FDD20 v Minister for Home Affairs

In FDD20 v Minister for Home Affairs, Driver J of the Federal Court of Australia considered an application by a Somali national, who had arrived in Australia as an unauthorised maritime arrival in 2013 and was subsequently recognised as a refugee by Papua New Guinea (PNG) authorities in 2016. The applicant was brought to Australia in October 2019 under provisions for "relevant transitory persons" for the temporary purpose of receiving medical treatment for several physical and mental health conditions. Upon arrival, he was detained as an unlawful non-citizen, with his detention being for the purpose of removal rather than ongoing medical treatment.

The central legal issue before the Court was whether the applicant no longer needed to be in Australia for the temporary medical treatment for which he was brought to the country. This question was critical because if the applicant no longer required treatment in Australia, a removal trigger would be enlivened under section 198AD(2) of the Migration Act 1958 (Cth). The applicant had made requests to be returned to PNG and stated he did not require further medical treatment in Australia, but the Court noted this might reflect a desire to be released from detention rather than a genuine wish to return to PNG.

Driver J accepted the applicant's affidavit evidence that he had made requests for return to PNG and did not consider further medical treatment in Australia to be required. However, the Court found that the applicant's detention had remained lawful. The Court noted that the question of whether the applicant no longer needed to be in Australia for the relevant temporary purpose was an objective one for the Court to decide. While the applicant believed he no longer needed treatment, the available medical evidence was not conclusive. A Medical Officer of the Commonwealth report suggested the applicant had completed the management of his physical ailments, but this did not address his mental state, and evidence indicated the applicant had made repeated threats of self-harm and had previously attempted suicide. The Court declined to deal with one ground of the application, as it was being addressed in separate Federal Court proceedings.