Aor21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 958
•6 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
AOR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 958
File number(s): SYG 342 of 2021 Judgment of: JUDGE DRIVER Date of judgment: 6 May 2021 Catchwords: MIGRATION – Application for release from detention and for the receipt of medical treatment – applicant brought to Australia from a regional processing centre for the temporary purpose of medical treatment – whether the temporary purpose has been completed considered – status of the applicant in detention considered in the light of the continuing need for the applicant to receive medical attention. Legislation: Migration Act 1958 (Cth) ss 5, 46B, 196, 189, 198, 198AD, 198AH, 198B, 198C, 198E, 198F
Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)
Cases cited: AGH21 v Minister for Home Affairs [2021] FCA 452
AJL20v Commonwealth of Australia [2020] FCA 1305
Al-Kateb v Godwin(2004) 219 CLR 562
AOU21 v Minister for Home Affairs [2021] FCAFC 60
ASP15 v Commonwealth (2016) 248 FCR 372
CZCV v Commonwealth of Australia [2020] FCA 1864
Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52
Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391
NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2
NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 224
Plaintiff M96A/2016 v Commonwealth of Australia (2017) 261 CLR 582
SHFB v Goodwin [2003] FCA 294
SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29
WAD230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351
WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625
Number of paragraphs: 47 Date of hearing: 6 May 2021 Place: Sydney Solicitors for the Applicant: Mr D Taylor, with Ms N Harandaran of Sydney West Legal and Migration Counsel for the Respondents: Mr B D Kaplan Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 342 of 2021 BETWEEN: AOR21
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:
6 MAY 2021
THE COURT ORDERS THAT:
1.The Commonwealth of Australia is added as the third respondent to the proceeding.
2.The Secretary, Department of Home Affairs is added as the fourth respondent to the proceeding.
3.Leave is refused for the applicant to rely upon the proposed amended application annexed to the affidavit of Daniel Robert Taylor filed on 6 May 2021.
4.The applicant has leave and liberty to apply for an injunction in the event that the applicant is notified that some proposal exists to remove him from Australia to Nauru.
5.The name of the applicant is not to appear on the transcript of proceedings.
6.The application is dismissed.
7.The applicant is to pay the respondents’ costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
REASONS FOR JUDGMENT
(revised from transcript)JUDGE DRIVER:
INTRODUCTION
This case is one of approximately 100 that I am managing in my docket. The cases all concern persons who were removed from Australia to a regional processing country, namely Papua New Guinea or Nauru, and have been more recently brought to Australia for medical treatment. Having considered a reasonable number of these cases at both the interlocutory and final stages, it is apparent that the litigation has several purposes.
The first purpose is to attract visibility to the applicants’ plight. They see themselves as victims of a flawed policy effected under now repealed legislation. Secondly, the applicants seek release from detention. In a number of cases, they have been successful because of the intervention of the Minister. The applicants have been in Australia for, in some cases, more than two years and, in many cases, they have been recognised as refugees and suffer from various ailments. They consider that their continuing detention in these circumstances is unjustified and unjustifiable. They also consider that the detention is antithetical to various medical, including mental, conditions that they suffer.
Thirdly, the applicants seek the medical treatment for which they were brought to Australia, and which, in many cases, has been delayed for an unknown reason. Those are the reasons why the proceedings have been brought. The proceedings, in some cases, raise difficult and subtle legal propositions. That is the domain of the Court. The proceedings, more generally, raise issues of policy. The Court in its adversarial jurisdiction is not the proper place for those issues of policy to be debated. However, it would be desirable if there were a place for such a debate.[1]
[1] In AOU21 v Minister for Home Affairs [2021] FCAFC 60 the Full Federal Court ordered mediation
The Court must be cautious in dealing with cases of this nature because a natural desire to do something helpful for a distressed applicant may lead the Court into error in a highly technical jurisdiction. With those opening remarks I will deal with the substance of this case.
