FGS20 v Minister for Home Affairs

FEDERAL CIRCUIT COURT OF AUSTRALIA

FGS20 v Minister for Home Affairs [2021] FCCA 753

File number(s):

SYG 2917 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

3 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 in part.

Legislation:

Migration Act 1958 (Cth) ss 198AD, 198AH, 198E

Cases cited:

AOU21 v Minister for Home Affairs [2021] FCAFC 60

Commonwealth of Australia v AJL20 [2021] HCA 21

FDT20 v Minister for Home Affairs [2021] FCCA 711

Number of paragraphs:

27

Date of last submission/s:

6 July 2021

Date of hearing:

14 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 Roberts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

SYG 2917 of 2020

BETWEEN:

FGS20

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:	3 AUGUST 2021

THE COURT DECLARES THAT:

1.The applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia.

2.All of the pre-conditions in s 198AH(1A) of the Migration Act 1958 (Cth) are met in respect of the applicant.

3.Section 198AH(1) applies to the applicant.

THE COURT ORDERS THAT:

1.The applicant’s claims for:

(a)a declaration that his detention is unlawful; and

(b)an order in the nature of the writ of habeus corpus requiring his release from detention forthwith

are dismissed.

2. The matter is referred under Part 27 of the Federal Circuit Court Rules 2001 (Cth) to a registrar of the Court for a mediation, including but not limited to questions of:

(a)to which regional processing country the applicant will be removed as soon as reasonably practicable and, when such removal will occur;

(b)whether the parties seek to have the question of relief by way of mandamus re‑agitated before the Court in this proceeding, on the existing evidence or with new  evidence; and

(c)which parties should pay the costs of this proceeding.

3.        The parties have liberty to apply for further orders or directions on three days notice.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By application filed on 21 December 2020, the applicant seeks declarations that his detention was not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful. He seeks an order that he be released from detention forthwith. The particularised ground in the application is:

   1. The detention is unlawful because the Defendant is unwilling or unable to remove the Applicant to Papua…