FCZ20 v Minister for Home Affairs
[2022] FedCFamC2G 15
•28 January 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
File number(s): SYG 2826 of 2020
SYG 2938 of 2020
SYG 2982 of 2020
SYG 2989 of 2020
SYG 23 of 2021
SYG 48 of 2021
SYG 50 of 2021
SYG 52 of 2021Judgment of: JUDGE DRIVER Date of judgment: 28 January 2022 Catchwords: MIGRATION – Medevac detainees – applications for mandamus to compel a non-refoulement assessment prior to any removal or return of the detainees to Papua New Guinea or Nauru – issue rendered moot following intervention by the Minister – observations on what relief might be available in an appropriate case – applications dismissed.
Legislation: Migration Act 1958 (Cth), ss.5, 46A, 195A, 197C, 198, 198AA, 198AD, 198AH
Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)Cases cited: Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20 [2021] FCAFC 195
Al-Kateb v Godwin (2004) 219 CLR 562
AOU21 v Minister for Home Affairs [2021] FCAFC 60
Australian Broadcasting Corporation v O'Neill(2006) 227 CLR 57
AZC20 v Minister for Home Affairs [2021] FCA 1234
Beecham Group Ltd v Bristol Laboratories Pty Ltd(1968) 118 CLR 618
Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre and Another (2006) 155 FCR 465
Commonwealth v AJL20 (2021) 95 ALJR 567
Country Carbon Pty Ltd v Clean Energy Regulator (2018) 267 FCR 126
ENT19 v Minister for Home Affairs [2021] FCAFC 217
FDT20 v Minister for Home Affairs [2021] FCA 1484
FDT20 v Minister for Home Affairs [2021] FCCA 711
FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88
M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 146
MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442
Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505
MZYYO v Minister for Immigration and Citizenship (2013) 214 FCR 68
NATB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 133 FCR 506
Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1
Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582
Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531Division: Division 2 General Federal Law Number of paragraphs: 53 Dates of hearing: 16, 17 November 2021 Date of last submissions: 19 January 2022 Solicitor for the Applicants: Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration Counsel for the Respondents: Ms C Roberts Solicitors for the Respondents: Australian Government Solicitor ORDERS
SYG 2826 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FCZ20
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
SYG 2938 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FHF20
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
SYG 2982 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIO20
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
SYG 2989 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: FIZ20
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
SYG 23 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ABG21
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
SYG 48 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACB21
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
SYG 50 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACC21
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
SYG 52 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ACE21
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:
28 JANUARY 2022
ORDERS:
1.The applications listed in this judgment are dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE DRIVER:
This is the latest in a series of judgments I have delivered concerning so called medevac detainees who were brought to Australia from a regional processing country for temporary purposes (generally medical treatment) and kept in detention in Australia. Previous judgments have dealt with issues concerning the continuing detention of the detainees and whether an obligation has arisen to return or remove them to a regional processing country.[1] This judgment deals with the single issue of whether a non-refoulement assessment is required prior to any such removal or return.
[1] See, for example, FDT20 v Minister for Home Affairs [2021] FCCA 711 and FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88
Six matters were heard on 16 and 17 November 2021: ABG21 v Minister for Home Affairs,[2] ACE21 v Minister for Home Affairs,[3] FHF20 v Minister for Home Affairs,[4] FCZ20 v Minister for Home Affairs,[5] FIZ20 v Minister for Home Affairs[6] and FIO20 v Minister for Home Affairs.[7] Applicants FCZ20 and FIZ20 gave oral evidence on the question of whether they still need to be in Australia despite their temporary purpose not yet being complete. Applicant FCZ20 provided a video deposition.
