FDT20 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

FDT20 v Minister for Home Affairs [2021] FCA 1484

Appeal from: FDT20 v Minister for Home Affairs [2021] FCCA 711
File number: NSD 840 of 2021
Judgment of: GRIFFITHS J
Date of judgment: 29 November 2021
Catchwords: MIGRATION – appeal from decision of Federal Circuit Court to refuse writ of habeas corpus and mandamus –application for leave to amend notice of appeal to run a ground not permitted to be run below – where proposed amended notice of appeal provided two days before hearing – no sufficient explanation for delay – where respondents contend new ground could have been met by evidence below – where appellant is an unauthorised maritime arrival in Australia for a temporary purpose – whether arguable case that non-refoulement assessment must be conducted before taking appellant to a regional processing country pursuant to s 198AD of the Migration Act 1958 (Cth) – held: leave to amend refused and appeal dismissed
Legislation:

Migration Act 1958 (Cth) ss 189, 196(1), 197C, 198, 198AA(b), 198AD, 198AH

Federal Court Rules 2011 (Cth) r 36.01

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) Arts 32 and 33

International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) Art 13

Protocol Relating to the Status of Refugees, 606 UNTS 267 (entered into force 4 October 1967) Arts 32 and 33
Cases cited:

AOU21 v Minister for Home Affairs [2021] FCAFC 60

Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567

FDT20 v Minister for Home Affairs [2021] FCCA 711

Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12

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

Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161

NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506

Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582

Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516

VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
Division: General Division
Registry: New South Wales
National Practice Area: Administrative and Constitutional Law and Human Rights
Number of paragraphs: 47
Date of hearing: 24 November 2021
Solicitor for the Appellant: Sydney West Legal and Migration
Counsel for the Respondents: Mr P Knowles with Ms C Ernst and Ms C Roberts
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

NSD 840 of 2021
BETWEEN:

FDT20

Appellant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA

Third Respondent

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Details
Case
[2021] FCA 1484
Decision Date

CaseChat Overview and Summary

In the case of FDT20 v Minister for Home Affairs, the appellant, an unauthorised maritime arrival in Australia for a temporary purpose, challenged the legality of his detention under the Migration Act 1958 (Cth). The Federal Circuit Court had previously dismissed his application for a writ of habeas corpus and a writ of mandamus, which sought his removal to Papua New Guinea. The appellant appealed to the Federal Court seeking leave to amend his notice of appeal to include a new ground that a non-refoulement assessment must be conducted before he is transferred to a regional processing country. The court was required to determine whether the appellant should be granted leave to amend his notice of appeal to include this new ground and whether the proposed amendment presented an arguable case.

The court held that the appellant was not entitled to leave to amend his notice of appeal. The proposed amendment was filed just two days before the hearing and the appellant provided no sufficient explanation for the delay. The respondents argued that the new ground could have been raised in the Federal Circuit Court. Moreover, the court found that the proposed ground did not present an arguable case as the appellant's detention was authorised by law. The court emphasised that the appellant's detention was for the purpose of removal as soon as reasonably practicable and the respondents had taken steps to remove him to Papua New Guinea. The court concluded that the appellant had not established that the proposed amendment presented an arguable case.

The court refused the appellant leave to amend his notice of appeal and dismissed the appeal. The appellant was ordered to pay the respondents' costs as agreed or taxed. This decision highlights the importance of timely and sufficient explanation for proposed amendments to notices of appeal and the need for appellants to establish that any proposed amendment presents an arguable case.

Orders

Orders of the court

1. Leave to amend the notice of appeal filed on 12 August 2021 is refused.

2. The appeal be dismissed.

3. The appellant pay the respondents’ costs, as agreed or taxed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

I will set out some relevant background matters drawing primarily on the primary judge’s reasons for judgment (see FDT20 v Minister for Home Affairs [2021] FCCA 711). Some relevant background matters Before the FCCA, the appellant was represented by the same solicitors as appear for him in this appeal. His judicial review challenge was one of ten cases (known as the “Medevac cases”) which were heard by the primary judge in April 2021. The primary judge reserved his judgment in the appellant’s proceeding and five other matters, while four additional cases were dealt with on the papers. The primary judge summarised the appellant’s application for judicial review. His Honour noted at [3] that there was one particularised ground, namely that the appellant’s detention was unlawful because the respondents were “unwilling or unable to remove [him] to Papua New Guinea” as required by ss 198(1) and 198(1A) of the Migration Act 1958 (Cth). In his particulars, the appellant said that he had made written requests to be removed to Papua New Guinea (PNG) on 15 November and 20 December 2020 and that the respondents were unable to remove him to PNG. At [4], the primary judge noted that the appellant had filed an Application in a Case on 10 March 2021 (the First Application). His Honour described that application as involving an application for a writ of habeas corpus and a writ of mandamus compelling the respondents to remove him “to a regional processing country”. As will emerge, this may be too broad a description of the application. A copy of the First Application was not included in the Appeal Book for the purpose of the appeal, but the grounds of the application are set out at [4] of the primary judge’s reasons for judgment. Those grounds are as follows: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.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

I am not persuaded that the merit of the proposed ground of appeal is sufficient, of itself, to warrant the appellant being granted leave to amend to run a new ground for the first time on appeal. Moreover, there are several other reasons why leave should not be granted, as set out above. Conclusion For these reasons, leave to amend the notice of appeal is refused. As the appellant acknowledged, it necessarily follows that the appeal must be dismissed, with costs.

Ratio Decidendi

Legal Principle Established

The primary judge summarised the appellant’s application for judicial review. His Honour noted at [3] that there was one particularised ground, namely that the appellant’s detention was unlawful because the respondents were “unwilling or unable to remove [him] to Papua New Guinea” as required by ss 198(1) and 198(1A) of the Migration Act 1958 (Cth). In his particulars, the appellant said that he had made written requests to be removed to Papua New Guinea (PNG) on 15 November and 20 December 2020 and that the respondents were unable to remove him to PNG. At [4], the primary judge noted that the appellant had filed an Application in a Case on 10 March 2021 (the First Application). His Honour described that application as involving an application for a writ of habeas corpus and a writ of mandamus compelling the respondents to remove him “to a regional processing country”. As will emerge, this may be too broad a description of the application. A copy of the First Application was not included in the Appeal Book for the purpose of the appeal, but the grounds of the application are set out at [4] of the primary judge’s reasons for judgment. Those grounds are as follows: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. Significantly, the primary judge confirmed later at [118] of his reasons for judgment that the First Application related only to PNG (footnotes omitted and emphasis added):By his application for a constitutional writ, FDT20 seeks a declaration that his detention is unauthorised and an order for his release from detention. He contends that his detention is unlawful on the footing that the respondents have not removed him to PNG as soon as reasonably practicable. 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).