Aor21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

The applicant, a stateless Rohingya man whose country of habitual residence was Myanmar, sought a declaration that his detention was unlawful, an order for his release, and a writ of mandamus requiring his removal to Nauru. He contended that his detention was unlawful because he had not been removed to a regional processing country as soon as reasonably practicable. The applicant had been intercepted on arrival in Australian waters in 2013, recognised as a refugee in Nauru in 2015, and subsequently transferred to Australia in February 2020 for medical assessment and treatment related to a traumatic brain injury sustained in 2017. The Minister argued that the applicant was a "transitory person" brought to Australia for a temporary purpose under s 198B of the *Migration Act 1958* (Cth). The Federal Court was required to determine whether the applicant's detention was unlawful and whether he was entitled to the orders sought.

The court was required to consider the legal framework governing the transfer and detention of transitory persons, particularly in light of the applicant's medical needs and his request to be returned to Nauru. Specifically, the court had to determine whether the applicant had been detained unlawfully by reason of not being removed to a regional processing country as soon as reasonably practicable, and whether there was a public duty to provide medical treatment that could be compelled by the court. The court also considered the provisions of the *Migration Act* relating to the removal of unauthorised maritime arrivals to regional processing countries, including the circumstances under which a transitory person might no longer need to be in Australia for a temporary purpose, thereby triggering an obligation for removal.

The court reasoned that the *Migration Act* confers a power to bring a transitory person to Australia for a temporary purpose, and that the obligation to remove such a person to a regional processing country arises under specific statutory provisions. The court noted that the delay in the applicant's medical treatment in Australia appeared to be due to COVID-19 pandemic restrictions. It found that the court could not compel the Minister to provide medical treatment in the absence of a public duty, and that an agreement for medical transfer did not create such a duty. Furthermore, the court held that it could not order the applicant's release from detention unless the detention was unlawful, referencing High Court authority that provided limited scope for applicants on this question. The court concluded that the applicant had not demonstrated that he should receive the orders sought.

The application was dismissed. The court ordered that the Minister be paid costs fixed in the sum of $5,000, acknowledging the applicant's distressing circumstances and the novel questions raised, but also noting that the applicant brought the proceedings for personal benefit and that costs generally follow the event in migration proceedings.