FDT20 v Minister for Home Affairs
[2021] FCCA 711
•2 August 2021
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
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.
By 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. He seeks orders that he be released from detention forthwith plus costs.
There is one particularised ground in the application as follows:
1The detention is unlawful because the [Respondents are] 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 written requests for removal to Papua New Guinea on 15th November 2020 and 10th December 2020 by depositing in the ABF drop box in the detention facility.
ii.The [Respondents] are unable to remove the applicant to PNG.
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.195 Ministerial Intervention guidelines.
The applicant filed an Application in a Case on 10 March 2021. In that application, the applicant seeks a writ of habeas corpus requiring his immediate release from immigration detention and a writ of mandamus compelling the respondents to remove him to a regional processing country. The grounds of that application 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 first applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia when it was indicated by his Counsellor he was told that his condition could not be helped by at least 15th September 2020 when he was designated by QPASTT as being at high risk of harm due to being in detention and needing to be out of held detention.
b.from the time the applicant had made oral requests to the Minister for his return to PNG, ie from 2019, and from the time he made a written request for removal on 15th November 2020: s 198(1) Migration Act 1958.
2. Each circumstance of the first 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 PNG when he no longer needed to be in Australia.
4. The applicant has remained in detention since August 2019.
5. The applicant’s detention is not authorised by law because the [respondents have] failed to undertake or carry into effect the removal purpose as soon as reasonably practicable.
A further Application in a Case was handed up in court at the trial of this matter on 12 April 2021.[1] In that application, the applicant purportedly sought the following orders:
1.An injunction restraining the Removals Officer from removing the applicant to Nauru.
2.A declaration that the s.198AD(5) Direction by the Minister for removals officers to remove the applicant to Nauru, is spent.
3.A declaration that the threatened application by a Removals Officer of the s.198AD(2) Direction to remove the applicant to Nauru is an abuse of process.[2]
4.A declaration that the continued detention of the applicant for removal to a regional processing country threatens the liberty of the applicant contrary to the national interest and purposes of the Migration Act 1958 including as specified by s.198AB of the Migration Act 1958.
[1] That application was filed on the same day in matter SYG 2936 of 2020 (FHE20)
[2] Direction to remove the applicant to Nauru
The grounds relied upon in that application are:
1.In determining whether the applicant “needs to be in Australia for the temporary purpose” as defined by s.198AD and s.198AH(1A) the Officer’s determination that the applicant no longer needed to be in Australia for the temporary purpose and hence is liable for planned removal on 15th April 2021 under the s.198AD(2) power, was affected by jurisdictional error:
Particulars
i.The Officer did not consider or weigh the applicant’s circumstances, intention to engage in protest through self-harm, and likely medical needs, in the destination country, Nauru.
ii.The question under s.198AH(1A) of whether the applicant “needs” to be in Australia has been impermissibly confined and not considered objectively.
iii.“The question of whether the applicant no longer needed to be in Australia for the temporary purpose is an objective one which falls to be answered by a Court (Plaintiff M96A/2016 at [42] per Gageler J), not by the ‘opinion, satisfaction or belief’ of a departmental officer: (Plaintiff M96A/2016 at [38])”.
iv.In determining whether the applicant needed to be in Australia for the temporary purpose and hence was liable to removal under s.198AD(2), the Officer was obligated to but failed to consider the applicant’s non-refoulement claims.
2.The s.198AD(5) Direction making Nauru the applicant’s relevant regional processing country, is spent, and its application to the applicant would be an abuse of process.
Particulars
i.The applicant has been declared a refugee.
ii.There is no resettlement process either in Nauru or in any third country.
iii.The removal of the applicant to Nauru would threaten his life and liberty
iv.The holding of the Applicant in immigration detention by the [Respondents] for removal to Nauru is an abuse of process which threatens the Applicant’s liberty and life.
v.The threat to the liberty and life of the applicant is contrary to the purposes of the Migration Act 1958 for the purposes of the intended application of s.198AD(5) direction.
vii.The national interest criteria for Regional Processing under s.198AB of the Migration Act 1958 is based on the protection of the applicant as a refugee from being subjected to a threat to his life or liberty.
viii.The continued application of the s.198AD(5) direction to the applicant requires him to be kept in detention and thereby violates the purposes of the Migration Act 1958 and in particular the purposes of implementation of the obligation under Article 26 Refugees Convention to protect the applicant from threats to his liberty and life.
3.The Removals Officer is required, but has failed, to consider the applicant’s non-refoulement claims with respect to Nauru.
Particulars
i. The process of removal under s.198AD constitutes an expulsion of a refugee to a country where his life and liberty would be threatened.
ii. S.197C of the Migration Act 1958 has no application to an involuntary removal under s.198AD.
iii. The applicant has non-refoulement claims with respect to Nauru.
iv. The Respondent has not undertaken a consideration of the Applicant’s non-refoulement claims with respect to Nauru.
The second Application in a Case was not filed in any matter other than FHE20 and, at the trial, counsel for the Minister objected to any amendment of applications in the reserved proceedings on the basis that the Minister had been taken by surprise and was not able to deal with it. Further, I was told that the same issue had been raised in the Federal Court and was to be dealt with by either Flick J or Katzmann J.[3] In addition, in this matter at the time of the trial, there was no longer any removal of the applicant to Nauru in prospect.
[3] AFX21 v Minister for Home Affairs NSD 52 of 2021
In view of these circumstances, I declined to deal in these proceedings with the unfiled Application in a Case. In addition, this matter was heard on a final basis and hence the earlier applications for interlocutory relief, which had been filed, were subsumed into the applications for final relief.
The present applicant arrived in Australia by boat as an unauthorised maritime arrival on 24 July 2013. He was taken to Papua New Guinea (PNG) under s 198AD of the Migration Act on 19 December 2013.
The applicant claimed to be a refugee from Iran, but his claim for protection in PNG was not accepted.
On 18 June 2019, the applicant was brought to Australia under s 198B of the Migration Act for medical treatment for severe psoriasis and a major depressive disorder.
On 15 November 2020, the applicant lodged a written request to be returned to PNG. He made a second request on or about 11 December 2020.
On 22 February 2021, one of the respondents’ officers confirmed the applicant’s request orally with him.
While at the time of the trial of the matter, the applicant was being monitored for various health issues, a medical officer of the Commonwealth in an opinion dated 17 March 2021 stated that the specific temporary purpose for which the applicant was brought to Australia had been completed[4].
[4] Affidavit of Wayne Ruttley made on 8 April 2021 (Ruttley Affidavit), Annexure WR-6
The applicant is not an Australian citizen, he does not hold a current visa, he is regarded as an unlawful non citizen and he is not an Aboriginal or Torres Strait Islander. He is purportedly detained under s 189 of the Migration Act.
In addition to the court book filed on 25 February 2021, I have before me as evidence the following affidavits:
(a)an affidavit made by the applicant on 11 December 2020 in which he refers to his request to be returned to PNG and his subsequent further requests to the same effect;
(b)an affidavit by the applicant made on 17 December 2020 in which he states that he does not wish to be moved from his present Brisbane immigration transit accommodation to the Yongah Hill Detention Centre;
(c)an affidavit by the applicant made on 2 March 2021 annexing medical reports, in particular relating to his psychological condition;
(d)an affidavit by the applicant made on 10 April 2021 in which he refers to harm suffered whilst on Manus Island in PNG.[5] In that affidavit the applicant disputes that his medical treatment is finished and claims he suffers from ongoing conditions which need attention. The applicant also refers to the possibility of him being resettled in Canada, which opportunity appears now to have closed;
(e)affidavits by the applicant made on 29 May 2021 and 12 June 2021, after the hearing of this matter, in which he states, in effect, that he declines any further medical treatment;[6]
(f)the affidavit by Wayne Ruttley made on 8 April 2021 detailing the applicant’s immigration and detention history; and
(g)the affidavit by Alana Sullivan made on 9 April 2021 (Sullivan Affidavit) in which she deposes as to the steps taken to remove the applicant to PNG.
[5] In particular, having his throat slit, his skin problems, his detention in Australia and his other medical conditions
[6] An affidavit was filed on 15 June 2021 in which the applicant complains about various matters, including his wait for this judgment
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 21
Applicant’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.