[2] Proceeding SYG 23 of 2021
[3] Proceeding SYG 52 of 2021
[4] Proceeding SYG 2938 of 2020
[5] Proceeding SYG 2826 of 2020
[6] Proceeding SYG 2989 of 2020
[7] Proceeding SYG 2982 of 2020
Two additional cases have been added to this cohort: ACC21 v Minster for Home Affairs[8] and ACB21 v Minister for Home Affairs.[9] At a directions hearing on 26 November 2021 the applicants’ representatives indicated that no findings specific to the facts of those cases would be sought. The two additional cases were added to the cohort on the basis that they were transferred to Australia for a temporary purpose from Nauru, whereas the other six individuals were transferred from PNG. The applicants’ representatives suggested that there may be some significance in the distinction. On that basis, and specifically the basis that no findings are sought to the effect that there has been any failure to remove the applicants as soon as reasonably practicable (a matter which is denied by the respondents and upon which the respondents have stated that they would wish to put on evidence if it were in issue), I found that it appeared these cases could be decided “on the papers” along with the original six. That was not disputed.
[8] Proceeding SYG 50 of 2021
[9] Proceeding SYG 48 of 2021
On 1 December 2021 the respondents’ solicitors notified the Court that earlier that day the Minister for Home Affairs had exercised her Ministerial Intervention power under s 195A of the Migration Act 1958 (Cth) (Migration Act) to grant a Humanitarian Stay (Temporary) (subclass 449) visa and a Bridging E (subclass 050) visa to each of ABG21, ACE21, FHF20, FIO20, FCZ20 and FIZ20.
On 13 December 2021 the respondents’ solicitors informed my chambers and the applicants’ representatives that the Minister had intervened on that day under the same provision to grant the same classes of visas to the two applicants whose cases were to be decided on the papers, namely ACB21 and ACC21.
It follows that the sole issue to be determined in this judgment is rendered moot. Having been granted visas there is no present prospect of these applicants being compelled to leave Australia, whether to a regional processing country or anywhere else.
Nevertheless, in these reasons, I consider the issue of the demand for a non-refoulement assessment, as an obiter dictum.
Further procedural background is set out in the respondents’ written submissions dated 16 November 2021 and not repeated here. I have been substantially assisted by the respondents’ pre hearing and post hearing submissions. The applicants provided pre hearing submissions on 15 November 2021. On 19 January 2022 the applicants’ solicitors filed further submissions “for the mandamus cohort”. I have considered those submissions.
These reasons:
(a)briefly summarise the factual circumstances of each of the eight cases; and
(b)set out the parties’ legal arguments and comment upon them.
Background to each of these matters is briefly set out below.
In ABG21 the temporary purpose for which the applicant was brought to Australia was completed on or around 28 March 2021.[10]
[10] see Court Book (CB) 254, also see, eg, final order 2 sought by ABG21 in the amended application dated 15 November 2021, seeking a declaration that “The Court notes that the Medical Opinion of an Officer of the Commonwealth on 28 March 2021 indicated that the temporary purpose for which the applicant was brought to Australia is completed”
In ACE21 the temporary purpose for which the applicant was brought to Australia was completed on or around 17 April 2021.[11]
[11] see CB 637
In FHF20 the temporary purpose for which the applicant was brought to Australia was completed on or around 28 March 2021.[12]
[12] see CB 477
In FIO20 the temporary purpose for which the applicant was brought to Australia was completed on or around 13 March 2021.[13]
[13] see Supplementary Court Book (SCB) 646
In FCZ20:
(a)the applicant still needs to be in Australia for the temporary purpose for which he was brought to Australia;[14]
(b)the applicant has submitted that, while the temporary purpose for which he was brought to Australia has not been completed, he no longer needs to be in Australia and so meets s 198AH(1A)(c); and
(a)the applicant gave oral evidence on 17 November 2021, in which he indicated that:
(i)paragraph [4] of his 29 March 2021 affidavit, which refers to the applicant holding the view that “the medical treatment I need is not available on Nauru” was his opinion at the time he gave that evidence and remains his opinion today;
(ii)he does not wish to return to Nauru;
(iii)he is currently exploring options for resettlement in Canada, as recorded on page 4 of a report annexed to his affidavit made on 5 October 2021; and
(iv)the applicant’s representatives indicated that the applicant is not seeking a finding that, if the Court were to conclude that s 198AH(1A)(c) is engaged, there has been any failure to effect his removal as soon as reasonably practicable. I have not considered that issue any further.
[14] see SCB 81
In FIZ20:
(a)the applicant still needs to be in Australia for the temporary purpose for which he was brought here;[15]
(b)the evidence indicates that the applicant will “require lifelong interventions not available in Nauru”;[16]
(c)the applicant gave oral evidence on 17 November 2021, during which he acknowledged that he has significant ongoing medical needs; and
(d)the applicant’s representatives indicated that the applicant is not seeking a finding that, if the Court were to conclude that s 198AH(1A)(c) is engaged, there has been any failure to effect his removal as soon as reasonably practicable. I have not considered that issue any further.
[15] see SCB 177
[16] CB 9
The various applications filed in each of the six proceedings listed for hearing on 16 and 17 November 2021 are summarised in the respondents’ 16 November 2021 submissions.
In ACC21:
(a)the temporary purpose for which the applicant was brought to Australia has been completed,[17] and therefore the removal obligation in s 198AD is engaged; and
(b)an amended application dated 16 November 2021 was provided to the respondents and the Court by email.
[17] see 17 April 2021 medical opinion at CB 322
In ACB21:
(a)the applicant was transferred to Australia as an accompanying family member of ACC21;[18]
(b)as ACC21 no longer needs to be in Australia for the temporary purpose for which he was brought to Australia, a removal obligation has also arisen in relation to ACB21; and
(c)a proposed amended application was emailed to the respondents on Friday 26 November 2021 (under cover of an email with the subject line “ACC21”).
[18] see, eg, CB 54
On Sunday 28 November 2021 the respondents’ solicitors were copied on an email sent by the applicants’ representatives indicating that in ABG21, FHF20, FCZ20, FIZ20, ACE21 and FIO20 (ie, the six matters heard on 16 and 17 November 2021) that:
Further to the 2nd proposed Amended Migration Application signed 15th November 2021 and sent by email to chambers and the respondent on 15th November 2021 at 2.44pm (below), we advise that [i]n the reserved matters the Applicants are not pressing issues concerning s.198AD(3), s.198AD(11), s.196(1)(aa) detention, but rely solely on the requirement to act in accordance with Australia’s international obligation to conduct a non-refoulement assessment.
On Monday 29 November 2021 the respondents’ solicitors were copied on an email sent by the applicants’ representatives indicating:
We apologise for the previous email and any confusion it may have caused. We would indicate that the applicant’s do rely on the proposed Amended Application that was sent on 15th November 2021 and argued and retract the below email.
(error in original)
The document referred to as having been sent at 2.44pm on 15 November 2021 is the document referred to as the “Latest ABG21 Application” in the respondents’ 16 November 2021 submissions.
I understand the ground relied on in each of the applications to be that set out in the latest ABG21 Application, ie:
The Respondent is in breach of the mandatory obligation to assess according to law the applicant’s claim against refoulement to the regional processing countries.
CONSIDERATION
Obligation to conduct a non-refoulement assessment
The respondents’ post hearing submissions expand upon the submissions filed on 16 November 2021 (including by addressing some recent authorities).
The respondents’ 16 November 2021 written submissions briefly addressed a ground that appeared to be relied on in two cases to the effect that there had been a “historical” failure to conduct a non-refoulement assessment (at or around the time those applicants had first been sent to Papua New Guinea). At the hearing on 16 and 17 November 2021, the applicants’ representatives appeared to accept that this ground did not give rise to a ground distinct from their primary ground (about an alleged obligation to conduct such an assessment now). Accordingly, this topic was not addressed any further in the respondents’ written submissions and I have not considered it. In short, whatever the previous position applying at the time of the initial transfer of those applicants to Papua New Guinea, any relief now sought relates to the applicants’ current situation.
I accept that s 198AD applies to the applicants irrespective of whether they have been assessed to be persons in respect of whom Australia owes “non-refoulement obligations” within the meaning of s 5 of the Migration Act. The decision of Kerr J in MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[19] does not hold otherwise.
[19] [2021] FCA 442
Both M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs[20] and NATB v Minister for Immigration and Multicultural and Indigenous Affairs[21] contain useful guidance on when a removal will be “reasonably practicable”: for example, this “seems to be largely, if not entirely, concerned with whether the removal is possible from the officer’s viewpoint”,[22] and even matters including “whether death, torture, persecution or other mistreatment of an unlawful non-citizen which is likely, or even almost certain, to occur after he or she is removed from Australia” are not to be taken into account in the enquiry.[23] That may seem extraordinary, because it is.
[20] (2003) 131 FCR 146
[21] (2003) 133 FCR 506
[22] M38/2002 at 165 [65]
[23] NATB at 510 [13]
In NATB at 516-517 [52]-[53], the Federal Court indicated that:
However, some observations may be made. First, it is possible to say that determination about reasonable practicability is not necessarily limited to physical considerations, such as the health of the person to be removed, or the availability of an operating airport in the country of destination. The willingness of another country to allow the person to enter its territorial boundaries is at least one non-physical factor relevant to reasonable practicability. Second, without attempting an exhaustive statement, it is possible to identify some limitations on the matters relevant to determination of reasonable practicability. They arise out of the words themselves. The relevant considerations are practical considerations, as is indicated by the dictionary definitions of `practicable' set out at [47] above, Moreover, the context for determining reasonable practicability is the proposed physical removal of the person from Australia.
This second limitation is of critical importance to the resolution of the appellants' principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.
In FDT20 v Minister for Home Affairs,[24] Griffiths J accepted that the “core proposition that there is an obligation to conduct a non-refoulement assessment prior to [the appellant in that case] being removed to PNG is inconsistent with authorities such as NATB”.[25]
[24] [2021] FCA 1484
[25] At [42]
As conducting any such assessment has no bearing on whether or not it is reasonably practicable to remove a person, there is no basis on which this Court could compel the respondents to perform that task (ancillary to, for example, mandamus for removal).
Plainly, if a decision were made to undertake a non-refoulement assessment (itself a matter to be determined by the executive), the task of actually performing that assessment would also fall to the executive.[26]
[26] : cfBeyazkilinc v Manager, Baxter Immigration Reception and Processing Centre and Another (2006) 155 FCR 465 at [40]-[44]
As the Full Federal Court observed in AOU21 v Minister for Home Affairs[27] at [131], “emphatic language is used about the circumstances in which the ‘taking’ obligation in s 198AD will apply to transitory persons in Australia”. Consistently, as Gageler J observed in Plaintiff M96A/2016 v Commonwealth[28] at 598 [37]:
s 198AD(2) where it applies by operation of s 198AH(1) [is] unequivocal as to the circumstances in which that duty to remove is triggered.
[27] [2021] FCAFC 60
[28] (2017) 261 CLR 582
In FDT20, Griffiths J accepted that a proposed ground (similar to that in the cases before this Court) was inconsistent with Plaintiff M96A/2016 as affirmed in AOU21.[29] His Honour (who was on the AOU21 bench) also noted that AOU21 was distinguishable from the circumstances of FDT20 because in AOU21, unlike FDT20, the Commonwealth had accepted that an assessment may be required.[30] The eight cases currently before the Court share this common feature with FDT20, and are accordingly distinguishable from AOU21.
[29] At [43]
[30] FDT20 at [43]
Further, the statutory language gives effect to what the Full Federal Court described in AOU21 at [123] as an “absolute and policy-driven bifurcation” in the scheme of the Migration Act. The Migration Act “bifurcates the treatment of those who are, by the Act, classified as ‘unauthorised maritime arrivals’ from the treatment of all other people who arrive in Australia without a visa”.
