FDD20 v Minister for Home Affairs

[2021] FCCA 1495

FEDERAL CIRCUIT COURT OF AUSTRALIA

FDD20 v Minister for Home Affairs [2021] FCCA 1495

File number(s):	SYG 2831 of 2020
Judgment of:	JUDGE DRIVER
Date of judgment:	11 August 2021
Catchwords:	MIGRATION – Application for release from detention – applicant brought to Australia from a regional processing centre for the temporary purpose of medical treatment – whether the applicant still needs to be in Australia and whether the respondents are under an obligation to remove him from Australia considered – lawfulness of the applicant’s detention considered – application dismissed.
Legislation:	Migration Act 1958 (Cth) ss 14, 189, 198AD, 198AG, 198AH, 198B, 198C, 198E
Number of paragraphs:	23
Date of last submission/s:	6 July 2021
Date of hearing:	Decided without oral hearing
Place:	Sydney
Solicitors for the Applicant:	Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration
Counsel for the Respondents:	Mr P Knowles, Ms C Ernst, Ms C Roberts
Solicitors for the Respondents:	Australian Government Solicitor

ORDERS

SYG 2831 of 2020

BETWEEN:

FDD20

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

SECRETARY, DEPARTMENT OF HOME AFFAIRS

Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	11 AUGUST 2021

THE COURT ORDERS THAT:

1.The application as amended on 6 April 2021 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By an application filed on 15 December 2020, the applicant seeks declarations that his detention is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful and orders that he be released from detention forthwith. He also seeks costs. The ground in support of the application is:

   1.The detention is unlawful because the [respondent] is unwilling or unable to remove the Applicant to Papua New Guinea as required by ss.198(1) and 198(1A) of the Migration Act 1958;

   Particulars.

   i.The applicant made an oral request for removal from Australia to Papua New Guinea in February 2020.

   ii.The applicant made written requests for removal to Papua New Guinea by depositing in the ABF drop box in the detention facility requests for removal to Papua New Guinea, on 18th November 2020 and 8th December 2020.

   iii.The [respondents] have not taken reasonable and necessary steps to carry into effect their obligation to remove the applicant to Papua New Guinea as soon as reasonably practicable as required by s.198(1A) and s.198AD(2) of the Migration Act 1958.

   iv.The detention of the applicant is not supported by any lawful purpose as required by the Migration Act 1958.

   v.The [respondents] through the Department have not assessed the applicant against the s.46 or s.195A Ministerial Intervention guidelines

2. On 8 February 2021 the applicant filed an Application in a Case seeking interlocutory orders in the nature of habeas corpus pending a final determination of the matter.  The grounds in support of that application are:

   1.        The applicant has suffered significant harm in detention.

   2.The applicant was brought to Australia for medical assessment but has been advised in March 2020 that he cannot receive medical treatment.

   3. The applicant requested removal to a regional processing country but has not been removed.

   4. The Respondent has not provided any evidence to justify the purpose of detention.

3. The applicant filed submissions in support of his applications on 11 March 2021. 

4. On 25 March 2021, I made orders for the filing and service of an amended principal application and the provision of evidence. 

5. The solicitor for the applicant filed an affidavit on 6 April 2021, to which is annexed an amended application (which does not appear to have been filed).  That application as amended seeks the following orders:

   1.A declaration that the detention is not authorised by the Migration Act 1958 or any other power and is therefore unlawful.

   2.A declaration that since on or about 8th November 2019 and/or 3 June 2020 the detention has been unlawful.

   3.A Writ of Habeas Corpus issue requiring the respondents to release the applicant from immigration detention immediately.

   4.A Declaration that the Migration (Direction for Regional Processing Countries) Instrument 2021 dated 23 March 2021 but completed on 25 March 2021 (the “Direction”) Admin 21/031, is invalid.

   5.A Declaration that the Ministerial Direction of 15th July 2014 directing that the class of persons to whom the applicant belongs be returned to PNG is spent and/or its application to the applicant carrying with it a purported power to detain, is an abuse of process.

   6.An order in the nature of prohibition preventing the respondents and their agents and officers from detaining the applicant pursuant to s 189 of the Migration Act 1958.

   7.In the event that the Court finds that it lacks the power to issue writs of Habeas Corpus, or declines to issue such writs, an order of mandamus compelling the respondents to remove the applicant to Papua New Guinea.

