AKU21 v Minister for Home Affairs

Case [2022] FCA 1061

FEDERAL COURT OF AUSTRALIA

AKU21 v Minister for Home Affairs [2022] FCA 1061   

File number(s): NSD 117 of 2021
Judgment of: THAWLEY J
Date of judgment: 8 September 2022
Catchwords: MIGRATION – application for order for mandatory injunction directed to first and third respondents to cease breaching a contended duty of care – claim for damages against first and third respondents for alleged breach of duty of case arising out or “regional processing” of “transitory persons” – whether Commonwealth owes duty of care –proceeding heard on 1 July 2022 – judgment reserved – interlocutory application brought after judgment reserved for order for mandatory injunction directed to first and third respondents to offer removal of applicants and second respondent from Papua New Guinea to Australia or safe third country – application and interlocutory application dismissed
Legislation: Migration Act 1958 (Cth) ss 5, 5AA, 189, 198AA, 198AB, 198AD, 198AE, 198AHA, 198B
Cases cited:

Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57

Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649

FRM17 v Minister for Home Affairs (2019) 271 FCR 254

Council of the Shire of Sutherland v Heyman [1985] HCA 41; 157 CLR 424

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1

Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540

Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 119
Date of hearing: 1 July, 6 September and 8 September 2022
Solicitor for the Applicants: Mr D Taylor of Sydney West Legal and Migration
Counsel for the First and Second Respondents: Mr P Knowles
Solicitor for the First and Second Respondents: Australian Government Solicitor

ORDERS

NSD 117 of 2021
BETWEEN:

AKU21

First Applicant

AKV21

Second Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

AKW21

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

ORDER MADE BY:

THAWLEY J

DATE OF ORDER:

8 SEPTEMBER 2022

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the first and third respondents’ costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(Revised from transcript)

THAWLEY J:

INTRODUCTION

  1. The first applicant (AKU21) is a citizen of Bangladesh who arrived in Australia by boat at Christmas Island between August and September 2013. He arrived without a valid visa and falls within the definition of an “unauthorised maritime arrival” in s 5AA of the Migration Act 1958 (Cth).

  2. In either September or October 2013, AKU21 was transferred to Manus Regional Processing Centre in Papua New Guinea under s 198AD(2) of the Migration Act in accordance with Australia’s “regional processing” laws.

  3. At some point between October 2013 and 27 April 2016, AKU21 was assessed by…

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AGLC
AKU21 v Minister for Home Affairs [2022] FCA 1061
Case
[2022] FCA 1061
Decision Date

CaseChat Overview and Summary

In the case of AKU21 v Minister for Home Affairs, the applicants, including AKU21, sought relief against the Commonwealth respondents, specifically the Minister for Home Affairs and the Department of Home Affairs. The applicants claimed damages for an alleged breach of duty of care arising from the "regional processing" of "transitory persons" in Papua New Guinea. Additionally, they sought a mandatory injunction compelling the respondents to remove the applicants and a second respondent from Papua New Guinea to Australia or a safe third country. The matter was heard on 1 July 2022, with judgment reserved, and an interlocutory application was subsequently brought on 7 September 2022. The court dismissed both the original application and the interlocutory application.

The primary legal issues revolved around whether the Commonwealth owed a duty of care to the applicants, and if so, whether there had been any breaches of that duty. The applicants argued that they remained "transitory persons" under the Migration Act, and thus entitled to certain protections. The Commonwealth respondents contended that the applicants were no longer "transitory persons" after Papua New Guinea had decided it did not owe them protection obligations. The court considered these arguments but ultimately found that the applicants had not established the existence of a duty of care, any breach of such a duty, or the need for interlocutory relief.

In reaching its conclusion, the court applied a "salient features" approach to determine whether a novel duty of care existed, as outlined in relevant case law. The court considered factors such as foreseeability of harm, the degree of control the Commonwealth had, and the nature of the relationship between the parties. Despite assuming the applicants' status as "transitory persons," the court was not satisfied that the applicants had demonstrated any breach of duty. Consequently, the application and the interlocutory application were dismissed.

The court ordered that the application be dismissed and that the applicants pay the first and third respondents' costs of the proceeding, including those related to the interlocutory application. This decision underscores the stringent requirements for establishing a novel duty of care in such complex and novel circumstances.

Orders

Orders of the court

1. The application be dismissed.

2. The applicants pay the first and third respondents’ costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicants’ arguments concerning duty were based on their contended status as “transitory persons” within the meaning of s 5 of the Migration Act. The Commonwealth respondents submitted that the applicants were not “transitory persons” after Papua New Guinea had determined that it did not owe AKU21 protection obligations or, if not then, after he had been removed to Bangladesh in 2018. The applicants submitted that both remained “transitory persons” and, in particular, submitted that AKV21 remained and remains and, according to the definition in s 5 of the Migration Act, will always remain a “transitory person” no matter what happens. It is unnecessary to decide these questions. I have approached the matter on the basis most favourable to the applicants, that is, on an assumption that both remain “transitory persons”. Whether or not the applicants are still “transitory persons”, I am not satisfied that the applicants have established:(a)that there was a duty to inform the PNG authorities that AKU21 had a wife and child in circumstances where those authorities were already aware and known to have been considering those matters in the context of having decided that Papua New Guinea did not owe protection obligations and of then deciding to deport AKU21 in 2018; or(b)the existence of the various more broadly defined duties of care pleaded in the statement of claim; or(c)any breach or threatened breach of any duty of care;(d)even at a level sufficient for the purposes of a grant of interlocutory relief, the existence of the duty asserted in the interlocutory application filed on 7 September 2022 as capable of justifying an order for the mandatory injunction sought.CONCLUSION The application must be dismissed as must the interlocutory application filed on 7 September 2022. The applicant should pay the first and third respondents’ costs of the proceeding including of and incidental to the interlocutory application.

Ratio Decidendi

Legal Principle Established

Ms Noormahomed’s affidavit also included evidence to the effect that the Department of Home Affairs held a contract with a company known as “C5” to assist in building the ICA’s capacity to remove persons from Papua New Guinea. Removal operations would generally involve several officers of the ICA and C5 contractors, and did not to her knowledge involve Commonwealth officers or other contractors.CONSIDERATIONGeneral principles as to novel duty of care The authorities concerning novel duties of care were addressed by Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 at [201] – [229]. Bromberg J referred to the decision of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar[2009] NSWCA 258; 75 NSWLR 649 at [102] – [104]. After referring to various authorities, Allsop P articulated a “salient features” approach to determining whether a novel duty of care exists, saying:[102]This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the “salient features” or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury.[103]These salient features include:(a)the foreseeability of harm;(b)the nature of the harm alleged;(c)the degree and nature of control able to be exercised by the defendant to avoid harm;(d)the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself;(e)the degree of reliance by the plaintiff upon the defendant;(f)any assumption of responsibility by the defendant;(g)the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant;(h)the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff;(i)the nature of the activity undertaken by the defendant;(j)the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant;(k)knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff;(l)any potential indeterminacy of liability;(m)the nature and consequences of any action that can be taken to avoid the harm to the plaintiff;(n)the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests;(o)the existence of conflicting duties arising from other principles of law or statute;(p)consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q)the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.[104]There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.