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: 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
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…
Keep reading for free
Create a free CaseChat account to read Fhe20 v Minister for Home Affairs and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2021] FCCA 1492
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant's continued detention in Australia was lawful, given that the temporary medical purpose for which he was brought to Australia had been completed. While the broader legal principles concerning the interpretation of the *Migration Act* in relation to such transfers had been extensively litigated in other proceedings, the present case required a factual determination regarding the applicant's circumstances and the engagement of relevant statutory duties.
Driver J accepted the evidence presented, including affidavits from the applicant and departmental officers, which established that the applicant was a recognised refugee from Myanmar who had been lawfully detained and transferred to Nauru. The Court found that the medical treatment for which the applicant was brought to Australia was complete. Despite the applicant having made requests to be returned to Nauru, the Court noted his subsequent evidence indicating a fear of returning due to prior experiences. Applying the principles from *ADM21 v Minister for Home Affairs*, the Court concluded that the applicant no longer needed to remain in Australia for the temporary medical purpose. Consequently, the pre-conditions in section 198AH(1A) of the *Migration Act* were met, engaging the duty under section 198AD(2) of the *Migration Act*.
The Court found that the applicant no longer needed to be in Australia for the temporary purpose for which he was brought. The respondent Ministers had provided undertakings not to remove the applicant until judgment was given, and the Court accepted these undertakings. The proceedings were adjourned pending further consideration of the applicant's circumstances.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 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 I accept from the applicant’s evidence that he is a Rohingya from Myanmar and has been recognised as a refugee in Nauru. 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. 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. 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. 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