   8.        Costs.

   9.        Any further order or other relief as the Court deems appropriate.

6. The grounds in the application as amended are:

   1.The applicant’s detention is not authorised by law as he is being detained otherwise than for the purpose of removal under the Act as soon as reasonably practicable (removal purpose) –

   a.from the time the applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia, being at least from 8 November 2019: ss 198AD(2), 198AH(1)-(1A) Migration Act 1958 or in the alternative s 198(1A) of the Act; and

   b.from the time the applicant had made a written request to the Minister for removal, from 3 June 2020: s 198(1) Migration Act 1958.

   2.Each circumstance of the applicant either no longer needing to be in Australia  for the temporary purpose or the applicant having made a written request to be removed, triggered an obligation upon the respondents to remove the applicant as soon as reasonably practicable.

   3.It was a condition of the applicant being brought to Australia in its agreement with the agent of the first respondent, the Australian Border Force, that the applicant would be returned to Papua New Guinea when he no longer needed to be in Australia.

   4.The applicant has remained in detention since 30 October 2019, with the Respondent not making a decision on the Residence Determination recommendation made by the Department on 8 November 2019.

   5.From that date the applicant no longer needed to be in Australia for the temporary purpose of medical treatment because the holding of him in held detention was significantly inimical to his health, and in particular his condition of detention fatigue.

   6.The applicant’s detention is not authorised by law because the respondent has failed to undertake or carry into effect the removal purpose as soon as reasonably practicable since either 8 November 2019 or 3 June 2020.

   7.The Government of Papua New Guinea has indicated that the class of persons to whom the applicant belongs do not have an immediate right to enter Papua New Guinea.

   8.By refusing to admit the class of persons to whom the applicant belongs into PNG as of right, and through the imposition of an application process, PNG has accepted or indicated that Regional Processing has been completed.

   9.The power to enforce either of the Directions for removal of the applicant to a regional processing country is spent or otherwise an abuse of process, because the length of detention, and failure to remove the applicant when required, constitutes a threat to the applicant’s liberty, because of his being a medevac transferee.

   10.The purported Direction of the Respondent to remove the applicant to an alternative Regional Processing Country, Nauru, under the 25th March 2021 Direction is invalid because:

   a.Notwithstanding that the applicant and others affected by the Direction have been held in immigration for the purpose of removal to PNG, the Respondent failed to afford procedural fairness before making the Direction.

   b.It is Ultra Vires due to the failure to require the Removals Officer to consider Australia’s non-refoulement obligation with respect to the applicant in Nauru, prior to removal to Nauru.

   c.The Direction is legally unreasonable, since it could not reasonably be considered to be in the Public Interest as required under s.198AD(8) to make the s.198AD(5) direction because, the power was spent, or otherwise an abuse of power.

   d.Because the length of detention, and failure to remove the applicant when required, constitutes a threat to the applicant’s liberty, because of his being a medevac transferee.

   e.        By s.198AD1(10) the Direction is not a legislative instrument.

   f.By s.499 (2) the Direction must not be inconsistent with the Act and Regulations.

   g.The effect of the Direction is inconsistent with the Act and Regulations because it would inflict severe harm on the applicant and other members of the class of persons to whom the Direction would otherwise apply.

   h.The effect of the Direction is inconsistent with the Act and Regulations because it has the effect of breaching Australia’s international obligations with respect to the applicant and the class of persons to whom he belongs.

   (errors in original)

7. This matter was listed for a final hearing along with a number of other matters in the period 12-16 April 2021.  It was, however, not reached and, by agreement with the parties, it was decided that I would deal with it on a final basis on the papers.

8. In addition to the affidavit of the applicant’s solicitor annexing the amended application, I have before me the following evidence:

   (a)the applicant’s affidavits made on 9 December 2020, 9 December 2020 (refiled on 8 February 2021), 22 March 2021 and 11 April 2021;

   (b)the court book filed on 26 February 2021;

   (c)the affidavit of the applicant’s status resolution officer, Perpetua Senya, made on 12 April 2021;

   (d)the affidavit of Alana Sullivan made on 9 April 2021; and

   (e)a video deposition made by the applicant and his solicitor on 22 April 2021.

9. I have dealt with the application as amended with the exception of Ground 10.  Consistently with my decision in other matters raising that ground, I have declined to deal with it as it is an issue specifically being dealt with by the Federal Court in other proceedings.

   CONSIDERATION

10. I accept the applicant’s affidavit evidence that he made two requests to be returned to Papua New Guinea (PNG) on or about 18 November 2020 and 8 December 2020.  I also accept the applicant’s evidence that he does not consider that further medical treatment in Australia is required.  The applicant does not understand why he remains in detention. 

11. I accept from the court book and the affidavit of Ms Senya that the applicant is from Somalia and arrived in Australia at Darwin as an unauthorised maritime arrival on 11 November 2013.  He was lawfully detained as an unlawful non citizen and on 13 November 2013 he was transferred to the regional processing centre on Manus Island, PNG. 

12. On 4 April 2016, the PNG authorities recognised the applicant to be a refugee.[1] 

    [1] Court Book (CB) 59.5

13. On 24 October 2019, the applicant signed a document titled, “Agreement of medical transfer” addressed to the Australian Border Force by which the applicant acknowledged his consent to being taken to Australia for the temporary purpose of receiving medical treatment and then to be returned to PNG once he no longer needed to be in Australia for that treatment.[2]

    [2] CB 66

14. On 30 October 2019, the applicant was brought to Australia from PNG under either s 198B or s 198C of the Migration Act as a “relevant transitory person” for a temporary purpose with the approval of the Minister.

15. The temporary purpose specified in a notification issued under the now repealed s 198E was treatment for non-insulin dependent diabetes (or glucose intolerance), non alcoholic fatty liver disease, hypertension (suspected ischaemic heart disease) and a major depressive disorder and post traumatic stress disorder symptoms.

16. Upon arrival in Australia, the applicant was taken into detention under s 189(1) of the Migration Act as an unauthorised non citizen, as defined in s 14 of the Migration Act. It is common ground that the detention of the applicant is for the purpose of removal, not the provision of medical treatment. I accept from the affidavit of Ms Senya that the detention of the applicant has been and remains lawful.

17. I accept from the affidavit of Ms Senya and the applicant’s affidavit of 22 March 2021 that the applicant withdrew his requests for removal on 22 March 2021.

18. The only question, in my view, therefore, is whether the applicant still needs to be in Australia for the medical treatment he was brought here to receive. The question of whether the applicant no longer needs to be in Australia for the relevant temporary purpose is an objective one for the Court to decide. If the applicant no longer needs to be in Australia, a removal trigger is enlivened under s 198AD(2) of the Migration Act.

19. While the applicant believes that he no longer needs to be in Australia, that is likely to be reflective of his desire to be released from detention.  His own evidence is not reflective of a desire to return to PNG.  No definitive medical opinion is available to me.  The extensive medical evidence annexed to the affidavit of Ms Sullivan is in my view not conclusive.  Annexure AS-8 is a copy of a Medical Officer of the Commonwealth (MOC) report dated 20 March 2021.  The MOC opines that the applicant has completed the management of the specific medical purpose for which he was brought to Australia.  That opinion is limited to the applicant’s physical ailments and does not deal with his mental state.  A case review relating to the applicant made on 1 April 2021 discloses that the applicant has made repeated threats to self harm, which are being managed by IHMS[3] and that he attempted suicide on 21 January 2021 while in detention in Melbourne. 

    [3] International Health and Medical Services

20. On the material before me, I am unable to be satisfied that the three pre-conditions in s 198AH(1A) of the Migration Act are met and that the duty in s 198AD(2) is engaged. In the circumstances, the applicant is not entitled to relief (which in any event he is not seeking) to compel the respondents to return him to PNG or to transfer him to Nauru. I note in that regard, that the applicant is unwilling to be sent to Nauru and no longer wishes to return to PNG.

21. Should I be wrong in my finding at [20] above, I accept from the affidavit of Ms Sullivan that she has taken active steps to explore the possibility of returning the applicant to PNG, but that such return is not reasonably practicable. It does not follow, however, that s 198AG of the Migration Act has been engaged. There has been no specific refusal by the PNG authorities to accept the applicant. In the alternative, Ms Sullivan has explored the option of transferring the applicant to Nauru. That option remains open.

22. Because the applicant is being lawfully detained, and he needs to remain in Australia for treatment of his mental health conditions, he is not entitled to the relief sought in his application as amended.  It follows that the application should be dismissed.  I will so order.

23. I will hear the parties as to costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       11 August 2021

SCHEDULE OF PARTIES

SYG 2831 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS