FGS20 v Minister for Home Affairs

This case concerned an application by FGS20 against the Minister for Home Affairs. The applicant, an unauthorised maritime arrival who had been transferred to Australia for medical treatment, sought declarations regarding his detention and removal. The dispute centred on whether the applicant still required to be in Australia for medical treatment and, if not, whether the Minister had breached a duty to remove him or take adequate steps to do so.

The court was required to determine two primary legal issues. Firstly, whether the applicant's continued presence in Australia was necessary for the medical treatment for which he was transferred. Secondly, if the applicant no longer required treatment in Australia, whether the respondents had breached their statutory duty to remove him or to take adequate steps to effect his removal from Australia.

Driver J reasoned that the evidence indicated the applicant no longer needed to remain in Australia for medical treatment or any other purpose. While the applicant was a recognised refugee and had requested return to Papua New Guinea, his detention was found to be lawful as it was necessary to ensure his availability for removal to a regional processing country. The court found that the pre-conditions in s 198AH(1A) of the Migration Act were met and the duty in s 198AD(2) was engaged. However, the court deemed it premature to grant relief requiring the respondents to remove the applicant, as it was not satisfied that removal to a regional processing country was currently reasonably practicable.

Consequently, the court made a declaration that the applicant no longer needed to be in Australia for the temporary purpose for which he was brought. The parties were directed to attempt to resolve the remaining issues through mediation before a registrar of the Court, with a continuation of proceedings being a possibility if resolution was not achieved.