FGS20 v Minister for Home Affairs

The applicants in FGS20 v Minister for Home Affairs sought an order to provide administrative assistance and facilitate the evacuation of the second to sixth applicants from Afghanistan. The first applicant, who was transferred from Christmas Island to Papua New Guinea and then to Australia for medical treatment, remained in Australia and had made a written request for removal to Papua New Guinea. The first applicant had also sought in the Federal Circuit Court a declaration that his detention was unlawful and an order for his release. The respondents sought summary dismissal of the applicants’ proceeding and an order for costs against the first and second applicants, while no costs order was sought against the third to sixth applicants, who were minor children.

The legal issues before the court were whether the applicants had a reasonable prospect of successfully prosecuting their proceeding and whether the court should grant interlocutory relief or summarily dismiss the proceeding. The respondents argued that the court should be satisfied that the applicants had no reasonable prospect of success due to the first applicant's request for removal to Papua New Guinea and the COVID-19-related issues that prevented removal.

The court found that the first applicant's request for removal to Papua New Guinea did not necessarily derogate from his request to be removed to Papua New Guinea, and the undertaking given by the respondents could have been easily varied to permit the first applicant's removal to some other destination. The court refused the interlocutory relief sought by the applicants and stood over the application for summary dismissal. The court ordered the applicants to file and serve an amended originating application, amended statement of claim, evidence, and the application to appoint the first applicant as litigation representative of the second to sixth applicants, while the respondents were ordered to file and serve their defence and evidence.

The court reserved the liberty to the parties to apply. The orders made by the court included the refusal of the interlocutory relief sought by the applicants, an order for the first and second applicants to pay the respondents' costs, and orders for the applicants and respondents to file and serve various documents by specified dates. The case highlights the importance of considering the circumstances of each case when determining whether to grant interlocutory relief or summarily dismiss a proceeding.