The Minister may pursue third country resettlement options, but the holding of some of the applicants in detention is said to be inimical to that purpose, and in any case it is not within the power of the Minister to either make that happen, or remove the applicants to those countries. The applicants contend consequently, that it does not confer a purpose, and hence a power, of detention.
There is said to be no purpose of detention. The detention is said to be unlawful. The writs of habeas corpus are said to be justified and required to re-establish the rule of law after an extensive and significantly harmful period or consecutive periods of unlawful detention to which the applicants have all been subjected, both in Australia, cumulatively on top of that which was inflicted in PNG and/or Nauru.
Common issues on detention
The applicants in numerous matters before the Court contend that there is no lawful purpose to authorise the past and ongoing detention for the purpose of removal to a regional processing centre, and hence, that writs of habeas corpus are required.
They allege that the power to remove the applicant to PNG or Nauru has been spent or otherwise is an abuse of process. This is said to be a result of the completion of regional processing. It is also said to be a result of the unreasonable length of combined periods of detention to which the applicants have been subjected throughout the course of regional processing from 2013, and having regard to the applicants’ medical conditions and needs which cannot be met in the regional processing centres.
The respondents’ failure to remove the applicants to the regional processing centres after their requests for removal, in one case SYG 81 of 2021, dating back to 2019, is said to be an abuse of process by which the power to remove the applicants to a regional processing country has been spent or otherwise exhausted.
The applicants contend that the requirement to remove the applicants to the regional processing centres under s 198AD(2) was also engaged upon the respondents’ failure make residence determinations as recommended by the Department, due to the harm of long term detention terminating the need to be in Australia for the temporary purpose.
The length of detention is said to be beyond that of temporary purpose and constitutes abuse of process and a spent and exhausted power of detention.
The applicants submit that holding of the applicants in immigration detention for the purpose of removal to a regional processing centre while in Australia for a temporary purpose which has been spent is otherwise an abuse of process due to the unreasonable delay in providing medical treatment, the failure to provide medical treatment, the unreasonable length of detention, and the failure to take any steps to remove the applicants to the regional processing centres.
Papua New Guinea
Effect of a request for removal
Notwithstanding the Migration Act requiring immediate steps to be taken for removal of those persons who made written requests for removal to PNG, the applicants complain that the Minister has taken no steps towards removal, and hence the detention is unlawful. They contend that the writs of habeas corpus must therefore issue to vindicate and re-establish the rule of law.
The applicants submit that it must be clearly understood that a s 198(1) written request for removal to PNG cannot be used as a justifying power for removal to a different regional processing centre (Nauru) because s 198(1) is limited by the condition of the voluntariness of the request, including the destination country.
The Minister must in every case identify a valid source of power for removal, including future removal, in order to seek to have a purpose for present detention, and a s 198(1) request for removal to PNG cannot be a source of that power where the Minister intends instead to have the person in detention to make them available to remove at some stage in the future to Nauru under s 198AD(2).
The applicants contend that, therefore, any power for future removal, which must provide the Constitutional purpose for detention, must be sourced in the involuntary removal power under s 198AD(2) when the person no longer needs to be in Australia.
All the PNG cohort are now under an Instrument made on 25 March 2021[9] (Instrument) purportedly liable to removal to Nauru when they no longer need to be in Australia under ss 198AH(1A) and 198AD. That instrument is under challenge in NSD 52 of 2021.[10]
[9] The Instrument is incorrectly dated 23 March 2021; see Sullivan Affidavit at [21] and Annexure AS-11
[10] AFX21 v Minister for Home Affairs
The Instrument purporting to make the PNG cohort liable to removal to Nauru, and hence to provide a purpose for detention thereby, is said to be invalid due to breach of procedural fairness obligations, ultra vires for failure to require consideration of non‑refoulement obligations, and ultra vires for being a spent and exhausted power, the purported exercise of which is an abuse of process.
Absent a valid direction for the taking of the PNG cohort to Nauru, there is said to be no power to hold the person in detention for removal to Nauru, and the detention must be unlawful.
PNG asylum seekers
PNG does not accept a right of return of asylum seekers. The applicants submit that consequently the previous Instrument of 15 July 2014 under which those applicants have been detained in Australia for the purpose of removal to PNG has been inapplicable from the moment that cohort arrived in Australia. The application in SYG 2849 of 2020 is an example of such a case.
The applicants contend that this cohort of persons has been consequently detained without purpose from their date of arrival to Australia, the Minister knowing that they cannot be returned to PNG, whether voluntarily under s 198(1) pursuant to a request for removal there, or involuntarily under s 198AD(2) because they no longer need to be in Australia for the temporary purpose.
The applicants submit that the requirement for natural justice is all the more critical for asylum seekers because in addition to the well-founded fear of persecution of refugees and asylum seekers on account of being refugees and asylum seekers, there is no provision in Nauru law for permanent resettlement in Nauru, all the more so for refugees. There is, rather, a power of removal to the asylum seekers’ home countries, and yet no process for determination of non‑refoulement obligations.
The applicants contend that in effect what would be achieved by “warehousing” the asylum seekers in Nauru is either:
(a)a process by which responsibility for refoulement is offshored to Nauru; or
(b)the imposition of conditions of life so dire as to force the asylum seekers to return to their countries of origin.
The applicants contend that that would be a breach of the essence of the Refugees Convention which takes into account whether a person is “unwilling” to return to their country of origin, due to a well-founded fear of persecution. By sending them to Nauru the Minister would be forcing them to request removal to their country of origin, and thereby circumventing the obligations in the Refugees Convention to consider their non-refoulement claims to have a well-founded fear of persecution.
That result is said to be contrary to the purposes of the Migration Act and the Migration Regulations 1994 (Cth) (Regulations), and hence the Instrument must be invalid, by s 499(2) of the Migration Act, having regard to its effect on asylum seekers.
The “Instrument of designation of the Independent State of Papua New Guinea as a regional processing country under subsection 198AB(1) of the Migration Act 1958”[11]; and the “Instrument of designation of the Republic of Nauru as a regional processing country under subsection 198AB(1) of the Migration Act 1958”[12] (Instruments of Designation), both contain the following note (emphasis in original):
NOTE: Subsection 198AB(1) of the Act provides that the Minister may, by legislative instrument, designate that a country is a regional processing country. Subsection 198AB(2) of the Act provides that the only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be a regional processing country. Subsection 198AB(3) of the Act, provides that in considering the national interest for the purposes of subsection (2), the Minister: (a) must have regard to whether or not the country has given Australia any assurances to the effect that: (i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and (ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol and: (b) may have regard to any other matter, which in the opinion of the Minister, relates to the national interest.
[11]Federal Register of Legislative Instruments F2012L02003:
[12]Federal Register of Legislative Instruments F2012L01851:
Some of the applicants have been in Australia for as long as 28 months. For asylum seekers from PNG to be transferred to Nauru there would have to be a process for a Refugees Convention claims assessment. There is nothing in the correspondence with the Government of Nauru to indicate that this has occurred.
Additionally the apparent existence of the sunset clause on the Instruments of Designation of the regional processing centres on 1 April 2023 is said to indicate that regional processing was intended to be completed by that date. It would be astonishing if the Minister could simply delay the process by initiating again a complete regional process for an asylum seeker by simply warehousing them in the other regional processing centre, Nauru.
PNG refugees
The current information as per communications from the Chief Migration Officer and Acting Deputy Chief Migration Officer of PNG to the First Secretary is that each application for return will be assessed on a case by case basis, that there is no immediate right of entry for refugees, and that returns are indefinitely delayed due to the COVID-19 emergency.
There is evidence that s 198AG of the Migration Act has in part been engaged as at 20 March 2021 because the PNG Government has advised the Australian Government that medevac transferees do not have a freestanding right to return there. Rather, return is subject to an individual application and consideration process. Further, even such application process is subject to the general indefinite suspension of returns until further notice due to the COVID‑19 emergency.
PNG does not accept the return of the medevac refugees as a right. What it offers is a process to engage in consideration of any application for return there. The applicants do not have a right under PNG law to return there, nor do the respondents have a power to send the applicants there, absent an agreement to receive them, in each individual case.
In short, the applicants contend that PNG considers, and indicates, that regional processing for the refugees, is completed.
Operation of s 198AG
There is said to be evidence that s 198AG of the Migration Act has in part been engaged. As at 20 March 2021 the PNG Government has advised the Australian Government that medevac transferees do not have a freestanding right to return there, but that rather return is subject to an individual application process. Further, even such application process is subject to the general indefinite suspension of returns until further notice due to the COVID-19 emergency.
On 25 February 2021, Stanis Hulahau, the Chief Migration Officer for PNG wrote to Alana Sullivan, First Assistant Secretary, Regional Processing and Resettlement Taskforce, National Resilience and Cyber Security Group, Department of Home Affairs, advising that:
I intend to engage with you further on the rest of the cohort who have been transferred to Australia for medical treatment. Until ICA has had an opportunity to review this group and brief the Government accordingly, we must consider all other requests on a case-by-case basis. Please ensure that all requests include case history since travel to Australia, any criminal charges brought against the POI and if they have departed Australia at any time since their transfer from PNG.
The applicants assert that on 20 March 2021 Winis Map, Acting Deputy Chief Migration Officer, Borders Division, PNG Immigration and Citizenship Authority wrote to the First Assistant Secretary (for the respondents) advising that the return of the first voluntary PNG medevac returnee scheduled for transfer to PNG was to be delayed indefinitely until further notice due to the COVID-19 emergency.
As noted above, the applicants contend that PNG considers, accepts, and indicates, that regional processing is completed.
The applicants further submit that the determination of the national interest is not at large or discretionary in the present case. An objective criterion has been provided under s 198AB(3) that the national interest criterion for the designation of regional processing countries is the assurance by those countries not to refoule a refugee to a country where their liberty would be threatened on account of their membership of a particular social group.
It is said to be indicative that the detention of the applicants is not in the national interest, that Australia itself has threatened the liberty, and through that, the life, of the applicants, through the imposition of long-term mandatory detention on account being medevac transferees remaining in detention who had been brought under s 198B or the now repealed s 198E of the Migration Act.
This is said to be the very harm that the regional processing arrangements under the Migration Act were intended to protect the applicants from.
The objective criteria for the determination of whether the process has been an abuse of process, is said to be whether the applicants’ liberty has been threatened on account of their being medevac detainees. Clearly that has occurred, in the applicants’ submission.
The applicants submit that in consequence the power of removal to a regional processing country in general, or, now, to Nauru in particular, carrying with it the power to detain the applicants for that purpose is an abuse of process, and is in any case spent.
The applicants have already been regionally processed and cannot be detained for that purpose.
Detention illegal
The applicants contend that the holding of the applicants in detention was to be available for removal when the obligation to remove is engaged. However the purpose of removal for regional processing has been spent and become an abuse of process.
PNG has advised that the class of persons to whom the applicant belongs do not have an intrinsic right to return there and in any case returns are indefinitely delayed due to the COVID‑19 emergency.
The respondents purport to hold the applicants in detention for removal to Nauru for another round of regional processing, however the instrument is said to be invalid.
The applicants submit that moreover, the power is spent and an abuse of process as the applicant has already been regionally processed in PNG and finds himself held in Australian immigration detention through no fault of his own, because of the Minister’s failure to remove him to PNG when required under s 198AD(2) and when requested under s 198(1).
The applicants submit that the holding of each applicant in “held detention” for an “unreasonable length of time” has caused severe harm, hence it cannot be in the public interest or in accordance with the purposes of the Migration Act and Regulations to inflict yet another round of regional processing on the applicants.
Should it be found that the Instrument is invalid, then the applicants cannot be held in detention for the purpose of removal to Nauru.
Further, the respondents failed to take steps to remove the applicants to PNG when it may have been available to remove them there.
Instead the respondents “warehoused” the applicant with a large number of others, in immigration detention in Australia, notwithstanding the requests and obligations to remove them from Australia in order to end the detention. The respondents thereby prevented the applicants from having access to appropriate medical care, and inflicted serious harm, resulting in serious mental and physical harm.
The applicants contend that, by continuing to have the applicants in prolonged detention the respondents have contributed to the applicants’ attempts to commit suicide and suicidal ideation, that has been triggered by the indefinite held detention. It is submitted the respondents are aware of the applicants’ mental health diagnoses of detention fatigue yet failed to remedy that by releasing the applicants from held detention.
The triggering of the obligations of removal as soon as reasonable practicable in ss 198AD(2) or 198(1) meant that for detention to remain for the purpose of removal, removal must have been pursued or undertaken as soon as reasonably practicable from the time of the trigger[13].
[13] AJL20 v Commonwealth of Australia [2020] FCA 1305 at [89]
The Court is to make an objective assessment of all relevant circumstances including the steps taken in pursuance of removal, and those steps which were reasonably practicable but which were not taken.
It is submitted that the Minister has taken no steps to remove the applicants to PNG. Absent any justification for this inaction, the failure to take any steps is a proof that the removal of the applicants from Australia has not been undertaken or carried into effect and that this has entailed a departure from the purpose of detention.
There is said to be no evidence of any administrative procedure for either the processing of requests to be removed, or the assessment of continued need to be in Australia for the temporary purpose.
There is no reference in the materials provided of the content of the “RPC return policy”. The inference to be drawn is said to be that the regional processing centre policy was not responsive to, and the Department otherwise disregarded its obligations under, ss 198AD(2) and 198(1) to remove the applicant as soon as reasonably practicable.
The evidence in the present case is said to be that as late as the case review[14] the Department regarded the applicant’s continuing detention to be appropriate as, in the view of the Minister, under s 196(1) of the Migration Act, an unlawful non-citizen detained under s 189 must remain in immigration detention until they depart from Australia or are granted a visa[15].
[14] On 24 February 2021; there is a more recent case review
[15] See general case reviews
The applicants submit that this fails to appreciate the purposive nature of and the resulting temporal limits on immigration detention. The Department is said to be wrong to understand that the only time limit on the detention power is that provided by s 196. It is said to be apparent from the High Court’s reference to s 196 in Plaintiff M96A/2016 v Commonwealth of Australia[16] that this limit should be read as referring to lawful detention only, ie detention which is compliant with the limits on detention the High Court describes in Plaintiff M96A/2016[17]:
As has been reiterated on a number of occasions in this Court, the majority in Chu Kheng Lim v Minister for Immigration said that laws with respect to aliens within s 51(xix) of the Constitution, which authorise or require the Executive to detain non-citizens in custody, will not contravene Ch III of the Constitution if, and only if, "the detention which they require and authorize is limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered". This requires two matters to be considered. First, it requires the purpose of the detention to be identified. Secondly, it requires consideration of the time necessarily involved in the particular case to deport the non-citizen or to receive, investigate, consider, and determine an application for permission to remain in Australia.
(footnotes omitted)
[16] (2017) 261 CLR 582 at [19]
[17] At [21]
In Chu Kheng Lim v Minister for Immigration [18] Brennan, Deane and Dawson JJ stated:
…it always lies within the power of a designated person to bring his or her detention in custody to an end by requesting to be removed from Australia. Once such a request has been made, further detention in custody is authorized … only for the limited period involved, in the circumstances of a particular case, in complying with the statutory requirement of removal "as soon as practicable".
[18] (1992) 176 CLR 1 at [34]
The applicants are not prisoners, they are immigration detainees. The essence of being an immigration detainee is that the purpose of detention is ultimately to be available for removal. But if the Minister does not give effect to that removal when lawfully required to do so, including by the applicant’s request or because of the disproportionality of harm being such that the applicant no longer needed to be in Australia for medical treatment, then the applicant is not an immigration detainee, but rather is a prisoner, and that too without conviction.
To be a prisoner is an outcome of a judicial process, a punishment from which there can be no escape. Moreover such is said to be also a clear violation of the Constitutional separation of powers.
Notwithstanding ss 189 and s 196 of the Migration Act it is by the judicial power that the person with the pseudonym AJL20 walked free in Australia despite being an unlawful non-citizen. This is because the remedy of habeas corpus is an expression of the judicial power which enables release by a Court of a person in unlawful detention notwithstanding s 196(3), and, more tellingly, confers protection from re-detention while such detention would be unlawful.
The applicants contend that the law having been broken through the failure to remove the applicants, it can only be vindicated and re-established by the termination of the obligation, and that can only be achieved through the release of the applicants from immigration detention. Once the applicants are released from immigration detention, the obligation to remove them from Australia under s 198AD(2) disappears.
The essence of the writ of habeas corpus is that a finding that a person is unlawfully detained is accompanied by an effective judicial remedy. The applicants submit that only the writ of habeas corpus would be an effective remedy for the unlawful imprisonment. Section 196(3) cannot be taken to authorise unlawful detention by the Commonwealth through the abolition of the writ of habeas corpus. Notwithstanding the Commonwealth’s designation of the applicants as unlawful non-citizens, the remedy lies for those applicants who are refugees as determined by a regional process incorporated into Australian law, and who were brought here to Australia by the Commonwealth and the Minister himself according to Australian law.
The detention of this applicant is said to be unlawful. There is said to be no purpose for the detention as there is no regional processing country to which the applicant can be sent without breaching Australia’s international obligations. The holding of the applicant in immigration detention for the purpose of removal to a regional processing centre is said to be a threat to the applicant’s liberty, and thereby his life. It is therefore, not in the national interest as defined by s 198AB(3)(a).
In his closing submissions, the solicitor for the applicant made the following points, most of which are uncontroversial:
(a)the High Court in AJL20 did not abolish the writ of habeas corpus for unlawful non citizens;
(b)habeas corpus remains available for unlawful non citizens who are detained for a punitive purpose, which cannot be lawful;
(c)to warrant habeas corpus, it is not enough that the purpose of the detention be prohibited: the purpose must also be found to be punitive as a jurisdictional fact; and
(d)aliens, including unlawful non citizens, must be free to depart Australia and detention to prevent departure would be punitive and unlawful.
The submissions include other propositions which are more controversial and which fail to engage with the reasoning of the majority in AJL20. I have considered but not reproduced those parts of the submissions.
Minister’s contentions
Relevant legislative provisions
The respondents’ submissions also traverse issues common to all medevac proceedings before the Court.
Section 198B of the Migration Act confers on an officer (within the meaning of s 5(1)) a power to, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. A transitory person relevantly includes a person who was taken to a regional processing country under s 198AD[19]. Section 198AD provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom s 198AD applies to a regional processing country.
[19] Migration Act, s 5(1)
Until their repeal on 5 December 2019,[20] ss 198C and 198E of the Migration Act provided for the transfer to Australia of transitory persons who, in the opinion of two or more treating doctors, needed to be in Australia for appropriate medical or psychiatric treatment or assessment (ss 198E(1) and (2)) and whose transfer to Australia was approved by the Minister under ss 198E(3) or 198F(4). If the Minister approved the transfer of a relevant transitory person to Australia under ss 198E or 198F, an officer was required, as soon as practicable, to bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment[21].
[20] By the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)
[21] Section 198C(2)
Where there are two or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, to the regional processing country specified in a direction[22]. There is presently a direction in force under s 198AD(5).
[22] Section 198AD(5)
Depending on the circumstances, an obligation to remove a transitory person who has asked in writing to be removed to a regional processing country would be sourced in one of two statutory provisions:
(a)if the person no longer needs to be in Australia for the temporary purpose – s 198AD(2) (which applies when a transitory person no longer needs to be in Australia for the temporary purpose, irrespective of whether the person has requested removal[23]); or
(b)if the person still needs to be in Australia for the temporary purpose – s 198(1)[24].
[23] See s 198AH(1A)
[24] Which applies only where s 198AD does not: s 198(11)
If a transitory person still needs to be in Australia for the temporary purpose, and has not requested removal in writing (or has made a request which is subsequently withdrawn), the obligation to remove the person is not enlivened. The general removal obligation under s 198(2) must be read as implicitly qualified by s 198(1A), which confirms that the removal obligation does not arise until (relevantly) a person no longer needs to be in Australia for the temporary purpose.
Duration of detention
The permissible duration of a transitory person’s detention under the Migration Act was addressed by the High Court in Plaintiff M96A/2016. That case established that, putting aside any written request for removal, a transitory person’s detention in Australia is authorised:
(a)initially, until he or she no longer needs to be in Australia for the temporary purpose for which he or she was brought here; and
(b)then, until he or she is in fact removed to a regional processing country, which is to occur as soon as reasonably practicable.
As to the first proposition, a transitory person brought to Australia for a temporary purpose must be removed from Australia only “after the person no longer needs to be in Australia for that [temporary] purpose”[25]. Removal “must occur as soon as reasonably practicable after the person no longer needs to be in Australia for the temporary purpose”[26]. The obligation to remove under s 198AD is “enliven[ed]” only once he or she no longer needs to be here[27]. “[D]etention in Australia will conclude if … [relevantly] the person no longer needs to be in Australia for the temporary purpose”[28]. Detention is for the purpose of removal, but that is to be effected “when preconditions are met, including where there is no longer a need for the transitory person to be in Australia for the temporary purpose”[29].
[25] Plaintiff M96A/2016 at 592 [18]
[26] Plaintiff M96A/2016 at 593 [20]
[27] Plaintiff M96A/2016 at 595 [26]
[28] Plaintiff M96A/2016 at 597 [32]
[29] Plaintiff M96A/2016 at 598 [33]
In Plaintiff M96A/2016, Gageler J held that the question whether a person no longer needs to be in Australia for the temporary purpose for which they were brought here is an objective matter to be determined by the Court[30]. The amended applications appear to proceed on this basis. The other members of the High Court did not find it necessary to determine whether this was so or whether, as the Commonwealth submitted, it was a matter for the satisfaction of an officer (which would be open to judicial review by the Court on the usual bases for review of a state of satisfaction)[31].
[30] At 598-600 [37]-[42]
[31] Plaintiff M96A/2016 at 597 [32]
The respondents maintain the submission put in Plaintiff M96A/2016 that the question whether a transitory person needs to be in Australia for the temporary purpose for which they were brought here and the reasonable practicability of removal are matters for the satisfaction of an officer. On that basis, they would not be matters for objective determination by this Court; rather, the satisfaction of the officers in question may be the subject of judicial review on the usual grounds by which a state of satisfaction may be reviewed. The respondents contend that it is not sufficient for an applicant to attempt to persuade the Court to reach a different conclusion on these questions than the officer in question.
Where a person no longer needs to be in Australia for the temporary purpose, he or she must be taken to a regional processing country as soon as reasonably practicable under s 198AD(2). Again, the High Court did not need to determine whether, as has been held by this Court in the context of s 198, reasonable practicability of removal is a matter for satisfaction of an officer, rather than objective determination by the Court. In any event, the High Court explained[32] that, by reason of s 196(1), the person is to be held in immigration detention “until the happening of one of four events: (i) removal from Australia under s 198 or s 199; (ii) an officer beginning the s 198AD(3) process for removal to a regional processing country; (iii) deportation under s 200; or (iv) the grant of a visa”. That is, “immigration detention must continue until the time of removal from Australia under s 198(1A) (s 196(1)(a)), or until the commencement of acts involving the process of removal from Australia to a regional processing country under s 198AD(3) (s 196(1)(aa))”[33].
[32] At 593 [19]
[33] Plaintiff M96A/2016 at 592 [18]
Detention authorised until removal in fact occurs
Further, in light of the reasoning in Plaintiff M96A/2016, the respondents submit that, even if an applicant has not been removed as soon as reasonably practicable, their detention is authorised until they are in fact removed. The reasons of the High Court are said to stand against any conclusion that a transitory person’s detention becomes unlawful simply because their removal is not effected as soon as reasonably practicable after the temporary purpose for which they were brought here no longer requires them to be in Australia. Insofar as any of the applicants in these proceedings rely on such a contention as a basis to render their present detention unlawful, it is said to be precluded by the reasoning in Plaintiff M96A/2016.
Put simply, until an applicant is in fact removed, the Migration Act requires that he or she be kept in detention. So much is clear from the following extract of the High Court’s reasons in Plaintiff M96A/2016[34], which pertained specifically to transitory persons:
In the case of a transitory person, therefore, the detention must continue until: (i) removal under s 198 (the first event); (ii) the beginning of the process of removal to a regional processing country under s 198AD (the second event); or (iii) the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted.
[34] At 593 [20]
While it may be accepted that Bromberg J concluded to the contrary in AJL20, the respondents submitted that that decision cannot stand with the reasoning of the High Court in Plaintiff M96A/2016. The Commonwealth’s appeal in AJL20 was removed into the High Court and was heard on 13 April 2021. On 23 June 2021 the High Court, by majority, overturned the decision of the Federal Court in AJL20. That decision is discussed further below but, essentially, the majority affirmed the respondents’ submission.
In AJL20, the Commonwealth expressly conceded (before the High Court) that the respondent had not been removed from Australia “as soon as reasonably practicable”[35], a concession that is not made in any of these reserved proceedings.
[35] See for example at [8]
The majority closely reviewed key authorities that the respondents have relied on to date in this litigation (for example, the respondents’ primary submissions had referred to the decision of NAES v Minister for Immigration and Multicultural Affairs[36] at [6]-[7]: in AJL20, the majority confirmed at [5] that the “approach taken by Beaumont J was correct 18 years ago and remains correct today”). Having done so, the majority stated at [35] that:
The combined effect of ss 189(1) and 196(1) is that a non-citizen can be lawfully within the Australian community only if he or she had been granted a visa. Otherwise, an unlawful non-citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198.
(footnote omitted)
[36] [2003] FCA 2
The AJL20 majority held at [45] that there was no need to read down either ss 189 or 196, and that any failure by the Executive to diligently perform the duties that give effect to the legitimate non-punitive purposes for which detention is authorised and required erases neither those duties nor the statutory duties they support: “[w]ere it otherwise, the supremacy of the Parliament over the Executive would be reversed and the rule of law subverted”.[37]
[37] At [48]
It was material to the AJL20 majority that the remedy of mandamus was available to compel the proper performance of the duties, despite the fact that “[n]ot surprisingly, perhaps, given that Syria was the likely destination for removal, at no stage did the respondent demand that the duty under s 198(6) be performed”.[38] As noted in the respondents’ primary submissions, few of the applicants in the present litigation sought mandamus to compel removal, all of the applicants in the present proceeding have also requested, and obtained, an undertaking from the respondents to the Court that they not be removed pending the delivery of judgment in the reserved proceedings (a matter that, as I noted during a directions hearing on 2 June 2021, has the effect, at least in the respondents’ submission, that removal is not presently reasonably practicable in any of the reserved proceedings).
[38] At [52]-[53]
The AJL20 majority accepted at [61] that “ss 189 and 196 of the Act require the segregation of unlawful non-citizens… Because the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise”. Further, the majority found at [68] that the primary judge had erred in reasoning that the fact that officers were distracted from their removal duty (in AJL20, because officers were concerned with Australia’s non-refoulement obligations) allowed a conclusion that some “unauthorised punitive purpose is being pursued”.
The respondents submit that AJL20 is not distinguishable merely because the obligations to remove in the present cases arise under s 198(1) or s 198AD(2) of the Migration Act. Those provisions, like s 198(6) at issue in AJL20, are “hedging duties”, the non-performance of which does not render detention unlawful.[39]
[39] AJL20 at [52]
Accordingly, the respondents submit that as long as an officer held the belief that the applicants were unlawful non-citizens at all relevant times (which has not been put in issue in any of the reserved proceedings), the effect of AJL20 is that the applicants’ detention remains lawful, even if the Court concludes that removal has not been pursued with due dispatch. Thus, none of the applicants in the reserved proceedings can succeed in their pleaded claims (except in relation to mandamus, assuming it is established that there has been a failure to perform the duty to remove).
Tellingly, few of the applicants in these cases seek mandamus to compel the Minister to perform the duty to remove them from Australia to a regional processing country (an exception being FDT20, who seeks an order to that effect in his Application in a Case filed on 10 March 2021). In any event, no occasion for mandamus is said to arise because the Minister has not failed, and is not refusing, to remove the applicants as soon as reasonably practicable.
Removal to another country is, necessarily, something which cannot be achieved by Australia acting unilaterally. The particular circumstances of the applicant, as well as willingness and ability of a regional processing country to receive the person, is a matter that will inform whether or not removal is reasonably practicable[40].
[40]Al-Kateb v Godwin(2004) 219 CLR 562 at [226]-[228]
Non-compellable powers
The respondents submit that, insofar as the applicants submit their detention is unlawful by reason of a failure by the Department to consider their request for ministerial intervention, that submission cannot be sustained. The powers under ss 46A and 195A are non-compellable (ss 46A(7) and 195A(4)) and may only be exercised by the Minister personally (ss 46A(3) and 195A(5)). Further, the internal departmental decision-making process that governs which cases are referred to a Minister is a non-statutory process that does not engage any statutory constraints on the exercise of the power conferred by ss 46A and 195A[41].
[41] Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at [54] (the Court)
Conditions of detention do not render it unlawful
Insofar as the applicants claim that the conditions of their detention render it unlawful, that is contradicted by well-established authority to the effect that the lawfulness of the detention of a non-citizen does not depend on the circumstances or conditions of the detention[42].
Individual cases
[42] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [21] (Gleeson CJ), at [53] (McHugh, Gummow and Heydon JJ); [176] (Hayne J) and [223] (Callinan J)
FDT20 v Minister for Home Affairs (SYG 2849 of 2020)
By his application for a constitutional writ, FDT20 seeks a declaration that his detention is unauthorised and an order for his release from detention[43]. He contends that his detention is unlawful on the footing that the respondents have not removed him to PNG as soon as reasonably practicable[44]. FDT20 has also filed an Application in a Case seeking the writ of habeas corpus and a writ of mandamus compelling the respondents to remove him to “the Regional Processing Country” (which, read in the context of Ground 3 of the Application in a Case, must be taken to be a reference to PNG).
[43] CB 3
[44] CB 3
On 7 June 2019, the Minister for Immigration approved FDT20’s transfer to Australia pursuant to the now repealed s 198E(3) of the Migration Act. Two treating doctors had identified FDT20 as a “relevant transitory person” within the meaning of s 198E(2). The treating doctors considered that it was necessary to transfer FDT20 to Australia by reason of his severe psoriasis (a skin condition)[45] and his psychiatric condition, which involved a severe depressive episode and features of agitation along with a history of severe self-harm including self-immolation attempts[46].
[45] CB 23-24
[46] CB 47
At some time between 15 November (when it was lodged) and 9 December 2020 (when it was brought to the attention of Mr Ruttley), and between 10 and 11 December 2020, FDT20 requested in writing to be sent back to PNG[47].
[47] CB 6; Ruttley Affidavit at [9]-[10]
The respondents accept that, from 9 December 2020 to 17 March 2021, they were under a duty to remove FDT20 as soon as reasonably practicable under s 198(1), owing to the applicant having made a written request. They submit the current source of the duty to remove, however, is s 198AD(2), since the applicant has, since 17 March 2021, no longer needed to be in Australia for the temporary purpose of receiving medical treatment[48]. In this respect, FDT20’s contention that the obligation to remove arises under both ss 198(1A) and 198AD(2) is incorrect[49]. It is clear from s 198(11) that ss 198 and 198AD do not apply concurrently.
[48] Ruttley Affidavit at [13], Annexure WR-6
[49] cf CB (Ground 1(iii) of the application)
The duty to remove under s 198AD(2) is a duty to remove as soon as reasonably practicable. The evidence establishes that removal is not, at present, reasonably practicable. The steps taken to remove the applicant are detailed in [11]-[16] of the Sullivan Affidavit. Owing to the COVID-19 pandemic, and, in particular, the recent increase in cases of COVID-19 in PNG, PNG is not presently issuing the letters of approval required for transitory persons to be sent to PNG [50]. The Department is continuing to engage with the PNG Immigration and Citizenship Authority on whether PNG will resume receiving transitory persons[51].
[50] Sullivan Affidavit at [7]-[8]
[51] Sullivan Affidavit at [9]
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 AOU21
Applicant’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
Accordingly, the Commonwealth took steps towards removal of the applicant to Nauru, under the Instrument[63].
[63] Sullivan Affidavit, Annexure AS11
On or about 29 March 2021 approval was sought from the Nauruan authorities for removal of the applicant to Nauru on the basis that[64]:
A MOC has advised that both [the applicant] and [redacted] no longer need to remain in Australia for the temporary (medical) purpose for which they were brought. Both are FTT at last advice.
[64] Sullivan Affidavit, Annexure AS12
Approval was given by the Nauruan Authorities on 7 April 2021 for the removal of the applicant to Nauru[65].
[65] Sullivan Affidavit, Annexure AS13
The applicant contends that no steps have been taken to remove him to Nauru notwithstanding the obligation to remove him to Nauru.
The applicant submits that although the applicant in AOU21 did not seek declaratory orders that s 198AH(1) was engaged, the Court so found and made the declaration. So also in this case the declaratory relief ought to be granted in the same terms.
Failure to take steps to remove
The application at Ground 1 particular 3 states, among other things:
The Defendants 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.
The Full Federal Court and Federal Court decisions above recognise that the power of removal is under s 198AD(2) rather than s 198(1A) and that hence non-refoulement obligations must be considered prior to removal to a regional processing country.
The reference to PNG should be understood in the context to mean “a Regional Processing Country”, in the context of s 198AD(2), which states:
An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.
The respondents’ submissions at the same time as the Sullivan Affidavit, accept that there was a failure to take steps to remove the applicant between 15 November 2020 (and/or 9 December 2020), and 17 March 2021.
The applicant submits that accordingly on the basis of the admissions of the respondents in this regard, the applicant is entitled to declaratory relief that:
(a)the respondents breached their obligations to take steps to remove the applicant between 15 November 2020 (or 9 December 2020) and 17 March 2021; and
(b)the detention of the applicant between 9 December 2020 and 17 March 2021 was unlawful.
Further, the applicant is said to be entitled to declaratory orders that s 198AH(1) was engaged from 15 September 2020 when the QPASST[66] counsellor determined that he was at high risk,[67] and that the detention was unlawful from that date 15 September 2020 to 17 March 2021 due to the failure to undertake steps towards removal.
[66] Queensland Program of Assistance to Survivors of Torture and Trauma
[67] See applicant’s affidavit made on 2 March 2021, Annexure AAT1
Further, the applicant is entitled to declaratory relief that from either 17 March 2021 to now, or from 29 March 2021 to now. The respondents are said to have failed to fulfil their duty to remove the applicant to Nauru under s 198AD(2) including by failure to undertake a mandatory step of conducting a non-refoulement assessment with respect to the applicant via Nauru from 29 March 2021.
Should the Court find that the s 198AD removal obligation arose on 15 September 2020, then it would precede and hence take precedence over the applicant’s request for removal to PNG because of the operation of s 198(11):
This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.
It is submitted by the applicant that, in the event that s 198AH(1A) precedent conditions were met on 15 September 2020, then the Court should find that the obligation to remove under s 198AD(2) came into effect then and has not abated since then, to the exclusion of the s 198(1) removal obligation. In that case all belated steps towards removal between 17 March 2021 to 29 March 2021 were null because of the failure to conduct a non-refoulement assessment.
In any case with respect to all periods, including from 29 March 2021 to now, there has been no undertaking of a non-refoulement assessment.
The decisions of the Full Federal Court in AOU21 and of the Federal Court in MB state that the law imposes an obligation on the respondents to undertake a non-refoulement assessment with respect to the s 198AD(2) removal obligation.
The applicant submitted before the trial of this matter:
That is to say, if it is found that the obligation to remove the applicant was already enlivened by s 198AD(2) by operation of s 198AH(1A), it follows the obligation to remove the applicant under s 198(1) was not engaged by the later requests to be returned because of the operation of s 198(11).
This view is said to be supported by the statement of Gageler J in Plaintiff M96A/2016 stated[68], quoted by the Full Federal Court in AOU21[69], and repeated in the respondents’ submissions.
[68] At [38]-[42]
[69] At [143]
The respondents’ pre trial submissions are said to be remarkable for their failure to address the obligation to remove to Nauru:[70]
The respondents accept that, from 9 December 2020 to 17 March 2021, they were under a duty to remove FDT20 as soon as reasonably practicable under s 198(1), owing to the applicant having made a written request. The current source of the duty to remove, however, is s 198AD(2), since the applicant has, since 17 March 2021, no longer needed to be in Australia for the temporary purpose of receiving medical treatment: First Ruttley Affidavit, [13], Annexure ‘WR-6’ . In this respect, FDT20’s contention that the obligation to remove arises under both ss 198(1A) and 198AD(2) is incorrect: cf CB (ground 1(iii) of the application). It is clear from s 198(11) that ss 198 and 198AD do not apply concurrently.
The duty to remove under s 198AD(2) is a duty to remove as soon as reasonably practicable. The evidence establishes that removal is not, at present, reasonably practicable. The steps taken to remove the applicant are detailed in [11]-[16] of the Affidavit of Alana Sullivan affirmed in these proceedings on 9 April 2021. Owing to the COVID-19 pandemic – and, in particular, the recent increase in cases of COVID-19 in PNG – PNG is not presently issuing the letters of approval required for transitory persons to be sent to PNG: [7]-[8] of the affidavit. The Department is continuing to engage with the PNG Immigration and Citizenship Authority on whether PNG will resume receiving transitory persons: [9] of the affidavit.
In the alternative, if the Court finds that removal has not been effected as soon reasonably practicable, the only available remedy is the order for mandamus (sought in order 2 of FDT20’s application in a case)…
[70] At [30]-[32]
The Application in a Case relevantly referred to in the respondents’ pre trial submissions at [32], states:
Orders sought
…
2.A Writ of Mandamus issue compelling the respondents to remove the applicant to the Regional Processing Country.
…
Grounds.
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) –
The applicant submits that he no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia when his counsellor told him that his condition could not be helped, by at least 15 September 2020 when he was designated by QPASTT as being at high risk of harm due to being in detention and needing to be out of held detention.
The applicant has requested such an order of mandamus for removal in the Application in a Case and this Court is empowered to make such an order of mandamus with respect to the obligation under s.198AD(2).
MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442
On 30 April 2021, Kerr J delivered judgement in MB. His Honour considered the Full Federal Court decision in AOU21. His Honour found[71] that it was not necessary to determine whether the process available to the applicant in Nauru was “a sham”:
…Neither do I need to make findings as to whether the Supreme Court of Nauru has demonstrated any final and conclusive disposition not to hear the Appellant’s remitted appeal such that his return for the processing of his claims would be a sham.
[71] At [80]
However in this case, the applicant is not a refugee, nor does he have any process at all in Nauru. The Minister proposes to send the applicant to Nauru on the hope that he may be accepted for resettlement in Canada. That process was just an application process without a right or guarantee of a successful outcome. The applicant withdrew the request for a number of reasons including that being taken to the medical appointments by the Serco guards triggered his PTSD symptoms.
The applicant submits that to send him to Nauru would indeed be a sham process, an abuse of process, and the exercise of a spent power. Further, it would be severely unsafe for the applicant, both with respect to the ethnic conflict of locals against refugees on Nauru, and having regard to the applicant’s mental and physical health.
Conclusion
The applicant submits that the respondents have not provided any explanation for the failure to undertake removal to Nauru or to take mandatory steps towards removal, including the conduct of a non-refoulement assessment.
The applicant submits that the triggering of the obligations of removal as soon as reasonable practicable in ss 198AD(2) (or 198(1)) meant that for detention to remain for the purpose of removal, removal must have been pursued or undertaken as soon as reasonably practicable from the time of the trigger. The Court is to make an objective assessment of all relevant circumstances including the steps taken in pursuance of removal, and those steps which were reasonably practicable but which were not taken.
It is said to be apparent that the respondents failed to take steps to remove the applicant to PNG when it was possible, and are in deep abeyance in failing to take steps to remove the applicant to Nauru. Further, the respondents are said not to have undertaken a mandatory step required to effect removal to Nauru, being a non-refoulement assessment. The failure to take any steps is a proof that the removal of the applicant from Australia has not been undertaken or carried into effect and that this has entailed a departure from the purpose of detention.
The applicant submits that the respondents have not discharged their burden to prove the applicant’s detention is legal, including by justifying their inaction and the delay. The Court should accordingly find the applicant’s detention is illegal.
The applicant contends that he remains unlawfully detained and is entitled to orders of habeas corpus.
Respondents’ contentions
The respondents note that the applicants in the reserved proceedings filed submissions that address a number of topics other than the decision in AOU21. Those submissions also purport to address some matters outside the reserved proceedings. Further submissions in relation to one of the applicants in the reserved proceedings, being FDT20, were filed on 12 May 2021[72] (the submissions filed to date do not refer to two of the six reserved proceedings, being FGS20[73] and FKO20[74]. However, in the absence of any clear indication to the contrary, the 3 May 2021 submissions, supplemented in the case of FDT20 by the 12 May 2021 submissions, are assumed to be relied on in relation to all six of the reserved proceedings).
[72] The header on the first page of this document refers to “FDD20” – however, as the coversheet and substance appear to address the circumstances of FDT20, the respondents understand this to be a typographical error
[73] In relation to FGS20, two additional affidavits were emailed to the Court, without advance notice to the respondents, on 11 May 2021. The respondents have opposed the Court receiving and considering this material
[74] In relation to FKO20, an additional affidavit was filed by the applicant, without advance notice to respondents, on 10 May 2021. The respondents have opposed the Court receiving and considering this material
The Minister’s supplementary submissions only address the decision in AOU21, and only in relation to the reserved proceedings. To the extent that the applicants’ submissions filed on 3 May 2021 and 12 May 2021 exceed the topic and matters in relation to which the parties were invited to address the Court, those submissions are objected to by the respondents, and not responded to.
As the respondents indicated in their initial written submissions under the heading “duration of detention” in both sets of consolidated written submissions filed to date in relation to the reserved proceedings (one set in relation to the matters originally listed on 12 and 14 April, a second set for the proceedings originally listed for 15 and 16 April 2021), in Plaintiff M96A/2016, Gageler J held that the question whether a person no longer needs to be in Australia for the temporary purpose for which they were brought here is an objective matter to be determined by the Court[75]. The other members of the High Court did not find it necessary to determine whether this was so or whether, as the Commonwealth submitted, it was a matter for the satisfaction of an officer (which would be open to judicial review by the Court on the usual bases for review of a state of satisfaction)[76].
[75] Plaintiff M96A/2016 at 598-600 [37]-[42]
[76] Plaintiff M96A/2016 at 597 [32]
The approach of Gageler J found favour in AOU21. The key points made in that judgment are as follows:
(a)the matters in s 198AH(1A) are jurisdictional facts[77]. The statutory text of that subsection does not use words that refer to a state of mind or an evaluative judgment to be made. It is entirely objective;
(b)the “temporary purpose” in s 198AH(1A)(c) must be identified with specificity, beyond the statutory language of “medical or psychiatric assessment or treatment”[78];
(c)the assessment of whether the duty in s 198AD is engaged requires the Court to make findings about the specific conditions for which a person was brought to Australia and whether, by reason of the treatment for those specific conditions, the applicant still needs to be in Australia[79]; and
(d)medical issues arising after the transfer of a transitory person to Australia could affect whether it is reasonably practicable for the purposes of s 198AD to remove him or her to a regional processing country[80].
[77] At [118]-[145]
[78] At [146]-[157]
[79] At [158]
[80] At [159]
The claims made in the submissions filed by the applicants in the reserved proceedings in the supplementary submissions insofar as they relate to AOU21 may be briefly addressed.
First, the fact that the Court in AOU21 made reference to the power in s 198AE of the Migration Act[81] in its reasons is said to provide no present assistance to the applicants in the reserved proceedings. In AOU21, “the Commonwealth accepted” that an assessment pursuant to s 198AE may be required[82]. That statement was made in the context of the facts in AOU21. The factual circumstances of that case are different from those of the applicants in the reserved proceedings, and do not presently assist. As is explained by the Court in AUO21[83], the applicant in that case led unchallenged evidence about his sexual orientation and previous experiences he had in PNG which he attributed to that orientation. It was in this specific context that the Commonwealth, in that case, accepted an assessment prior to removal was likely to be required. The respondents have made no equivalent admissions in relation to any of the six reserved proceedings, which involve very different considerations (which were addressed in detail in the respondents’ previous submissions, and briefly canvassed again below).
[81] At [54]
[82] At [54]
[83] At [54]
Secondly, the comments of the Court in AOU21 about the suitability of mediation[84], which followed its determination that, in the circumstances of that case, the applicant no longer needed to be in Australia for a temporary purpose but had not established that it was reasonably practicable to remove him to a regional processing country, are (again) said to be of no present relevance.
[84] At [233], [234]
Finally, the applicants in the reserved proceedings emphasise a reference in AOU21[85], to the effect that s 197C of the Migration Act does not, in terms, apply to s 198AD. The respondents respond as follows:
(a)in circumstances where a person still needs to be in Australia for the temporary purpose but has requested removal, then s 198(1) is the source of any obligation to remove. Section 197C does apply in these circumstances. Of the applicants in the reserved proceedings, this is relevant to FGS20, ADV21 and FKO20;
(b)in relation to FDT20, the respondents refer to their submissions in relation to the matters listed for 12 and 14 April 2021, and the evidence described therein, about ongoing engagement with the PNG Immigration and Citizenship Authority as to whether PNG will resume receiving transitory persons. The lengthy submissions filed on behalf of FDT20 after the trial cover terrain that is well outside the limited issue on which the parties were invited to address the Court in subsequent submissions (in relation to AOU21). In circumstances where the matters have been heard, evidence has closed, and judgment is reserved, the respondents oppose those submissions being filed except to the extent that they expressly address the decision in AUO21. However, the respondents note briefly, in direct response to those submissions, that:
(i)the suggestion[86] of those submissions to the effect that AOU21 “imposes an obligation” to conduct a non-refoulement assessment in relation to any removal to an offshore processing location is wrong – the case establishes no such proposition;
(ii)the applicant’s specific request was to be returned to PNG [87]; and
(iii)the respondents’ efforts to remove the applicant to Nauru are detailed in the Sullivan Affidavit[88].
(c)for FJH20 and FJS20, the respondents’ submission has been that no duty to remove arises. Accordingly, there is no reason for the Court to consider non-refoulement arguments raised by any of these applicants (and, as above, to the extent that points not previously advanced have been included in the post hearing submissions filed by the applicants in the reserved proceedings, these are not addressed by the respondents in their submissions).
[85] At [116]; as well as a reference in Kerr J’s decision in MB at [66]. This brief reference by a single judge (in relation to which the parties have not been invited to address the Court) is in the respondents’ submission of no assistance in relation to the reserved proceedings
[86] At [23] reproduced at [146] above
[87] This is addressed at CB 8 and 9 and in the Ruttley Affidavit at [9]-[10]
[88] At [20]-[24]
The respondents submit that for the reasons set out above there is nothing in the decision in AOU21 which assists any of the applicants in the reserved proceedings.
Resolution
I have considered the submissions above and generally I prefer those of the respondents, subject to my following observations. I dealt with the applicable legal principles most recently in AOR21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[89] The parties’ written submissions referred to above also deal with those principles and they have been dealt with at length in the decisions of the Federal Court and the High Court referred to.
[89] [2021] FCCA 958. I referred also to humanitarian considerations in that case which apply in varying degrees to all of the reserved proceedings
The applicant relies heavily upon the decision of Bromberg J in AJL20. The Commonwealth’s appeal to the Full Federal Court in that matter was removed into the High Court which heard argument on 13 April 2021. Judgment was delivered on 23 June 2021.
The decision in AJL20 was overturned by a majority of the High Court.
The majority (Kiefel CJ, Gageler, Keane and Steward JJ) allowed the Minister’s appeal from AJL20 (Bromberg J). Gordon and Gleeson JJ and Edelman J authored dissenting judgments. I am bound by the majority’s reasons.
The respondent, a Syrian citizen, had been detained pursuant to s 189 of the Migration Act since 8 October 2014, following the cancellation of his visa.[90] Bromberg J had found that, as the Commonwealth had not removed the respondent from Australia “as soon as reasonably practicable” as required by s 198(6) of the Migration Act, his detention was not for the purpose of removal from Australia and thus was unlawful. He also found that the Executive’s explanation for not returning the detainee to Syria, namely, its non-refoulment obligations, was not a justification for this failure, on account of s 197C of the Migration Act. (This provides that the duty to remove is not affected by any non-refoulement obligations.)[91]
[90] AJL20 at [1]
[91] As summarised by the High Court at [2], citing Bromberg J at [95]-[99] and [123]. The parties’ arguments on appeal are summarised at [3]
The majority considered the constitutional context and reiterated that the Commonwealth enjoys legislative power to make laws extending to the detention and removal of aliens pursuant to s 51(xix) of the Commonwealth of Australia Constitution Act 1900 (Cth) (Constitution).[92] This head of power is “qualified by the implications of Chapter III of the Constitution, involuntary detention being ordinarily within the exclusive province of the courts”.[93] The majority noted that in Lim the High Court had held that the earlier versions of ss 189, 196(1) and 198 were within the exception to the Chapter III limitation on executive detention because the detention is limited to that necessary for purposes of deportation or for an entry permit application to be made and considered.[94]
[92] At [21]
[93] At [22]
[94] At [23]
The majority described “two steps” in Bromberg J’s reasoning: first, in order to preserve s 196(1)’s constitutionality Bromberg J read down that provision “by treating the period of detention to which it refers as dependent not upon the existence of the duty to remove as soon as reasonably practicable in s 198(6), but upon performance of that duty in fact by the Executive”. Secondly, non-compliance with s 198(6) created a departure from the purpose of the detention authorized and required by ss 189(1) and 196(1).[95] A writ of habeas corpus was thus required to remedy the unlawful detention. Furthermore s 189(1) would not authorise re‑detention because, as the Commonwealth would maintain its non-refoulement obligations despite s 197C, any subsequent detention would not be for the purpose of removal.[96] Both these steps were flawed.[97]
[95] At [39]
[96] At [40] citing Bromberg J at [72]-[73] and [174]-[175]
[97] At [41]
The majority found that the detention authorized by ss 189(1) and 196(1) can be reasonably seen as being for a legitimate non-punitive purpose because “the authority and obligation of the Executive to detain unlawful non-citizens is hedged about by enforceable duties, such as that in s 198(6)”. With reference to Plaintiff M96A/2106 the majority explained that these duties also meant that the “duration, and thus lawfulness, of the detention authorised by the Act is capable of determination from time to time”. The provisions are therefore valid and there “is no need to read them down to save their validity.”[98] Plaintiff M96A/2016 and Lim do not stand for the proposition that “the authority and duty to detain imposed by s 189(1) disappears immediately upon delay in the performance of the hedging duty in s 198(6).”[99] Where the Executive “is dilatory in performing the hedging duties imposed upon it”, the proper remedy is mandamus to compel it to perform those duties: it is precisely because these duties are enforceable that the detention is within the s 51(xix) power as limited by Chapter III implications.[100]
[98] At [44]-[45]
[99] At [48]
[100] At [52]. In practice mandamus will never be sought where it would lead to refoulement
Section 196(3) purports to prevent the release, “even by a court”, of an unlawful non-citizen and is thus in tension with the primary judge’s construction of s 196(1). The majority additionally rejected the respondent’s argument (aimed at overcoming this tension) that s 196(3) was invalid “on the same basis its predecessor, s 54R, was held to be invalid in Lim”.[101] This is because unlike s 54R, s 196 is confined to “unlawful non-citizens” and also does not purport to preclude release from unlawful detention.[102]
[101] At [64]
[102] At [66], with reference to NAMU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 589 at 595 [10] per Black CJ, Sundberg and Weinberg JJ
Bromberg J’s second step of finding that the failure to remove as soon as practicable pursuant to s 198(6) made the detention for a purpose other than for removal was said to be justified by Plaintiff S4/2014 v Minister for Immigration and Border Protection[103] at [33]-[34] but this reading of Plaintiff S4/2014 was found to be mistaken and that case is not authority for the proposition that want of diligence in performing a duty to remove equates to an unauthorized punitive purpose for the detention.[104] Furthermore even if the Executive were pursuing an unauthorised purpose, this may not “render the detention mandated by s 189(1) during the period mandated by s 196(1)(a) invalid”.[105] It is sufficient for the officer to know or reasonably suspect that the person is an unlawful non-citizen and “an unauthorised or prohibited purpose on the part of the officer in prolonging the period of detention can affect neither the duty to detain nor the duty to remove nor the appropriate remedy for non-performance of the duty to remove”.[106]
[103] (2014) 253 CLR 219
[104] At [67]-[68]
[105] At [71]
[106] At [72]
The majority explained that the appropriate order would be an order, where the duty to remove as soon as reasonably practicable has not been discharged, for mandamus to compel the Executive’s officers to discharge their duty. In contrast, an order for release into the community would subvert the statutory scheme of the Migration Act.[107] If the Executive does not wish to breach its non-refoulement obligations by removing the detainee then it is open to the Executive to grant the detainee a visa through other provisions of the Migration Act, as explained by the Explanatory Memorandum which introduced s 197C.[108]
[107] At [73]
[108] At 74]
I reach same conclusion here that a writ of habeas corpus is unavailable to the applicant. Neither is a writ of mandamus to compel removal appropriate. That is because, during the relevant period, the Commonwealth took reasonable and practicable steps to remove the applicant from Australia.
First, I find that there is no need for the applicant to remain in Australia either for the temporary purpose for which he was brought to Australia or for any other reason. That was not disputed by the respondents. Although the applicant in his affidavit evidence initially disputed that he had received all necessary medical treatment in Australia, he more recently deposed that he was refusing all further medical treatment. The opinion of the Medical Officer of the Commonwealth, which was not disputed in these proceedings, is that the treatment of the applicant’s skin condition and psychological condition has been completed. I adopt that opinion.
The applicant’s multiple requests to be returned to PNG are consistent with the view that he no longer needs to be in Australia. It was abundantly clear from the applicant’s oral evidence heard at the trial that, although he is afraid to return to PNG, he regards it as the lesser of two evils. The applicant considers, probably correctly, that his continued detention in Australia is detrimental to his psychological state. He seeks return to PNG as a means of ending that detention.
I accept from the Ruttley Affidavit, the undisputed evidence that Mr Ruttley was satisfied that he was required to detain the applicant by reason of s 189 of the Migration Act and that he remains so satisfied. The consequence is that if the detention remains lawful, the applicant must remain in detention until he is granted a visa or removed from Australia.
I also accept from the unchallenged evidence of Ms Sullivan that she has been active, since the relatively recent requests from the applicant for return to PNG, to bring that about. First, there is an established process for that removal. Secondly, the current (and presumably not permanent) obstacle is the public health concern by the PNG government in respect of the COVID-19 pandemic. Further, Ms Sullivan made further enquiries about removal of the applicant to PNG in February and March 2021.[109]
[109] There has been no specific rejection by the PNG authorities of the return of the applicant, such as would engage s 198AG of the Migration Act
Because the PNG government is not generally accepting the return of transitory persons, Ms Sullivan also considered in March and April 2021 the possibility of removing the applicant to Nauru in accordance with the Instrument under s 198AD(5) of the Migration Act. Such removal was in fact intended to occur on or about 12 April 2021.[110] That did not occur because of the current proceedings and, more recently, the respondents undertook not to remove any of the applicants from Australia in proceedings in which I am currently reserving my judgment.
[110] Sullivan Affidavit at [23] and Annexure AS-12
It follows, in my view, that while s 198AH(1A) of the Migration Act is engaged, and while the duty in s 198AD(2) is also engaged, the respondents have satisfied me that the duty has to date not been breached.
I conclude that the detention of the applicant in this case has been lawful from the point in time in which he no longer needed to be in Australia until now.
CONCLUSION
The applicant has failed to establish an entitlement to the relief which he seeks. I will order that the application be dismissed.
I will hear the parties as to costs.
I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 2 August 2021
SCHEDULE OF PARTIES
SYG 2849 of 2020 Respondents
Fourth Respondent:
SECRETARY, DEPARTMENT OF HOME AFFAIRS
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