FDT20 v Minister for Home Affairs

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

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

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

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