The applicants’ contention, that prior to removal or return to a regional processing country an obligation to conduct a non-refoulement assessment exists, depends on a reading of s 198AH(1) and (1A), and s 198AD(2) as limited by words which do not appear in the statute itself. That is, even where s 198AD(2) otherwise applies to a person, the obligation to remove is somehow limited by a requirement, at least in some circumstances, to assess whether Australia owes “non-refoulement obligations” in relation to the person and one or more regional processing countries. Section 198AH(2) provides that s 198AH(1) applies “whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol” (emphasis in original). As the Full Federal Court held in AOU21 at [139], that subsection underlines “[t]he absolute nature of the policy” by “mak[ing] it clear that even recognised refugee status is not intended to preclude a person from being subject to removal back to a regional processing country”.
However, I accept that s 198AH(2) cannot somehow operate such that s 198AH(1) is to be read as if it contained words of additional limitation in relation to persons to whom Australia has non-refoulement obligations in respect of one or more regional processing countries.
As to the extremely limited circumstances in which a court can “read in” statutory language not expressed by Parliament, see Taylor v The Owners – Strata Plan No 11564,[31] applied for example in Country Carbon Pty Ltd v Clean Energy Regulator[32] (Mortimer J).
[31] (2014) 253 CLR 531
[32] (2018) 267 FCR 126
The decision of Kerr J in MB does not hold that s 198AH is to be construed in any such way. Kerr J relevantly held as follows at [66]:
[Australia’s non-refoulement obligations] extend to Nauru as they do to any other nation. I record that I am entirely unpersuaded of the submission the Respondents advanced that the scheme of the Migration Act requires a conclusion that any claims the Applicant might seek to advance that he is owed non-refoulement obligations with respect to Nauru could not stand in the way of his being taken to Nauru pursuant to s 198AD of the Migration Act. Having had the benefit of full argument on the subject, I am satisfied that the Applicant’s submission must be accepted that the omission in s 197C of the Migration Act of a reference to s 198AD is not to be dismissed as a mere drafting oversight …
(emphasis added)
Accordingly, his Honour construed s 198AD of the Migration Act as subject (impliedly) to the limitation that the High Court[33] had construed s 198 as (impliedly) being subject to, prior to the insertion of s 197C, and which the insertion of s 197C was designed to reverse.[34] In MZYYO v Minister for Immigration and Citizenship[35] at 79 [65], Murphy J summarised the position (prior to the insertion of s 197C) as being that “s 198 does not authorise [the Minister] to remove a person found to be a refugee to any country where he or she has a well-founded fear of persecution”.
[33] Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319; Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 at 178 [54] (French CJ), 190-191 [91], [94] (Gummow, Hayne, Crennan and Bell JJ), 224 [214] (Kiefel J); Plaintiff M47/2012 v Director-General of Security (2012) 251 CLR 1 at 55 [99], 68-69 [150] (Gummow J), 119 [294] (Heydon J), 185 [509], 194 [535] (Bell J), and accordingly the Federal Court: Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 (Full Federal Court); MZYYO at 78-79 [56]-[65] (Murphy J)
[34] Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth), see also the Explanatory Memorandum for the Bill at [1128]-[1146] as to the purpose of this aspect of the Bill being to reverse the jurisprudence
[35] (2013) 214 FCR 68
In FDT20, Griffiths J accepted at [45] that:
These observations in MB are in the nature of obiter dicta. It is difficult to reconcile them with the Full Court’s decision in NATB. Nor is it apparent whether his Honour was taken to ss 198AA(b) or 198AH(2). Justice Kerr ultimately accepted in MB that there was a lawful basis for detention in that case. Moreover, Kerr J’s decision is not inconsistent with the core proposition advanced by the respondents, namely that s 198AD applies where s 198AH(1) provides that it does.
Section 198AA, to which Griffiths J referred in FDT20, provides the following guidance on the reasons for the subdivision:
This Subdivision is enacted because the Parliament considers that:
(a)people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and
(b)unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and
(c)it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and
(d)the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.
Section 198AH(2) provides that:
Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.
(emphasis in original)
If the duty to take a transitory person to one or more regional processing countries under s 198AD(2) were subject to an implied constraint of the kind previously recognised with respect to s 198 (which is contested by the respondents), that may affect to which regional processing country a person is taken and, potentially, if and when any such taking may be effected, including the possibility of indefinite detention until either:
(a)the circumstances that give rise to the existence of non-refoulement obligations change thereby allowing the transitory person to be taken to that country;
(b)a new regional processing country being declared in respect of which no non-refoulement obligations are owed in respect of the person;
(c)the Minister making a determination under s 198AE; or
(d)the Minister granting the person a visa, for example under s 195A.
The power to detain would subsist, notwithstanding that there is no likelihood of the applicant being taken to a regional processing country under s 198AD(2) in the reasonably foreseeable future.[36]
[36] Al-Kateb v Godwin (2004) 219 CLR 562; Plaintiff M96A/2016; Commonwealth v AJL20 (2021) 95 ALJR 567; AZC20 v Minister for Home Affairs [2021] FCA 1234 at [109]-[117]
The parties were invited by the Court to address the recent decision in ENT19 v Minister for Home Affairs.[37] The respondents submit that this authority is not of present assistance. I agree.
[37] [2021] FCAFC 217
In ENT19, the Full Federal Court considered a decision to dismiss an application for judicial review of an administrative decision made by the Minister. The Court accepted that no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the appellant a visa without considering whether returning the applicant (in that case) to Iran would involve a breach of non-refoulement obligations. At [108], Katzmann J (Collier and Wheelahan JJ agreeing at [1] and [138]) held that:
in the particular circumstances of the present case no reasonable decision-maker could lawfully calculate whether it was in the national interest to grant the applicant a visa without considering both these prospective eventualities. Even if detaining the appellant indefinitely were lawful, as a legal consequence of his decision the Minister was bound to take it into account before determining whether he could be satisfied that it was in the national interest to grant the appellant a visa.
I accept that the critical difference with the present case is that in ENT19 there was an obligation to consider a reviewable matter, whether the grant of the visa was in the “national interest”. There is no such obligation arising in relation to any of the eight applicants in the present case. There is no obligation in the present cases on the Minister to consider the grant of a visa.[38] Powers that the Minister has to consider the grant of a visa are non-compellable. The same distinction can be drawn in relation to the decision of the Full Federal Court in Acting Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CWY20.[39]
[38] see ss 46A(7) and 195A(4) of the Migration Act
[39] [2021] FCAFC 195
The respondents’ only relevant obligation was, prior to the Minister’s intervention, to ensure that the applicants (with the possible exception of FIZ20 and FCZ20, depending on a hypothetical conclusion by the Court that a removal obligation arises in those cases) were removed as soon as reasonably practicable.
During the hearing on 16 and 17 November 2021 I suggested that it may be open for the Court to grant some form of injunction preventing the removal of applicants who requested a non-refoulement assessment until such time as they received one.
As the respondents point out, there would be a question how such an injunction would be in aid of some legal right capable of protection by injunctive relief. If there is no obligation on the respondents to conduct a non-refoulement assessment then there would be no breach of any obligation by removing an applicant even if that person did not consent to removal. An interlocutory (or final) injunction would only be contemplated by the Court if the applicants had established that they have an arguable case of having an underlying right of some sort to protect.[40] For the present in these cases the question is academic.
[40] Australian Broadcasting Corporation v O'Neill(2006) 227 CLR 57 at [65]; Beecham Group Ltd v Bristol Laboratories Pty Ltd(1968) 118 CLR 618 at 622-633
It follows that, while Australia is answerable in international forums for its compliance with its obligations under the Refugees Convention and Protocol, for present purposes mandamus is not available in this Court to compel compliance with any duty to conduct a non-refoulement assessment in the circumstances dealt with in these reasons.
Finally, it should be noted that in the event that the executive chose to institute a process for consideration of non-refoulement claims in relation to a regional processing country ancillary to the exercise of the power to remove or return a person to that country, it is likely that the non-refoulement process thus established would be subject to the supervisory jurisdiction of this Court.
DISPOSITION
The relief sought by the applicants in each of the eight cases presently before the Court is unavailable. The applications the subject of this judgment will be dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Dated: 28 January 2022
SCHEDULE OF PARTIES
SYG 2826 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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