”.  I remain of that view.  He was brought to Australia for the purposes of family reunion and it is blindingly obvious from his own evidence, as well as that of his daughters and ex wife that that purpose remains extant.  The applicant has responsibilities as a parent and the respondents should facilitate the performance of those responsibilities.

17. I accept from the applicant’s oral evidence that he was married for 16 years but that the pressures of life on Nauru contributed to his divorce in 2017.[7]  I also accept that the applicant regarded Nauru as “hell for us and equals to death”.[8]  I do not believe that the applicant genuinely wishes to be returned to Nauru.  He gave evidence that Nauru is not a safe place to stay in.  I accept that evidence.  I also accept that in September 2014 the applicant was recognised in Nauru as a refugee from Iran.[9]  It follows that he requires protection and resettlement. 

    [7] Transcript of hearing on 16 April 2021 (Transcript), page 12, lines 31-33

    [8] Transcript, page 4, line 29

    [9] Transcript, page 33, lines 14-19

18. The present circumstances of this family are distressing.  The circumstances of the applicant’s two daughters are particularly disturbing.  Both have self harmed in the past and the elder daughter appears to be particularly troubled.

19. I have no difficulty in finding that the applicant still needs to be in Australia for the temporary purpose for which he was brought here.  More particularly, he needs to be in Australia to support the parenting of his two daughters.

20. I find that the detention of the applicant in Australia has been and remains lawful.  The applicant himself agreed to that detention when he signed the transfer form which appears in the court book.  That said, his continuing detention at the Villawood Immigration Detention Centre is antithetical for the family reunion purpose for which he was brought to Australia and it is highly desirable that an alternative be found. 

    CONCLUSION

21. The applicant has failed to satisfy me that he should receive any of the relief sought in his application as amended.  I will order that the application be dismissed.

22. I will hear the parties as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       5 August 2021

SCHEDULE OF PARTIES

SYG 92 of 2021
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS