FDT20 v Minister for Home Affairs

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FEDERAL CIRCUIT COURT OF AUSTRALIA

FDT20 v Minister for Home Affairs [2021] FCCA 711

File number(s): SYG 2849 of 2020
Judgment of: JUDGE DRIVER
Date of judgment: 2 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:

Commonwealth of Australia Constitution Act 1900 (Cth) s 51

Migration Act 1958 (Cth) ss 5, 46A, 54R, 189, 195A, 196, 197C, 198, 198AB, 198AD, 198AE, 198AF, 198AG, 198AH, 198B, 198C, 198E, 199, 200, 499

Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)

Migration Regulations 1994 (Cth)
Cases cited:

AJL20 v Commonwealth of Australia [2020] FCA 1305

Al-Kateb v Godwin(2004) 219 CLR 562

AOR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 958

AOU21 v Minister for Home Affairs [2021] FCAFC 60

Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486

Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1

Commonwealth of Australia v AJL20 [2021] HCA 21

MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180

NAES v Minister for Immigration and Multicultural Affairs [2003] FCA 2

NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 589

Plaintiff M96A/2016 v Commonwealth of Australia (2017) 261 CLR 582

Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
Number of paragraphs: 190
Date of last submission/s: 6 July 2021
Date of hearing: 12 April 2021
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, with Ms C Ernst
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

SYG 2849 of 2020
BETWEEN:

FDT20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA (and others named in the Schedule)
Third Respondent

ORDER MADE BY:

JUDGE DRIVER

DATE OF ORDER:

2 AUGUST 2021

THE COURT ORDERS THAT:

1.The application filed on 15 December 2020 (including the Application in a Case filed on 10 March 2021) is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

  1. This is the first of 10 reserved judgments in so called “medevac cases” heard by me in April 2021.  The cases listed for hearing were selected by the applicants’ solicitors.  I reserved judgment in this and five other matters after hearing.  Four additional cases are being dealt with on the papers by agreement with the parties.  This judgment is intended to deal with the relevant legal principles for the purposes of all of the reserved judgments.

  2. By application filed on…

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Details
Case
[2021] FCCA 711
Decision Date

CaseChat Overview and Summary

This case concerned an application brought by FDT20 against the Minister for Home Affairs. The applicant alleged unlawful detention, arguing that the Minister's actions constituted a threat to their liberty and placed their lives at risk. Specifically, the applicant contended that they were being detained in "held detention" and that requests for removal from Australia to escape this threat were being ignored. The applicant, who included genocide survivors and victims of severe persecution, argued that their detention was irremediable and that the harm caused by the threat to their liberty far outweighed any potential medical treatment. The matter was heard by Driver J in the Federal Court of Australia.

The central legal issues before the Court were whether the Minister had the power to detain the applicant under section 198AD of the *Migration Act 1958* (Cth) in the absence of a designated receiving country, and whether the detention was rendered unlawful by the Minister's alleged threat to liberty and refusal to facilitate removal. The applicant also raised arguments concerning the constitutional purpose of detention provisions, suggesting that detention powers were intended solely for the purpose of removal, and that where removal was not feasible, the basis for detention ceased to exist. The Court was also required to consider the implications of recent decisions from the Full Federal Court in *AOU21 v Minister for Home Affairs* and the High Court in *Commonwealth of Australia v AJL20* regarding the criteria for removal and the interplay between different detention obligations.

Driver J's reasoning focused on the statutory requirements for detention and removal. The applicant argued that the power to detain for the purpose of removal under s 198AD necessitates the existence of a receiving country. Absent a legitimate destination country, the applicant contended, there is no power to remove and consequently no power to detain under this provision. The Court considered the applicant's submission that the Minister might seek to rely on sections 189 and 196, but that this would misinterpret the constitutional purpose of these provisions, which are linked to the ultimate purpose of removal. The Court also noted the respondents' submission that if removal had not been effected as soon as reasonably practicable, the only available remedy would be an order for mandamus. The decision in *AOU21* was highlighted, particularly its findings that the criteria for removal under s 198AD(2) are objective and determinable by a court, that only one removal obligation can be operative at a time, and that the obligation to remove is subject to a non-refoulement assessment.

The Court noted that the applicant had requested removal to PNG, and that following this request, a review was initiated to assess whether the temporary purpose for which the applicant was brought to Australia had been resolved. Communications indicated that for several individuals, including the applicant, the temporary medical purpose had been resolved, suggesting that section 198AD might apply and a duty to progress their return to PNG might exist. A Medical Officer of the Commonwealth subsequently determined that the applicant had completed the management of the specific temporary medical purpose for which they were brought to Australia.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the alternative, if the Court finds that removal has not been effected as soon reasonably practicable, the respondents submit that the only available remedy is the order for mandamus (sought in Order 2 of FDT20’s Application in a Case).The decision in AOU21Applicant’s contentions The major findings of the Full Federal Court in AOU21 v Minister for Home Affairs[52] are: (a)that the criteria for establishing whether the duty to remove arises under s.198AD(2) as a result of the engagement of s.198AH(1) through the satisfaction of the criteria in s.198AH(1A) are objective and to be determined by a Court[53];(b)as between the duties under s.198(1) or s.198AD, only one obligation can be operative at any time[54];(c)the obligation to remove under s.198AD(2) is subject to a requirement to undertake a non-refoulement assessment[55]. [52] [2021] FCAFC 60[53] AOU21 at [115], [144][54] AOU21 at [35], [144][55] At [54], see also [117] In AOU21 the Full Federal Court stated[56]: … In those circumstances, the submissions made on his behalf quite properly pointed to Australia’s international obligations, and quite properly submitted an assessment would be required before removal. Also quite properly, the Commonwealth accepted that was likely to be the case. It did so on the express basis of the power in s 198AE of the Act.… In terms, s 197C does not apply to the duty under s 198AD(2).[56] At [54] and [116] The decision was followed by Kerr J in MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[57], who stated … I accept the submission advanced by the Applicant that he is entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru.Those obligations extend to Nauru as they do to any other nation. …… That a statutory mechanism has not been provided for does not mean the right to have such a claim determined does not exist.[57] [2021] FCA 442 at [65]-[66]Obligation to remove Apparently as a result of the applicant’s request for removal to PNG, on 23 February 2021, Sharon Edgerton, Director of Regional Resettlement, requested a Client Brief with respect to the applicant[58]. [58] Sullivan Affidavit, Annexure AS6 On 8 March 2021, Ms Sullivan requested a referral of the applicant and other priority cases to Offshore Operations for Temporary (Medical) Purpose Assessment by a Medical Officer of the Commonwealth[59]. [59] Sullivan Affidavit, Annexure AS7 The communication referred to IHMS[60] advice that the temporary purpose for the applicant had been resolved[61]: The other six individuals – according to recent advice from IHMS the temporary purpose for which they were transferred to Australia has been resolved. Accordingly it would appear that s198AD may apply and there is a duty to progress their return to PNG. [60] International Health and Medical Services[61] Sullivan Affidavit, Annexure AS7 at page 49 The Medical Officer of the Commonwealth made a determination on 17 March 2021 that[62]: Having reviewed all relevant supporting information, I am of opinion that from a clinical perspective [the applicant] has completed management of the specific temporary (medical) purpose for which he was brought to Australia. [62] Sullivan Affidavit, Annexure AS9

Ratio Decidendi

Legal Principle Established

I heard oral evidence from the applicant and argument from the parties’ representatives at the trial on 12 April 2021. I also received post hearing written submissions from both the applicant and the respondents, including on the decision of the Full Federal Court in AOU21 v Minister for Home Affairs[7] and the decision of the High Court in Commonwealth of Australia v AJL20.[8]CONSIDERATION[7] [2021] FCAFC 60[8] [2021] HCA 21Applicant’s contentions The applicant’s submissions deal with issues that are in common with numerous other matters raising the same issues. The characteristics of unlawful detention are said to be irremediable. Differential characteristics of individual cases or groups of cases also are said to make the detention unlawful and irremediable. These common submissions aim to distinguish the common matters for submission in all cases, and differential characteristics for submission in the individual cases. Persons from each regional processing centre of PNG and Nauru are made up of refugees and asylum seekers. In each case the respondents’ Department made referrals to the relevant Minister for consideration of community detention by which the applicants would have maintained their liberty. Instead the Minister rejected each of the referrals and restrained them in “held detention”. The “threat” by the Minister is said to have been that if the applicants wanted medical treatment they had to remain imprisoned. That is said to remain the threat. When the applicants requested to be removed from Australia to escape this threat, the Minister is said to have ignored those requests and refused to let them go. The harm to the applicants through the threat to their liberty is said to be severe and threatens their lives, and far outweighs any potential medical treatment. The applicants include genocide survivors and victims of severe persecution. They complain that they are being compelled to return to their countries of origin due to having their liberty threatened by Australia and their lives placed at risk thereby. Necessity for a receiving country The power to detain for the purpose of removal under s 198AD is said to require there to be a receiving country, removal to which remains suspended while the applicant needs to be in Australia for a temporary purpose. Otherwise there would be no purpose for the holding of the applicant in detention, since it would not be possible to make steps towards removal under s 198AD. The power to detain for the purpose of prospective removal under s 198AD(2) is said to be dependent on there being a regional processing country, which is able to receive the applicant (see for example ss 198AF and 198AG). Absent a legitimate destination country, there is said to be no power to remove under s 198AD and it confers no power of detention. The applicants foreshadow that the Minister may then seek to fall back on ss 189 and 196, but that would be to misunderstand the Constitutional purposes of those provisions, which are to allow for detention for the ultimate purpose of removal. Where removal is never going to be within the power of the Minister, that cannot be the purpose of the detention.