Fhe20 v Minister for Home Affairs

[2021] FCCA 1492

FEDERAL CIRCUIT COURT OF AUSTRALIA

FHE20 v Minister for Home Affairs [2021] FCCA 1492

File number(s):

SYG 2936 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

10 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 189, 198AD, 198AH, 198B,

Cases cited:

ADM21 v Minister for Home Affairs [2021] FCCA 1488

FDT20 v Minister for Home Affairs [2021] FCCA 711

Number of paragraphs:

11

Date of last submission/s:

6 July 2021

Date of hearing:

Decided without oral hearing

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, Ms C Ernst, Ms C Roberts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

SYG 2936 of 2020

BETWEEN:

FHE20

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Respondent

COMMONWEALTH OF AUSTRALIA (and another named in the Schedule)

Third Respondent

ORDER MADE BY:	JUDGE DRIVER
DATE OF ORDER:	10 AUGUST 2021

THE COURT ORDERS THAT:

1.The applicant’s claims for declarations relating to his detention and orders for his release from detention are dismissed.

2.Without limiting the discretion of the registrar to permit other matters to be raised and agreed between the parties, questions of:

a)   whether, and if so when, the applicant will be removed to a regional processing country as soon as reasonably practicable; and

b)   which parties should pay the costs of this proceeding

be referred to mediation before a  registrar of the Court as soon as possible.

3.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 22 December 2020, the applicant seeks declarations that his detention is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful and orders that he be released from detention forthwith. He also seeks costs. The ground in support of the application is:

   1.The detention is unlawful because the [respondent] is unwilling or unable to remove the Applicant to a regional processing country as required by ss.198(1) and 198(1A) of the Migration Act 1958;

   Particulars.

   i.The applicant made a request for removal to Burma in 2014 but was refused.

   ii.The applicant was found to be a refugee in 2015.

   iii.The applicant requested removal to a regional processing country by depositing in the ABF drop box in the detention facility requests for removal to the regional processing country, on 7th July 2020, 25th August 2020, 5th October 2020.

   iv.The applicant made a written request for removal to a regional processing country by email on 11th October 2020.

   v.The [respondents] have not taken reasonable and necessary steps to carry into effect their obligation to remove the applicant to a regional processing country as soon as reasonably practicable as required by s.198(1A) and s.198AD(2) of the Migration Act 1958.

   vi.The detention of the applicant is not supported by any lawful purpose as required by the Migration Act 1958.

   vii.The [respondents] through the Department have not assessed the applicant against the s.46 or s.195A Ministerial Intervention guidelines

2. This matter was listed to be heard on a final basis in the period 12-16 April 2021 but was not reached.  It was agreed between the parties that the matter would be dealt with on a final basis on the papers. 

3. On 12 April 2021, the applicant filed an Application in a Case seeking an injunction restraining the respondents from removing the applicant to Nauru and other relief.[1]  The grounds in support of that application are:

   [1] An amended Application in a Case for which no leave was sought or granted was filed on 28 May 2021

   1.In determining whether the applicant “needs to be in Australia for the temporary purpose” as defined by s.198AD and s.198AH(1A) the Officer’s determination that the applicant no longer needed to be in Australia for the temporary purpose and hence is liable for planned removal on 15th April 2021 under the s.198AD(2) power, was affected by jurisdictional error:

   Particulars

   i.The Officer did not consider or weigh the applicant’s circumstances, intention to engage in protest through self-harm, and likely medical needs, in the destination country, Nauru.

   ii.The question under s.198AH(1A) of whether the applicant “needs” to be in Australia has been impermissibly confined and not considered objectively.

   iii.“The question of whether the applicant no longer needed to be in Australia for the temporary purpose is an objective one which falls to be answered by a Court (Plaintiff M96A/2016 at [42] per Gageler J), not by the ‘opinion, satisfaction or belief’ of a departmental officer: (Plaintiff M96A/2016 at [38])”.

   iv.In determining whether the applicant needed to be in Australia for the temporary purpose and hence was liable to removal under s.198AD(2), the Officer was obligated to but failed to consider the applicant’s non-refoulement claims.

   2.The s.198AD(5) Direction making Nauru the applicant’s relevant regional processing country, is spent, and its application to the applicant would be an abuse of process.

   Particulars

   i.The applicant has been declared a refugee.

   ii.There is no resettlement process either in Nauru or in any third country.

   iii.The removal of the applicant to Nauru would threaten his life and liberty

   iv.The holding of the Applicant in immigration detention by the Respondent for removal to Nauru is an abuse of process which threatens the Applicant’s liberty and life.

   v.The threat to the liberty and life of the applicant is contrary to the purposes of the Migration Act 1958 for the purposes of the intended application of the s.198AD(5) direction.

   vi.The Regional Processing Arrangements are due to sunset in April 2023 and the Respondent would be required to bring the applicant back to Australia thereafter and would continue his detention.

   vii.The national interest criteria for Regional Processing under s.198AB of the Migration Act 1958 is based on the protection of the applicant as a refugee from being subjected to a threat to his life or liberty.

   viii.The continued application of the s.198AD(5) direction to the applicant requires him to be kept in detention and thereby violates the purposes of the Migration Act 1958 and in particular the purpose of implementation of the obligation under Article 26 Refugees Convention to protect the applicant from threats to his liberty and life.

   3.The Removals Officer is required, but has failed, to consider the applicant’s non-refoulement claims with respect to Nauru.

   Particulars

   i.The process of removal under s.198AD constitutes an expulsion of a refugee to a country where his life and liberty would be threatened.

   ii.S.197C of the Migration Act 1958 has no application to an involuntary removal under s.198AD.

   iii.The applicant has non-refoulement claims with respect to Nauru.

   iv.The Respondent has not undertaken a consideration of the Applicant’s non-refoulement claims with respect to Nauru.

4. I have before me the following evidence:

   (a)affidavits by the applicant (augmented by video evidence) made on 19 December 2020, 19 March 2021, 23 March 2021, 9 April 2021, 11 April 2021 and 1 June 2021;

   (b)the affidavit of Stuart Foley made on 8 April 2021 (the applicant’s status resolution officer);

   (c)the affidavit of Alana Sullivan made on 9 April 2021;

   (d)the affidavit of Hervee Dupont Dejean made on 13 April 2021; and

   (e)the court book filed on 29 March 2021; and

   (f)a video deposition made by the applicant on 22 April 2021.

   CONSIDERATION

5. The applicant is one of a large number of so called “medevac” applicants with proceedings before the Court. The legal issues concerning the applicable provisions of the Migration Act and the interpretation of those provisions has been dealt with at length in other proceedings in the High Court, the Federal Court and this Court (most recently in FDT20 v Minister for Home Affairs[2]) and they do not need to be repeated here.  The issues in this case are essentially factual issues for resolution bearing upon the established legal principles.

   [2] [2021] FCCA 711

6. I accept from the applicant’s evidence that he is a Rohingya from Myanmar and has been recognised as a refugee in Nauru. 

7. I accept from the affidavit of Mr Foley that the applicant was lawfully detained on arrival by boat at Christmas Island on 20 October 2013 and was lawfully taken to Nauru under s 198AD of the Migration Act. I accept that Mr Foley is required by s 189 of the Migration Act to continue to detain the applicant.

8. On 20 November 2019 the applicant was transferred to Australia under s 198B of the Migration Act for medical treatment arising from the ingestion of foreign bodies. The applicant received medical treatment following his arrival in Australia. Medical evidence annexed to Mr Foley’s affidavit establishes to my satisfaction that the temporary medical purpose for which the applicant was brought to Australia has been completed.

9. I accept from the affidavit of Ms Sullivan that the applicant made written requests for removal to Nauru on or around 19 May 2020 and 20 December 2020.  According to the applicant, he made multiple additional requests.  Notwithstanding an initial delay, I accept from Ms Sullivan’s affidavit that she was diligent in pursuing the second request by the applicant.  Indeed, the applicant was due to depart Australia for Nauru on a charter flight on 15 April 2021, his transfer having been accepted by the Nauruan government.  That transfer did not take place, however, because of these proceedings.  On 2 June 2021, the Court accepted undertakings from the respondent Ministers not to remove the applicant (and a number of other applicants in the same position as the applicant), until the Court gives judgment in the proceedings. 

10. I accept from the applicant’s more recent evidence that, notwithstanding his several requests to be returned to Nauru, he is in fact afraid to go there due to his prior experiences.[3]  In my view, this places the applicant in essentially the same position as ADM21 v Minister for Home Affairs.[4] The temporary purpose for which the applicant was brought to Australia having been completed, he no longer needs to remain in Australia. The three pre-conditions in s 198AH(1A) are met and the duty in s 198AD(2) is engaged. I find that the applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia. That conclusion is not disputed and a declaration concerning it is unnecessary.

    [3] See, for example, the applicant’s affidavit of 9 April 2021 at [1] and [3]

    [4] [2021] FCCA 1488

11. Because the continuing detention of the applicant is lawful, his claim for declarations and an order for release in the principal application should be dismissed.  The issues concerning the removal of the applicant from Australia should be referred for mediation.  I will make orders to that effect.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       10 August 2021

SCHEDULE OF PARTIES

SYG 2936 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS