Agh21 v Minister for Home Affairs
[2021] FCA 452
•5 May 2021
FEDERAL COURT OF AUSTRALIA
AGH21 v Minister for Home Affairs [2021] FCA 452
File number: NSD 57 of 2021 Judgment of: FLICK J Date of judgment: 5 May 2021 Catchwords: ADMINISTRATIVE LAW – application for mandamus – failure to identify any public duty
MIGRATION – application to be returned to Papua New Guinea – applicant granted bridging visa
PRACTICE AND PROCEDURE – query as to power to grant mandamus on an interlocutory application
Legislation: Migration Act 1958 (Cth) ss 198, 198AD Cases cited: Plaintiff M61/ 2010E v The Commonwealth [2010] HCA 41, (2010) 243 CLR 319
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (1949) 78 CLR 389
R v Victorian Licensing Court; Ex parte Beggs [1964] VR 48
Re Australian Bank Employees’ Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513
Re Reith; Ex parte Hollier (1998) 72 ALJR 1412
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 22 Date of hearing: 16 March 2021 Counsel for the Applicant: Mr J F Gormly Solicitor for the Applicant: Sydney West Legal and Migration Counsel for the Respondents: Mr P Herzfeld SC with Mr C Tran and Ms N Wootton Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 57 of 2021 BETWEEN: AGH21
Applicant
AND: MINISTER FOR HOME AFFAIRS
First Respondent
MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
Second Respondent
ORDER MADE BY:
FLICK J
DATE OF ORDER:
5 MAY 2021
THE COURT ORDERS THAT:
1.The application for interlocutory relief as claimed in the Amended Application for Interlocutory Relief dated 23 February 2021 is refused.
2.The question of costs is reserved.
3.The matter is listed for case management hearing on 12 May 2021 at 9:00am.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
The Applicant in the present proceeding, identified by the pseudonym AGH21, is a citizen of Iran. He arrived in Australia in 2013 as an unauthorised maritime arrival and was transferred to Papua New Guinea for the regional processing of his claims for protection.
In July 2019 he was transferred to Australia for the purpose of receiving specialist medical treatment. In September 2020 he made a request for his removal from Australia.
In January 2021, he filed in this Court an Originating application for relief under section 39B of the Judiciary Act 1903. That Application sought (inter alia) a declaration that his continued detention was “not authorized by the Migration Act 1958 or any other power”. A “writ in the nature of habeas corpus” was also sought. The interlocutory relief which was there sought was an order that “the applicant be released from detention forthwith pending final determination of this matter”. On 23 February 2021, an Amended Application for Interlocutory Relief was filed. The interlocutory relief then sought was expressed as follows:
1.A Writ of Habeas Corpus issue requiring the immediate release of the applicant from immigration detention.
2.A Writ of Mandamus issue compelling the respondents to remove the applicant to Papua New Guinea.
3.Such further orders as the Court thinks fit.
It is that amended claim for interlocutory relief which is now before the Court.
Interlocutory relief is refused. The question of costs is reserved and will be resolved at any final hearing.
Immediate release
In January 2021, as at the time of the filing of the Originating Application there may well have been a basis for granting interlocutory relief, albeit perhaps not an order that he “be released from detention forthwith”. The basis upon which some form of interlocutory relief may have been granted would have followed from the terms of s 198(1) of the Migration Act 1958 (Cth) (the “Migration Act”), which provides as follows:
An officer must remove as soon as reasonably practicable an unlawful non‑citizen who asks the Minister, in writing, to be so removed.
As the facts then stood, the Applicant had made the request for his removal from Australia and his return to Papua New Guinea pursuant to s 198(1) in September 2020 and that request had not been fulfilled some four months later. The argument, which would have had some force, was that the Minister had failed to give effect to the September 2020 request “as soon as reasonably practicable”.
But any question as to whether an order can or should be granted that the Applicant “be released from detention forthwith” need not be resolved. The Applicant was granted a bridging visa on 2 March 2021. He is, accordingly, no longer in detention. Nor need any question be resolved as to whether this Court has any power to grant a “writ of habeas corpus” or – more correctly – an order in the nature of habeas corpus.
The claim to any such relief was abandoned.
An order in the nature of mandamus?
The second of the two claims for relief in the Amended Interlocutory Application, namely a claim for an order in the nature of mandamus, was pressed.
There are many decisions which canvas the circumstances in which an order in the nature of mandamus may be made. The authorities repeatedly refer to the remedy being granted to enforce the performance of an unfilled public duty.
Thus, for example, in Re Australian Bank Employees’ Union; Ex parte Citicorp Australia Ltd (1989) 167 CLR 513 at 515 Mason CJ, Deane, Dawson, Gaudron and McHugh JJ observed that “[m]andamus will issue to compel the performance of a public duty when there has been a refusal or failure to perform that duty”. Similarly, in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (1949) 78 CLR 389 at 398 to 399 Latham CJ, Rich, Dixon, McTiernan and Webb JJ observed:
… Where a court or a public officer wrongly refuses jurisdiction the exercise of the jurisdiction can be commanded by a writ of mandamus. The writ may issue whenever there is a specific legal right to require the performance of a statutory duty, and no specific legal remedy is provided for enforcing that right: R v The Commissioners of Inland Revenue; Re Nathan [(1884) 12 QBD 461]. The writ goes only in order to compel the performance of a public duty and, in the case of a court or other body which is under a duty to hear and determine a matter, the tenor of the writ will require the hearing and determination of the matter, and not the decision of the matter in any particular manner. …
Both cases refer, as do many others, to an order being made to compel the performance of a “public duty”. See also: The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 per Rich, Dixon and McTiernan JJ. It follows that where there is no duty – let alone a “public” duty – to exercise a power, mandamus will not go to compel its exercise: Plaintiff M61/ 2010E v The Commonwealth [2010] HCA 41 at [59], (2010) 243 CLR 319 at 347 per French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. “[C]ritical to the assessment of whether an arguable case sufficient to warrant grant of an order nisi is made out in this matter is the identification of some duty of a public nature which remains unperformed”: Re Reith; Ex parte Hollier (1998) 72 ALJR 1412 at 1414 per Hayne J.
The claim in the present proceeding for an interlocutory order in the nature of mandamus compelling the return of the Applicant to Papua New Guinea is refused. It has been respectfully concluded that there is no serious question to be tried. This conclusion has been reached for any one of a number of reasons.
First, the Applicant was unable to identify the source of any “public duty”. It was expressly conceded, and quite properly conceded, that neither s 198(1) nor s 198AD(2) of the Migration Act could be relied upon for the simple reason that both sections only applied to persons who remained in detention. On the facts, the Applicant was no longer in detention.
The source of the “public duty” relied upon by the Applicant was, so it was submitted, to be found in the Agreement of Medical Transfer which was signed by the Applicant in July 2019. Omitting those parts of that Agreement which identified the Applicant by name, the Agreement provided in relevant part as follows:
… I understand that:
1.The Australian Government has approved my temporary transfer to Australia for the purpose of medical treatment. This transfer may rely on further approvals by the Government of Papua New Guinea prior to the transfer being effected. I will be advised as to the outcome in due course. In the meantime, I will continue to use the health and welfare services available to me.
2.I am being temporarily transferred to Australia for the purpose of receiving specialist treatment which is not available in Papua New Guinea.
3.While in Australia for this temporary purpose, I will be detained in an immigration detention facility on the basis that I am an unlawful non-citizen in Australia.
4.I will be escorted to and from the immigration detention facility and the clinic or hospital for the purpose of receiving the medical treatment/services mentioned above.
5.Once I no longer need to be in Australia for medical treatment and I am assessed as fit to travel; I will be transferred back to Papua New Guinea in accordance with Australian law.
Of particular relevance, so the submission runs, is cl 5.
Neither the Agreement on its terms nor cl 5 in particular is the source of any “promise” – that being the characterisation given to it by Counsel for the Applicant – to return the Applicant to Papua New Guinea upon the completion of his medical treatment. It is, at best, the expression of an “understanding” on the part of the Applicant. More fundamentally, however, is the difficulty in characterising a mere agreement between persons (including the Commonwealth or its officers) as creating a “public duty” enforceable by mandamus: cf. R v Victorian Licensing Court; Ex parte Beggs [1964] VR 48 at 55. In refusing to grant mandamus against the Licensing Court compelling it to hear a lessee who had consented to the application being made, Gowans J there concluded:
… Moreover, to grant mandamus to require the Court to do so, would be to call that remedy in aid of a breach of contract and mandamus should not go for such a purpose: cf. R v Church Wardens of St Saviour's, Southwark (1934) Ad & E 380; 110 ER 1252.
Second, even if the Agreement could be the source of a public duty to enforce an agreement to return the Applicant to Papua New Guinea once he “no longer need[ed] to be in Australia for medical treatment”, there was no evidence that any such duty was not being performed. In opposing the grant of interlocutory relief, there had been filed on behalf of the Respondents an affidavit of Ms Sullivan, a First Assistant Secretary within the Department of Home Affairs. Ms Sullivan details the steps taken after September 2020 to give effect to the Applicant’s request for removal. Although in different circumstances the adequacy of those steps may well have been exposed to scrutiny on the basis of inexplicable delays for some particular periods of time, of present concern are the more recent steps being taken to give effect to the Applicant’s wish to be returned to Papua New Guinea. On the basis of those steps being taken, no conclusion could be reached that steps are not being taken to “perform” any “duty” that may exist or give effect to the Applicant’s wish to be returned.
Third, and again as submitted by Counsel on behalf of the Respondents, the onus was upon the Applicant to establish that he “no longer need[ed] … medical treatment”. But, irrespective of where the onus lay, there was an uncertain factual basis upon which any finding could be made that the Applicant was not continuing to undergo medical treatment or that such treatment was no longer necessary. The evidential support for the finding sought by the Applicant was, so his Counsel submitted, to be an inference to be drawn from:
·an International Health and Medical Services Health Summary; and
·the request of the Applicant to be returned to Papua New Guinea.
Rather than the Health Summary supporting the finding sought by the Applicants, it only supports a contrary finding.
If reference is made to that Health Summary, it canvasses further medical treatment of the Applicant which is either comparatively recent or which is contemplated and includes:
·the Applicant’s attendance on 15 January 2021 at an “IHMS GP consultation” in respect to a liver cyst;
·a scheduled “mental health consultation on 15 January 2021”, which the Applicant “declined to attend”; and
·an updated urology referral on 25 January 2021 “currently awaiting confirmation”.
No inference is necessarily to be drawn from that Health Summary, contrary to the submission by Counsel on behalf of the Applicant, that medical treatment is not ongoing. Some support for a finding that the Applicant no longer wished to receive treatment may perhaps be found in the failure of the Applicant to attend the consultation on 15 January 2021. In addition to this material, there was also:
·an affidavit affirmed by the Applicant in January 2021 stating in respect to medical treatment that “the major treatment has still not been provided”; and
·an internal email within the Department on 5 March 2021 stating that “the temporary purpose for which [the Applicant] was transferred to Australia was ongoing…”, a statement repeated in a Client Brief apparently attached to that email.
Nowhere is there an express statement from the Applicant that he no longer wants to receive the medical treatment referred to. The request to be returned, obviously enough, does not sit comfortably with a desire on his part to continue to receive medical treatment. But his January 2021 affidavit does not sit comfortably with a desire on the part of the Applicant to forgo future medical treatment in Australia. In the absence of any evidence as to the availability of medical treatment in Papua New Guinea, no finding can be made that the proposed medical treatment would be readily available to the Applicant if he were to be returned.
In addition to these three reasons for refusing interlocutory relief, it is sufficient for present purposes to merely note two further concerns, namely a concern as to whether:
·a Court can grant mandamus by way of interlocutory relief. The Applicant was unable to cite any authority which supported the grant of that remedy on an interlocutory basis; and
·this Court has jurisdiction or power to grant mandamus or whether any such application must be made to either the Federal Circuit Court or the High Court. Left unresolved is whether this Court, even if it lacked jurisdiction or power to grant mandamus, lacked jurisdiction or power to grant some other form of relief to secure the return of the Applicant to Papua New Guinea.
CONCLUSIONS
The application for interlocutory relief as sought in the Amended Interlocutory Application dated 23 February 2021 is refused. There is no serious question as to the grant of mandamus ordering the Respondents to return the Applicant to Papua New Guinea.
Left to be resolved at a final hearing are (for example) questions going to:
·whether the detention of the Applicant was “not authorized” for any period of time and, if so, what period;
·whether the Minister failed to comply with the duty imposed on him pursuant to s 198(1) of the Migration Act (or some other like provision) and, if so, during what period of time; and
·what remedies, if any, should be granted and against which Respondent.
The question of costs in respect to the present interlocutory application is reserved until the final hearing.
THE ORDERS OF THE COURT ARE:
1.The application for interlocutory relief as claimed in the Amended Application for Interlocutory Relief dated 23 February 2021 is refused.
2.The question of costs is reserved.
3.The matter is listed for case management hearing on 12 May 2021 at 9:00am.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Flick. Associate:
Dated: 5 May 2021
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