FJH20 v Minister for Home Affairs

[2021] FCCA 1480

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJH20 v Minister for Home Affairs [2021] FCCA 1480

File number(s):

SYG 2997 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

4 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:

FJS20 v Minister for Home Affairs [2021] FCCA 754

FDT20 v Minister for Home Affairs [2021] FCCA 711

Number of paragraphs:

25

Date of last submission/s:

6 July 2021

Date of hearing:

15 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 2997 of 2020

BETWEEN:

FJH20

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:	4 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) (Migration Act) are met in respect of the applicant.

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

THE COURT ORDERS THAT:

1.The applicant’s claims for:

(a)an order that he be released from detention forthwith;

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

(c)any other relief in relation to his detention

be dismissed.

2.The proceedings are otherwise referred to a registrar under Part 27 of the Federal Circuit Court Rules 2001 (Cth) for mediation on the questions of:

(a)whether the applicant should and will be removed to a regional processing country as soon as reasonably practicable, and if so when and to where any such removal will occur;

(b)whether the parties seek to have the question of removal reagitated before the Court in this proceeding on existing evidence or on new evidence; and

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

3.The parties have liberty to apply for further directions or orders prior to, during or after the mediation.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By an application filed on 29 December 2020, the applicant sought declarations that his detention is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful, and an order that the respondents release him from detention forthwith. The grounds advanced are in the same terms as in many other matters before the Court involving so called “medevac” applicants. The assertion is that the applicant’s detention is unlawful because the respondents are unwilling or unable to remove him to a regional processing country as required by ss 198(1), (1A) and 198AD(2) of the Migration Act.

2. By an Application in a Case dated 30 March 2021, the applicant sought interlocutory relief in relation to the provision of non halal food to him and other applicants in Brisbane.  That application was resolved by undertakings given by the Minister for Home Affairs concerning practices in the supply of food at the Kangaroo Point Alternative Place of Detention (APOD) and ensuring that halal food would be made available at appropriate times at the APOD and the Brisbane Immigration Transit Accommodation (BITA) during Ramadan.  The respondents also agreed to participate in a conciliation process with persons named in a complaint to the Australian Human Rights Commission in relation to the provision of halal food. 

3. The matter came before me for a final hearing on 15 April 2021 on the substantive application.   At that time the solicitor for the applicant sought and was granted leave to rely upon an amended application in the terms the subject of leave granted the same day in FJS20 v Minister for Home Affairs.[1]  No amended application was filed in either matter. 

   [1] [2021] FCCA 754

4. A further Application in a Case was provided on 14 June 2021.  That application sought interlocutory orders in the nature of habeas corpus on the same grounds as in the substantive proceedings.  I directed the registry not to file that Application in a Case, given that the Court had reserved judgment on those issues on a final basis.  I also took into account that on 2 June 2021 the respondents undertook not to remove the applicant (and other applicants the subject of reserved judgments) until final judgment was delivered.

5. In addition to the court book filed on 23 March 2021 and a supplementary court book filed on 31 March 2021, I received as evidence the following material:[2]

   [2] The respondents objected to my receipt of post hearing evidence but I decided to receive it

   (a)the applicant’s affidavit made on 20 December 2020 and filed with his original application in which he deposes oral and written requests to be returned to Nauru.  The oral requests were not dated but the written request is dated 17 December 2020 and a photograph of it is annexed to the affidavit;

   (b)an affidavit by the applicant made on 20 March 2021, to which is annexed a copy of his IHMS[3] clinical records;

   (c)a further affidavit made by the applicant on 19 March 2021 in which he deposes as to his fear of being returned to Nauru and attacks perpetrated upon him when he was in Nauru;

   (d)the affidavit of Wayne Ruttley made on 8 April 2021.  Mr Ruttley is the applicant’s status resolution officer (RSO) and deposes as to his knowledge of the applicant’s circumstances as a detainee.  He opines that the applicant still needs to be in Australia for the purpose of medical treatment and that he is unfit to travel;

   (e)an affidavit by the applicant made on 10 April 2021 in which he deposes as to his migration history, assaults upon him in Nauru and his medical problems;

   (f)an affidavit by Daniel Robert Taylor made on 14 April 2021 to which is annexed a copy of the Refugees Convention and Protocol;

   (g)an affidavit by the applicant made on 14 April 2021 in which he deposes as to his participation in the USA resettlement process;

   (h)an affidavit by the applicant made on 24 May 2021 concerning his mental health;

   (i)an affidavit made on 25 May 2021 by the applicant annexing correspondence received by the Australian Border Force dated 25 May 2021.  The correspondence corroborates the applicant’s assertion that he is refusing further medical treatment; and

   (j)an affidavit made by the applicant on 31 May 2021 annexing correspondence received from IHMS concerning the applicant missing his medications. 

   [3] International Health and Medical Services

   CONSIDERATION

6. The statutory provisions bearing upon the issues arising in this case and the legal principles relating to those provisions have been dealt with at length in earlier proceedings in the High Court, the Federal Court and this Court, recently by me in FDT20 v Minister for Home Affairs[4].  Those provisions and the legal principles relating to them do not need to be repeated here.

   [4] [2021] FCCA 711

7. Central to the applicant’s claims is the proposition that he does not need to be in Australia any longer and that he should be released from detention because the respondents have failed to act upon his request that he be returned to Nauru. 

8. I accept from Mr Ruttley’s affidavit that the applicant, who is originally from Somalia, arrived at Christmas Island by boat as an authorised maritime arrival on 11 September 2013. On 8 November 2018 the applicant was taken to Nauru, under s 198AD of the Migration Act.[5] 

   [5] Affidavit of Mr Ruttley at [6]

9. On 13 August 2019 the applicant was transferred to Australia under s 198B of the Migration Act for medical treatment in relation to a suspected life threatening cardiac condition. The applicant has received some medical treatment since his arrival in Australia.[6]  Annexed to Mr Ruttley’s affidavit is an IHMS health summary dated 25 March 2021.

   [6] Affidavit of Mr Ruttley at [7]

10. There is no evidence corroborating the applicant’s assertions that he made two oral requests for transfer back to Nauru in 2020.  It is common ground, however, that he made a written request on 17 December 2020.  That request has not been acted upon. 

11. Based on Mr Ruttley’s affidavit, there are two reasons for that.  The first is Mr Ruttley’s opinion that the applicant still needs to be in Australia for the purpose of medical treatment.  At the time of Mr Ruttley’s affidavit, the applicant had been referred for cardiac investigations which at that time remained pending. 

12. Secondly, Mr Ruttley’s review of departmental records establishes that the applicant has been unfit for travel as he requires a Holter monitor to investigate recurring syncopal episodes.

13. Mr Ruttley deposes that in his capacity as the applicant’s SRO, he is satisfied that he is required to detain the applicant by reason of s 189 of the Migration Act.

14. The IHMS health summary concerning the applicant annexed to Mr Ruttley’s affidavit was made on 25 March 2021.  It details a left eye condition apparently sustained from trauma involving a cigarette lighter.  The applicant received some treatment for his eye injury in Australia but it apparently awaits a specialist review. 

15. In relation to his syncope (temporary loss of consciousness or fainting), this was a critical issue supporting the applicant’s transfer from Nauru to Australia for investigation for his syncopal episodes.  While those episodes continue periodically, a cause of them has not been determined.

16. The IHMS report also details mental health issues concerning the applicant which are related to a history of torture and trauma, as well as other physical conditions.

17. In summary, the applicant has been prescribed medications and counselling was scheduled.  Ophthalmology consultations, physiotherapy and the provision of a Holter monitor were all pending at the time of the IHMS report.  

18. The most recent affidavit evidence provided by the applicant (admittedly untested and provided subsequently to the hearing) is that he is refusing to take his medication and he is refusing further medical assistance from the respondents. Annexed IHMS and Border Force correspondence corroborate that. While I do not dispute Mr Ruttley’s opinion at the time of his affidavit that the applicant still needed to be in Australia for medical treatment and that he is unfit to travel without a Holter monitor, it became apparent that no further progress in dealing with the applicant’s medical conditions could be achieved because of his lack of co-operation. It follows, in my view, that as at that date the applicant no longer needed to be in Australia for the temporary purpose for which he was brought here.

19. The next question is whether the respondents are under a duty to remove the applicant from Australia as soon as is practicable. Whilst I accept that the applicant made one written request for return to Nauru and that that request has not been acted upon, there are good reasons for that. Most especially, the applicant is unfit for travel. Further, the applicant’s request for transfer to Nauru is in my view disingenuous and should not be accepted as a genuine expression of his wishes. The applicant gave both written and oral evidence of assaults upon him in Nauru, including one brutal and prolonged assault in which he was badly beaten and rendered unconscious, requiring hospitalisation. The applicant’s written and oral evidence, which I accept, is that he holds grave fears for his safety in Nauru and, if there was a prospect of him being removed there, he would raise a claim for protection in relation to Nauru.

20. It is in my view certain that any attempt by the respondents to transfer the applicant back to Nauru would be met by an application for an injunction to restrain them.

21. On the basis of the evidence before me, I accept that the applicant has established on the balance of probabilities that the three pre-conditions in s 198AH(1A) are met. The applicant is a transitory person who was brought to Australia from Nauru under s 198B for a temporary medical purpose and was detained here under s 189. The applicant no longer needs to be in Australia for that temporary purpose (even though that purpose has not been achieved).

22. I make no finding whether the duty in s 198AD(2) is engaged. A positive finding would, in my view, be an artificial one, given that it is obvious that it is not reasonably practicable to remove the applicant to a regional processing country. First, he remains unfit to travel as he does not wear a Holter monitor and is at risk of further fainting episodes which may or may not be related to an undiagnosed cardiac condition. Secondly, any attempt to transfer the applicant back to Nauru would be met by further legal proceedings to restrain that. Thirdly, it is plain from the evidence in a large number of other matters that an alternative transfer to Papua New Guinea (PNG) is not reasonably practicable because of public health advice from the PNG government concerning the COVID-19 pandemic.

23. The circumstances as found by me in this matter are sufficient for the grant of declaratory relief that the applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia.  That was not sought by the applicant but it is, in my view an appropriate declaration to be made in the circumstances.  I am not persuaded that the declaration sought by the applicant concerning the alleged unlawfulness of his detention should be made.  On the contrary, in my view, the detention of the applicant remains lawful, at least until such time as a duty of removal, which could be met, arises. 

    CONCLUSION

24. The applicant has succeeded in establishing that he does not need to be in Australia any longer in relation to the temporary purpose for which he was brought here. That supports limited declaratory relief. He has not established that the respondents have breached any duty to remove him under s 198AD(2). Further, the applicant has not established that his detention is unlawful or that an order should be made for his release.

25. What should happen from this point in the case of this applicant is appropriately a matter that can be the subject of mediation between the parties and I will make the appropriate orders.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       4 August 2021

SCHEDULE OF PARTIES

SYG 2997 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS