DXT20 v Minister for Home Affairs

[2020] FCCA 3437

FEDERAL CIRCUIT COURT OF AUSTRALIA

DXT20 v MINISTER FOR HOME AFFAIRS & ANOR [2020] FCCA 3437

Catchwords:
MIGRATION – Remittal from High Court of Australia – application for writ of habeas corpus in respect of alleged unlawful detention of the applicant – where the applicant had been brought to Australia for medical treatment – no proper basis for the issuing of a writ of habeas corpus, an injunction or any other relief in respect of the amended application – amended application dismissed.

Legislation:

Judiciary Act 1903 (Cth), s.44

Migration Act 1958 (Cth), ss.14, 189, 195A, 196, 197AB, 197AE, 198AD, 198C, 198E

Federal Circuit Court of Australia Act 1999 (Cth) s.18

Applicant: DXT20

First Respondent: MINISTER FOR HOME AFFAIRS

Second Respondent: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

File Number: SYG 2029 of 2020

Judgment of: Judge Street

Hearing date: 16 December 2020

Date of Last Submission: 16 December 2020

Delivered at: Sydney

Delivered on: 16 December 2020

REPRESENTATION

Solicitors for the Applicant: Mr D Taylor via Microsoft Teams
Sydney West Legal and Migration

Solicitors for the Respondents: Mr P Macliver via Microsoft Teams
Australian Government Solicitor

ORDERS

1. The request for leave to issue a subpoena is refused.

2. The application for leave to file and rely upon the second further amended application for a constitutional writ is refused.

3. The amended application for a constitutional writ is dismissed.

4. The applicant pay the respondents’ costs, including the costs of the proceeding the subject of the remittal, in an amount to be agreed or as assessed.

DATE OF ORDER: 16 December 2020

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2029 of 2020

DXT20

Applicant

And

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

REASONS FOR JUDGMENT

1. These proceedings were commenced in the High Court of Australia on 29 April 2020, seeking a writ of habeas corpus in respect of the alleged unlawful detention of the applicant in circumstances where the applicant had been brought to Australia for medical treatment. 

2. The proceedings in the High Court of Australia were the subject of the filing of an amended application on 25 June 2020 identifying the seeking of injunctive relief and declaratory orders and effectively orders in the nature of habeas corpus for the purpose of immediate release of the applicant into the community. 

3. The first ground of the amended application dated 25 June 2020 refers to s 198AD of the Migration Act 1958 (Cth) (“the Act”) which refers to taking unauthorised maritime arrivals to a regional processing country.     

4. The evidence in the present case is that there are two regional processing centres Nauru and Papua New Guinea (Manus Island). 

5. The applicant alleges that he had suffered significant harm as a result of being in detention and medical evidence has been adduced in relation to the applicant having detention fatigue and suffering from psychological impacts from the detention, also described as severe psychotic depression. 

6. The application filed on 25 June 2020 also referred to the applicant’s alleged intolerable conditions and suffering severe mental and physical harm and harm in Papua New Guinea and alleged that the applicant’s transferral for medical treatment to Australia has been intolerable and inhumane and alleges that the detention is indefinite. 

7. Reference was also made to the applicant’s discharge summary dated 6 May 2020, from Exhibit CAH-5 to the affidavit of Chloe Ann Hillary, concerning back pain and occipital lymphoma rather it was submitted than the applicant’s history of rape and trauma, and diagnoses of severe psychotic depression.

8. The applicant claims that he had suffered incidents whilst in detention and the applicant on 7 December 2020, made a request for removal from Australia back to the Papua New Guinea. 

9. The amended application asserts an entitlement under s 197AB of the Act for determination by the Minister in relation to residence determination.

10. It is apparent the Minister is under no duty, because of s 197AE of the Act, in that regard and the prayers for relief have no prospect of success on this ground. The application also made reference to s 195A of the Act in respect of a discretion of the Minister, and again, under s 195A(4) of the Act, the Minister does not have any duty to consider such a request and no cause of action arises in respect of that allegation. 

11. The applicant is from Iran and arrived in Australia in July 2013 as an unauthorised maritime arrival and was transferred to Manus Island for a refugee status determination. 

12. Of relevance in relation to the proceedings before this Court, the applicant’s representative, on 24 June 2019, notified the department that the plaintiff is a ‘relevant transitory person’ within the meaning of s 198E(1) of the Act and on 12 July 2019 the first respondent refused to approve the plaintiff’s transfer under s 198E(4) of the Act. 

13. There was a review conducted by the Independent Health Advice Panel on 15 July 2019 following which the first respondent approved the applicant’s transfer to Australia. 

14. On 23 July 2019, the plaintiff signed an agreement to medical transfer. 

15. On 25 July 2019 the applicant arrived in Australia. 

16. The applicant is an unlawful non-citizen within the meaning of s 14 of the Act and has been detained pursuant to s 189 and s 196 of the Act in the Melbourne Immigration Transit Accommodation (“MITA”) Detention Centre upon his arrival in Australia.  The respondent has discharged its onus to prove the ongoing detention of the applicant is lawful because of the said statutory provisions.

17. Since arriving in Australia, the applicant has been reviewed by clinicians from the International Health and Medical Services (“IHMS”) for his mental and physical health issues. 

18. The plaintiff was reviewed by an IHMS mental health nurse on multiple occasions in September and December 2019, January, March, April, May 2020.

19. The applicant was reviewed by an IHMS psychiatrist on 14 October 2019 and 14 April 2020. 

20. The applicant was monitored by the IHMS mental health team after making threats of self-harm in September 2019 and March and April 2020. 

21. The applicant was referred to the Northern Hospital for surgical assessment in relation to his request for the removal of his lipoma. The surgery had been postponed until a date to be advised as a result of the COIVD-19 pandemic. 

22. On 5 May 2020, the applicant was taken to the Northern Hospital after he was unresponsive when asked if he could guarantee his own safety.  He was discharged the following day. 

23. On 20 May 2020, the IHMS provided an updated Health Summary.  In relation to the surgery for removal of the plaintiff’s lipoma, IHMS advised that he was again on a Category 3 waiting list for non-urgent surgery and a surgery date could not be provided at present. 

24. On 9 August 2019, the applicant was referred for consideration against s 197AB in the Ministerial Intervention Guidelines. That process was finalised without referral to the respondents.

25. The applicant will be assessed under s 195A of the Ministerial Intervention Guidelines in due course, if appropriate, and will be referred to the respondents for consideration under the non-compellable powers of s 195A of the Act. 

26. The respondents are not presently considering the exercise of their non-compellable powers under s 195A of the Act in light of the COVID-19 pandemic, unless there are exceptional circumstances. 

27. As at 21 May 2020, the plaintiff had been the subject of a Status Resolution Officer since 19 December 2019 and had not made any request to her to be returned to Papua New Guinea until 24 April 2020 where he expressed an interest in being returned there. 

28. On 21 May 2020 the applicant advised the Status Resolution Officer that he is no longer requesting to be returned to Papua New Guinea. 

29. The applicant fears harm in his home country by reason of being a gay person. 

Before the Court

1. These proceedings, after their referral by Bell J on 6 July 2020, are ones in respect of which this Court has jurisdiction pursuant to s 44(3) of the Judiciary Act 1903 (Cth).

2. Mr Taylor, who appeared on behalf of the applicant today, first endeavoured to persuade the Court to issue a subpoena requiring production of communications between the respondents and the regional processing centres for the purpose of seeking alleged relevant evidence in respect of an argument that the applicant would be unable to return to a regional processing centre. 

3. Mr Taylor contended that it was necessary to obtain further evidence relating to the practical difficulties the applicant would face in terms of being returned to the respective processing centres. 

4. After the remittal of these proceedings from the High Court, a Registrar of this Court, on 27 August 2020, made orders fixing the matter for hearing today and providing an opportunity for the plaintiff to file further evidence by 31 August 2020. 

5. The Court is satisfied that the applicant has had ample opportunity to adduce relevant evidence referable to the processing centres if the applicant wanted to and the belated application for a subpoena should not be granted.

6. The breadth of the subpoena on its face reflected an exercise of fishing and was issued at the last minute in terms of the hearing date that had been fixed by the Court. The Court was not satisfied that the subpoena should in those circumstances be allowed and refused the request for the issue of the subpoena. 

7. Mr Taylor also, as a result of more recent events in which his client on 7 December has requested his return to Papua New Guinea, sought to rely on a proposed second further amended application. That second further amended application was opposed by the respondents on the grounds of want of utility because the grounds had no prospect of success. 

8. The second further amended application alleges a different alleged breach by the respondents in an allegation advanced that the respondents are unwilling or unable to remove the applicant to a regional processing centre as required under s 198 of the Act and referring to the applicant’s recent request for removal to Papua New Guinea made on 7 December 2020. 

9. The alleged ground is clearly a fresh and different cause of action from the subject matter that was remitted to this Court. However, the Court accepts it would be within the Court’s jurisdiction because of s 18 of the Federal Circuit Court of Australia Act 1999 (Cth). However, the application is clearly premature in respect of these proceedings given the change of events as a result of the 7 December 2020 request from the circumstances when the proceedings were originally commenced in the High Court. The request for removal was only made on 7 December 2020.

10. An affidavit has been read by the respondents which identifies that steps have been taken in response to the request made by the applicant including the sending of that request to the MITA Detention Operations on 8 December 2020, and on 10 December 2020 the request was sent to the Regional Processing Resettlement Taskforce, and that on 16 December 2020 the request was sent from the Regional Processing Resettlement Taskforce to the VIC removals to commence consideration of the availability of the applicant for voluntary removal to Papua New Guinea. 

11. The applicant’s amended application insofar as it relies upon the recent events, does not identify any proper cause of action to support the contention that the applicant’s ongoing detention is unlawful. Nor has there been any unreasonable delay upon which the applicant could advance any cause of action to suggest the steps currently being taken give rise to the detention being unlawful.  Further, it is apparent that prior to the request by the applicant there was medical treatment which was the purpose of the applicant’s ongoing presence in Australia and there is no proper basis to identify that the detention of the applicant is unlawful. 

12. The contentions advanced by Mr Taylor that there had not been reasonable steps taken to remove the applicant to Papua New Guinea suffer from the obvious difficulty that only a very brief period has already passed since that request was made. It cannot logically or rationally be contended that there has been an unreasonable failure by the respondents to take steps in response to the request made on 7 December 2020. Further, the evidence identifies the taking of reasonable steps in that regard. 

13. There is no basis to find that the detention of the applicant is unlawful. The contention that there have been no steps taken to remove the applicant under s 198AD of the Act since the making of the request is also without substance, given the evidence to which the Court has referred. The alleged duty of care by the respondents is based upon unlawful conduct in the detention of the applicant as there has been no unlawful conduct by the respondents no such duty of care arises. Nor does the evidence support any finding of an excess of statutory power by the respondents either in relation to the presence of the applicant in Australia or the continuing detention. There is no basis identified to find any negligent or careless exercise of statutory power in the continued detention of the applicant. No tort of misfeasance of public office has been alleged and whatever the scope of the applicant’s alleged duty of care cause of action it does not provide any remedy in a case such as the present where the alleged negligence, which has not been established, is in relation to continued detention which is lawful.

14. It cannot be said that the respondents have unreasonably failed to undertake a process to consider the applicant’s claims in respect of Papua New Guinea in the circumstances where the request for removal has only just been made. Further, the applicant’s very recent identification of a desire to return to Papua New Guinea presents an obvious difficulty in respect of the proposed amended application. 

15. The Court is satisfied that the proposed second further amended application has no reasonable prospect of success and that there would be no utility in granting leave to amend in respect of the further amended application. 

16. In respect of the substantive proceedings, the subject of the remittal,  this seeks to advance a contention of a failure to take steps in respect of the applicant’s medical treatment, which has clearly been overtaken by the applicant’s own steps in seeking to ask for his return to Papua New Guinea, which has now been processed.  Given the above evidence the Court does not accept Mr Taylor’s submissions that there has been a failure to take steps in relation to the purpose for which the applicant was brought to Australia or that there has been any breach of the agreement under which the applicant came to Australia. Nor until 7 December 2020 does the Court accept that the medical purpose had ceased to have continuing application to the applicant. In this regard the Court relies in particular on the deferred surgical treatment that was still pending.

17. Notwithstanding that much of the submissions advanced by Mr Taylor in relation to the applicant’s plight are what the Court describes as sad circumstances, there is no proper basis to find that the ongoing detention of the applicant in light of his request for removal is in any way unlawful. Nor is there any basis to find that the detention of the applicant has been indefinite. The sad circumstances and compassionate plea on behalf of the applicant does not give rise to any cause of action or right to the remedies alleged in the amended application.

18. Further, alleged reliance upon powers that do not give rise to any duty upon the Minister to exercise the same does not give to any basis to find that the ongoing detention is unlawful. The substance of Mr Taylor’s submissions were in reality to appeal to the Court on compassionate grounds as to the sad plight of the applicant, none of which identify any proper legal basis to find that the continued detention of the applicant is unlawful.  The continued detention has an evident and intelligible justification being the statutory provisions to which the Court has referred and the Court is satisfied reasonable steps have been taken both in respect of the applicant’s medical treatment purpose in coming to Australia and now in responding to the request made on 7 December 2020. No legal unreasonableness has been established by the application in the exercise of powers by the respondents.

19. There is accordingly no proper case disclosed for relief by way of writ of habeas corpus or to order the release of the applicant from MITA or any proper basis for an injunction preventing the defendants from continuing to detain the applicant. 

20. Nor is there any proper basis to require that the defendants consider only one regional processing centre rather than the other. The Court does not accept that it is legally unreasonable for the respondents to consider exercise of powers of removal in respect of both regional processing centres. The request by the applicant for removal to one particular regional processing centre does not bind the respondents. 

21. The applicant being an unlawful non-citizen and a transitory person, was brought to Australia for the temporary purpose of s 198C of the Act, gives rise to circumstances as a result of the combined effect of s 198(1) and s 198A(2) of the Act, that the plaintiff must now be removed as soon as reasonably practical after he no longer needs to be in Australia for the purpose for which he attended.  Only on 7 December 2020 as a result of the applicant’s request for a return to Papua New Guinea, could be said that the applicant no longer needs to be in Australia for that purpose. 

22. Taking into account the COVID-19 circumstances in Australia, it cannot possibly be said that there has been any unreasonable failure in the circumstances, since 7 December 2020, to remove the applicant to Papua New Guinea. Further the evidence identifies referred to above proves that reasonable steps are being taken for the removal of the applicant.

23. No cause of action in the amended application against the alleged respondents has been made out. The Court is not satisfied that there is any proper basis for the issuing of a writ of habeas corpus, an injunction or any other relief in respect of the amended application for a Constitutional writ that was filed with the High Court. Accordingly the amended application must be dismissed.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the transcript of the published oral reasons for judgment of Judge Street delivered in open Court on 16 December 2020 and the parties were sent a sealed copy of the Court’s orders.

Associate: 

Date: 23 December 2020