BACKGROUND
The applicant is a Rohingya man who is stateless and whose country of habitual residence, prior to coming to Australia, was Myanmar, or Burma. He was intercepted on arrival in Australian waters and taken to a regional processing centre in Nauru. There he was recognised as a refugee in 2015. He suffered traumatic injuries in 2017 which were detailed in documents before the Court and detailed further in compelling oral evidence given by the applicant.
There was an incident in 2017 in Nauru which the applicant dealt with in his oral evidence and to which I will return. Suffice to say that the applicant suffered a traumatic brain injury as a result of that incident. He was, perhaps somewhat surprisingly, taken to Taiwan for medical attention in 2018. He received treatment for an injured arm, but treatment was not provided, at that stage, for his brain injury. It was in relation to his brain injury that the applicant suffered symptoms which, ultimately, were seen to necessitate him being brought to Australia.
The starting position, as far as the Minister has put it, is that the applicant is a transitory person who was brought to Australia for a temporary purpose under s 198B of the Migration Act 1958 (Cth) (Migration Act). That occurred in February 2020. Earlier this year the applicant asked to be returned to Nauru but has since withdrawn that request.
The Minister’s submissions further detail this background.
By his application, the applicant seeks a declaration that his detention is unlawful, an order for his release from detention and a writ of mandamus requiring that he be removed to Nauru. He contends that his detention is unlawful on the ground that he has not been removed to a regional processing country as soon as reasonably practicable.
The applicant arrived at Christmas Island by boat as an unauthorised maritime arrival on 19 December 2013. Shortly thereafter, on 24 December 2013, he was taken to Nauru pursuant to s 198AD of the Migration Act.[2]
[2] Affidavit of Kate Carroll made on 3 May 2021 at [6]
On 25 February 2020, the applicant was transferred from Nauru to Australia pursuant to s 198B of the Migration Act for the purposes of magnetic resonance imaging (MRI) of his brain and neurological assessment of chronic post-traumatic headaches and dizziness.[3] An MRI was conducted on 6 March 2020 which demonstrated “traumatic pathology in the temporal lobe”.[4] However, as at 4 April 2021, the applicant was “awaiting his outpatient neurologist appointment”.[5]
[3] Court Book (CB) 51-52
[4] CB 52
[5] CB 52; see also at CB 51
On 10 February 2021, the applicant made a request, in writing, to be removed from Australia to Nauru.[6]
[6] CB 49; see also at CB 41
On 21 March 2021, the applicant withdrew his request in writing to be removed from Australia to Nauru.[7]
[7] CB 50; see also at CB 41
THE CURRENT PROCEEDINGS
The proceedings began with a judicial review application filed on 5 March 2021. In that application, the applicant sought both interlocutory and final relief. The matter was heard today on a final basis and I adopted the position that the interlocutory orders sought were subsumed into the final orders sought. Those final orders included an order for removal of the applicant to Nauru forthwith, which, in my view, fell away following the applicant’s retraction of his request to be returned to Nauru. I take the same view in relation to the second relief sought.
The application also seeks mandamus requiring the respondents to provide the applicant with necessary medical treatment forthwith, declarations that he has been unlawfully detained, orders of habeas corpus requiring the respondents to release the applicant from detention forthwith and that he not be re-detained, as well as costs. The grounds in the application are:
1.S.198AD(2) of the Migration Act 1958 was engaged as the applicant no longer needed to be in Australia for medical treatment, however the Respondent has not taken any steps towards removal to the regional processing country.
Particulars
a. The applicant suffered mental health injury and physical injury whilst in unlawful detention in NAURU.
b. The applicant signed an agreement for medical transfer with the ABF, that he would be brought to Australia, kept in detention, receive medical treatment, and then would return to NAURU when his medical treatment was finished.
c. The Respondent’s provision of access to medical treatment has been unreasonably delayed.
d. The Respondent has extended the duration of detention such that it has become unsafe to the applicant’s mental and physical health.
e. As a consequence the applicant no longer needed to be in Australia and the obligation to remove him under s.198AD(2) was engaged.
2.The detention is unlawful because the Defendant 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 unlawfully imprisoned in Nauru and subject to significant harm as a consequence of which the applicant suffered injury to his physical and mental health
iii. The applicant signed an agreement with the ABF, that he would be brought to Australia, kept in detention, receive medical treatment, and then would return to NAURU when his medical treatment was finished.
iv. The applicant was transferred to Australia for urgent medical treatment.
v. The applicant was denied adequate medical treatment or treatment within a reasonable time in Australia.
vi. The applicant made written requests to the Respondents for removal to Nauru on 10th February 2021 as the relevant regional processing country.
vii. 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.
viii. The Minister is in breach of his duty under s.198(1) and s.198AD(2) of the Migration Act 1958.
ix. The detention of the applicant is not supported by any lawful purpose as required by the Migration Act 1958.
x. The release of the applicant is essential to terminate the breaches of s.198(1), s.198(1A), and s.198AD(2) the Migration Act 1958.
xi. The Respondents have not and are unable to fulfill their duty of care to provide a safe duration of detention for the applicant.
xii. The Respondents have not and are unwilling or unable to provide the medical treatment for which the applicant was brought to Australia.
The applicant sought leave to amend the application at trial today. The proposed amended application was an annexure to an affidavit by the applicant’s solicitor. Having considered brief argument on the issues relating to the proposed amended application, I refused the leave sought. Critical to that decision were the propositions in the proposed amended application concerning the legality of any return of the applicant to Nauru. Counsel for the Minister obtained instructions that no return to Nauru, or indeed, removal to anywhere outside Australia, was in prospect. On that basis, while refusing leave for the amended application, I granted leave for the applicant to seek future relief in the nature of an injunction should removal become a proximate issue.
In terms of evidence, I have before me a court book filed on 15 April 2021, an affidavit by the applicant made on 6 May 2021, an affidavit by a departmental officer Kate Carroll made on 3 May 2021 and an affidavit by Melinda Anne Jackson made on 5 May 2021. Ms Jackson’s affidavit introduces information concerning some recent decisions in the Federal Court.
Ms Carroll was cross-examined on her affidavit. Ms Carroll gave limited evidence concerning the status of the applicant for the Minister’s purposes. She deposes that the applicant arrived at Christmas Island by boat as an unauthorised maritime arrival on 19 December 2013 and on 24 December 2013 he was taken to the Nauru Island Regional Processing Centre pursuant to s 198AD of the Migration Act. She also deposes that on 20 March 2021 the applicant withdrew his earlier request to be sent back to the Republic of Nauru. Ms Carroll deposes that she is satisfied that the applicant is not an Australian citizen or an Aboriginal Australian and he does not hold a valid visa, that he is therefore an unlawful non-citizen and that as a result she must detain or cause the applicant to be detained by reason of s 189 of the Migration Act.
Ms Carroll further deposes that she remains satisfied of these matters based on her review of the information contained in departmental systems. Ms Carroll was cross-examined on documents annexed to her affidavit. In particular, she was cross-examined on statements in a case review that the applicant’s case is not affected by case law, by which she means decisions of courts, nor that he has particular vulnerabilities. There is a reference also to an absence of potential media attention. Those are matters, in my view, extraneous to the issues required to be resolved by the Court.
The applicant’s evidence given orally, as I have noted earlier, was compelling. He has been in detention for approximately eight years, six of those years being on Nauru. He considers, with some justification, that he was treated badly by local people in Nauru. On 19 November 2017, the applicant was riding his motorcycle for the purpose of undertaking cleaning duties at a detention centre on the island. He states that he was assaulted from behind by a local person who the applicant believes was a security guard not wearing a uniform.
The applicant understands the motive for the attack to be robbery. He was struck from behind and fell from his motorcycle, sustaining severe injuries. These included injuries to his hand or arm, to his eye and to his skull. He developed blood clots and was unconscious for three to four days. He says that when he regained consciousness he was asked to sign, and did sign with his broken hand, a document to the effect that he did not want to go to Australia for medical treatment. That may explain why he was taken to Taiwan for hand surgery in 2018.
I accept the applicant’s evidence concerning the attack upon him and the injuries he sustained. It is plain from that evidence and the additional material in the court book that, in addition to the physical injuries sustained to the applicant’s hand, he suffered a skull injury and a traumatic brain injury requiring medical attention. His symptoms as a result of that injury were a significant factor in the decision that the applicant should be brought to Australia for medical treatment. On arrival, the applicant underwent an MRI scan.
It does not appear that any significant additional treatment has taken place since that time. The court book records that the applicant is awaiting an appointment with a neurologist. It appears that the delay has come about because of restrictions consequential to the COVID-19 pandemic. The Court cannot compel the respondents to provide medical treatment to the applicant in the absence of some public duty. There is very recent authority in AGH21 v Minister for Home Affairs[8] that the agreement between the Australian authorities and an applicant for medical transfer is not a source of such a duty. Further, the Court cannot order the applicant’s release from detention unless that detention is unlawful. The High Court decision in Plaintiff M96A/2016 v Commonwealth of Australia,[9] in particular at [20], gives little room for an applicant to manoeuvre on that question.
[8] [2021] FCA 452
[9] (2017) 261 CLR 582
CONSIDERATION
I agree with and adopt the Minister’s submissions in relation to the relevant legislative provisions.
Section 198B of the Migration Act confers on an officer (within the meaning of s 5(1)) a power to, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. A transitory person relevantly includes a person who was taken to a regional processing country under s 198AD.[10] Section 198AD provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom s 198AD applies to a regional processing country.
[10]Migration Act, s 5(1)
Until their repeal on 5 December 2019,[11] ss 198C and 198E of the Migration Act provided for the transfer to Australia of transitory persons who, in the opinion of two or more treating doctors, needed to be in Australia for appropriate medical or psychiatric treatment or assessment (ss 198E(1)-(2)) and whose transfer to Australia was approved by the Minister under ss 198E(3) or 198F(4). If the Minister approved the transfer of a relevant transitory person to Australia under ss 198E or 198F, an officer was required, as soon as practicable, to bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.[12]
[11] by the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)
[12] section 198C(2)
Where there are two or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, to the regional processing country specified in the direction.[13] There is presently a direction in force.
[13] section 198AD(5)
Depending on the circumstances, an obligation to remove a transitory person who has asked in writing to be removed to a regional processing country would be sourced in one of two statutory provisions:
(a)if the person no longer needs to be in Australia for the temporary purpose – s 198AD(2) (which applies when a transitory person no longer needs to be in Australia for a temporary purpose, irrespective of whether the person has requested removal: see s 198AH(1A));
(b)if the person still needs to be in Australia for the temporary purpose – s 198(1) (which applies only where s 198AD does not: s 198(11)).
If a transitory person still needs to be in Australia for the temporary purpose, and has not requested removal in writing (or has made a request which is subsequently withdrawn), the obligation to remove the person is not enlivened. The general removal obligation under s 198(2) must be read as implicitly qualified by s 198(1A), which confirms that the removal obligation does not arise until (relevantly) a person no longer needs to be in Australia for the temporary purpose. That is the case here as is explored further below.
I also agree with and adopt in part the Minister’s submissions concerning release on an interim basis.
In so far as the applicant seeks release from detention on an interim basis, such relief is, in my view, not available. Sections 196(1), (3) and (4) of the Migration Act stand against the release of a person on an interlocutory basis (whatever power the Court might have had but for those sections: s 196(6)). Section 196(1) and (3) express the legislative intent that an unlawful non-citizen is to remain in immigration detention until the happening of one of the events in s 196(1). While it may be accepted that the provisions do not preclude an order for the release of a person where the Court has reached a final conclusion that their detention is unlawful, they do preclude an interlocutory order for the release of a person who has only established a prima facie case to that effect. This has been consistently confirmed by authority.[14]
[14] see, for example, Durani v Minister for Immigration and Border Protection (2013) 223 FCR 391 at [23], [38]-[41]; WAD230/2014 v Minister for Immigration and Border Protection [2014] FCA 1351 at [12]; CZCV v Commonwealth of Australia [2020] FCA 1864 at [18]
It is not necessary to resolve that issue given that today’s hearing was addressing the orders sought on a final basis. The Minister’s submissions on that issue go further than is necessary for the purposes of the present case. The Minister’s submissions on the duration of detention are more to the point.
If the temporary purpose for which the applicant was brought to Australia remains extant, then, in my view, consistent with available authority, the applicant’s detention for that purpose is lawful. The question of whether the temporary purpose remains extant or not has been found to be an objective one in AOU21. In the present case, having regard to the material in the court book and the applicant’s evidence, both oral and in writing, I am left in no doubt that the applicant suffers from severe and ongoing consequences of the attack upon him in 2017 that requires ongoing medical treatment. In particular, the neurological appointment, which the applicant is still awaiting, is a continuation of the temporary purpose for which he was brought to Australia. In that regard, I agree with the clinical summary dated 4 April 2021 reproduced at CB 52:
[The applicant] was transferred to Australia on 25FEB2020 for MR imaging of his brain and a neurologist assessment of chronic post-traumatic headaches & dizziness.
Following transfer, MR imagine on 06MAR2020 demonstrated some traumatic pathology in the temporal lobe. However he is still awaiting his outpatient neurologist appointment.
This opinion does not comment on medical matters which fall outside the scope of the specific temporary (medical) purpose for which the transferee was brought to Australia.
The temporary purpose for which the applicant was brought to Australia being as yet incomplete, there is, in my view, no conclusion available to the Court other than that the applicant’s detention remains valid. One may debate whether that position can continue indefinitely. One may also debate whether a sound case exists for the intervention of the Minister at some point. I agree, however, with the Minister’s submissions relating to the authorisation of detention.
Further, in light of the reasoning in Plaintiff M96A/2106, even if an applicant has not been removed as soon as reasonably practicable, their detention is authorised until they are in fact removed. The reasons of the High Court stand against any conclusion that a transitory person’s detention becomes unlawful simply because their removal is not effected as soon as reasonably practicable after the temporary purpose for which they were brought here no longer requires them to be in Australia. In so far as the applicant relies on such a contention as a basis to render his present detention unlawful, it is precluded by the reasoning in Plaintiff M96A/2016.
Put simply, until an applicant is in fact removed, the Migration Act requires that he or she be kept in detention. So much is clear from the following extract of the High Court’s reasons in Plaintiff M96A/2016 at 593 [20], which pertained specifically to transitory persons:
In the case of a transitory person, therefore, the detention must continue until: (i) removal under s 198 (the first event); (ii) the beginning of the process of removal to a regional processing country under s 198AD (the second event); or (iii) the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted. In the case of each of the first or second event, under ss 198 and 198AD, it is a condition that removal must occur as soon as reasonably practicable after the person no longer needs to be in Australia for the temporary purpose.
In the case of a transitory person, therefore, the detention must continue until:
(a)removal under s 198 (the first event);
(b)the beginning of the process of removal to a regional processing country under s 198AD (the second event); or
(c)the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted.
While it may be accepted that Bromberg J concluded differently in AJL20v Commonwealth of Australia,[15] that decision needs to be reconciled with the reasoning of the High Court in Plaintiff M96A/2016. The Commonwealth’s appeal in AJL20 has was heard by the High Court on 13 April 2021 and judgment is currently reserved. In any event, AJL20 may be regarded as confined to that narrow set of circumstances where, right up until the date of judgment, there is no evidence of the Commonwealth having taken any steps to attempt to remove a person.[16]
[15] [2020] FCA 1305
[16]AJL20 at [157]-[158], [169]‑[171]
Other decisions of the Federal Court and the Full Federal Court are also relevant. Those include the judgment of French J (as his Honour then was) in WAIS v Minister for Immigration and Multicultural and Indigenous Affairs.[17] In that case, his Honour explained at [47] that “[t]he obligation which it [s 196(1)] creates is unqualified and in terms unlimited in time except by reference to the [then] three terminating events. That is emphasised by subs 196(3)”. While removal under s 198 “necessarily terminates the continuing detention under s 196”, the obligation to remove as soon as reasonably practicable “does not, on the face of it, import any express or implied limitation upon the obligation to detain the unlawful non-citizen under s 196. That obligation or liability is terminated by the event of removal”.[18] His Honour concluded at [56]:
The language of s 196 … seems to me intractable. The detention there prescribed is ended only by one of the terminating events. The removal obligation for which s 198 provides does not seem to have been enacted for any purpose protective of the rights of detainees. Rather it facilitates the expeditious removal from Australia of unlawful non-citizens. The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister. … The Parliament has specified precise criteria by reference to particular events, upon which detention under s 196 will terminate. It is difficult to see how the Court can in effect legislate another limiting condition.
[17] [2002] FCA 1625
[18] at [49]
That analysis has been followed by single judges of the Federal Court on numerous occasions.[19]
[19] NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [6]-[7] (Beaumont J); SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 at [10], [12]-[13] (Selway J); SHFB v Goodwin [2003] FCA 294 at [8]-[12], [23]-[25], [30] (von Doussa J); NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 224 at [10]-[11], [64] (Emmett J); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52 at [15], [36] (Whitlam J)
There are Full Federal Court authorities to the same effect. For example, in ASP15 v Commonwealth,[20] the Full Federal Court (Robertson, Griffiths and Bromwich JJ) stated at [40]:
It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). … Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.
[20] (2016) 248 FCR 372
Removal to another country is, necessarily, something which cannot be achieved by Australia acting unilaterally. The particular circumstances of the applicant, as well as willingness and ability of a regional processing country to receive the person, is a matter that will inform whether or not removal is reasonably practicable.[21]
[21]Al-Kateb v Godwin(2004) 219 CLR 562 at [226]-[228]
CONCLUSION
The conclusion I reach is that the applicant is unable to demonstrate that he should receive orders in the nature of mandamus in relation to his medical treatment or orders in the nature of a writ of habeas corpus or otherwise, in relation to his release from detention.
I will order that the application be dismissed.
The application having been dismissed, the Minister seeks an order for costs on the “usual basis” which, in this Court, would be an order in accordance with the Court scale and Rules. The applicant opposes any costs order. There are viable arguments both for and against an order for costs. The applicant’s circumstances are distressing, and novel questions have been raised. It may fairly be argued that the proceedings have within them a public interest element. However, it must also be acknowledged that the applicant brought the proceedings in order to obtain a personal benefit.
It also needs to be borne in mind that there are a substantial number of similar proceedings before the Court and some indication should be given as to whether there will be a departure from the general principle which applies in migration proceedings challenging an administrative decision, or the lack of one, namely that costs follow the event. Having considered the arguments I have come to the conclusion that the Court should make a costs order, but that it should be in a fixed sum.
The matter came before the Court for final hearing relatively promptly. The Minister was required to prepare a court book of modest demensions and to prepare written submissions which have been of assistance to the Court. Several affidavits have also been prepared. Having regard to the degree of preparation required for the hearing and the fact that the Minister was properly represented by counsel and an instructing solicitor, I have concluded that costs should be fixed in the sum of $5,000. I will so order.
I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 13 May 2021
SCHEDULE OF PARTIES
SYG 342 of 2021 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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