FJI20 v Minister for Home Affairs

Case •

[2021] FedCFamC2G 88

•

27 October 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88

File number(s): SYG 2998 of 2020
Judgment of: JUDGE DRIVER
Date of judgment: 27 October 2021
Catchwords: MIGRATION – applicant as a transitory person seeking wide ranging relief in relation to the medevac program and removal from Australia – interaction between the Racial Discrimination Act 1975 (Cth) and the Migration Act 1958 (Cth) considered – whether a Ministerial Direction concerning alternative places of offshore processing is invalid considered – application dismissed
Legislation:

Acts Interpretation Act 1901 (Cth), ss 7, 33, 46
Migration Act 1958 (Cth), ss 4, 5, 5AA, 14, 46A, 189, 195A, 196, 198, 198AA, 198AB, 198AD, 198AH, 198B, 198C, 198E, 198F
Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)

Racial Discrimination Act 1975 (Cth), ss 9, 10
Cases cited:

AB v State of New South Wales (2005) 194 FLR 156

Commonwealth of Australia v AJL20 [2021] HCA 21

Akhter v Minister for Immigration and Border Protection (2015) 292 FLR 433

ASP15 v Commonwealth (2016) 248 FCR 372

Australian Medical Council v Wilson (1996) 68 FCR 46

CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11

Commonwealth of Australia v Stamatov (1999) 94 FCR 341

Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52

De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502

FDT20 v Minister for Home Affairs [2021] FCCA 711

Jagroop v Minister for Immigration and Border Protection[2016] FCAFC 48

Macabenta v Minister for Immigration and Multicultural Affairs (1998) 90 FCR 202

Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 216

NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2

NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 224

O'Sullivan v Farrer (1989) 168 CLR 210

Pilbara Infrastructure Pty  Ltd v Australian Competition Tribunal ((2012) 246 CLR 379

Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336

Plaintiff M96A/2016 v Commonwealth of Australia (2017) 261 CLR 582

Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019

SHFB v Goodwin [2003] FCA 294

SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29

Singh v Minister for Immigration and Border Protection (2016) 304 FLR 396

Thorpe v Commonwealth (No 3) (1997) 71 ALJR 767
Division: Division 2 General Federal Law
Number of paragraphs: 132
Date of last submissions: 13 September 2021
Dates of hearing: 18, 23 August 2021
Place: Sydney
Counsel for the Applicant: Mr J Gormly
Solicitors for the Applicant: Sydney West Legal and Migration
Counsel for the Respondents: Ms C Roberts
Solicitors for the Respondents: Australian Government Solicitor

ORDERS

SYG 2998 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

FJI20

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMGRATION, 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:

27 OCTOBER 2021

THE COURT ORDERS THAT:

1.The further amended application filed on 10 August 2021 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

  1. The applicant is a citizen of Iran. On 25 July 2013 the applicant arrived in Australia on Christmas Island as an unauthorised maritime arrival.

  2. On 14 August 2013 the applicant was transferred to the Regional Processing Centre on Manus Island, PNG for “regional processing”.[1]

    [1] Court Book (CB) 57

  3. The applicant is a “transitory person” as defined in the Migration Act 1958 (Cth) (Migration Act) who was brought to Australia for a temporary purpose on 29 March 2019 under now-repealed s 198C of the Migration Act. In December 2020 the applicant asked, in writing, to be removed to a nominated regional processing country, being Papua New Guinea (PNG).

  4. The procedural history of this matter is rather convoluted.  By an application dated 26 December 2020 filed in these proceedings, the applicant sought the following forms of substantive relief:

    (a)a declaration that the detention of the applicant is not authorised by the Migration Act or by any other source of power;

    (b)an order for release from detention; and

    (c)costs.

  5. By way of amended application filed on 10 May 2021, the applicant also sought:

    (a)other declarations, including that the preconditions in s 198AH of the Migration Act had been met in respect of the applicant; and

    (b)an injunction restraining removal to Nauru.[2]

    [2] This version of the application raised as an issue the validity of a Ministerial Direction in 2021 concerning removal to an alternative place of regional processing

  6. At an interlocutory hearing on 7 July 2021, I made declarations that:

    (a)the applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia;

    (b)all the preconditions in s 198AH(1A) of the Migration Act in respect of the applicant have been satisfied; and

    (c)section 198AH(2) of the Migration Act applies to the applicant.

  7. In a proposed further amended application annexed to an affidavit by the applicant’s solicitor filed on 10 August 2021, the applicant also sought further relief including:

    (a)declarations that his detention had become punitive; and

    (b)declarations in relation to the Racial Discrimination Act 1975 (Cth) (RDA).

  8. Shortly after 5.00pm on 10 August 2021 the respondents were served with, and the Court was provided, a later iteration of the further amended application that adds the words “mandamus for removal to PNG” before the request for an injunction restraining removal to Nauru.

  9. The applicant filed written submissions on the evening of 10 August 2021.  Paragraph [30] of those written submissions indicates that the “applicant gives notice that he wishes to apply for” declarations which the respondents contend do not appear in any of the versions of the application that have been served.

  10. The applicant ultimately relied upon the further version of the further amended application referred to at [8] above. Under the heading “Migration decision details”, that application states:

    1.Holding the applicant in detention, being an ‘act’ or ‘the doing of a thing’ for the purposes of s.474(3)(g) of the Migration Act 1958;

    2. Failure to remove, or to take any reasonable steps towards removal of the applicant to the relevant regional processing country

    3. Failure to conduct a non-refoulement assessment in 2013 prior to sending the applicant to PNG for regional processing.

    4. Failure to make a determination as at 14th October 2019 that the applicant objectively no longer needed to remain in Australia for the temporary purpose for which he was brought, irrespective of whether the temporary purpose had been achieved.

  11. Under the heading “Final orders sought by applicant/s” the application seeks:

    1.Declaration that the applicant is not a transitory person because the original decision to remove the applicant to PNG in 2013 was affected by jurisdictional error through the failure to conduct a non-refoulement assessment.

    2. The applicant no longer needed to be in Australia for the temporary purpose for which he was brought to Australia,

    3. All of the preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) are met in respect of the applicant.

    4. Section 198AH(1A) applies to the applicant.

    5.Declarations that the detention of the Applicant is not authorized by the Migration Act 1958 or any other power and is therefore unlawful, from 14th October 2019 at which time the detention became punitive because:

    a.The removal obligation under s.198AD was engaged on 14/10/2019 – when the Minister declined to intervene under s197AB and thus caused the applicant to remain in held detention adversely affecting his psychological and physical health as a result of which objectively he no longer needed to be in Australia for the temporary purpose for which he was brought to Australia, from that date.

    b.The applicant no longer needed to be in Australia for the temporary purpose for which he was brought to Australia from 14th October 2019

    c.All of the preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) were met in respect of the applicant since 14th October 2019

    d. Section 198AH(1) applied to the applicant from 14th October 2019

    e. The Minister knew or constructively ought to have known that the harm to the applicant both physical and mental from ongoing detention outweighed any potential benefit of available medical treatment such that objectively the applicant no longer needed to be in Australia for the temporary purpose for which he was brought, irrespective of whether the temporary purpose had been achieved.

    6.        Orders that the [respondents] release the Applicant from detention forthwith.

    7. Mandamus for removal to PNG and an Injunction restraining the respondent [Minister] from removing the applicant to the alternative Regional Processing Country Nauru, pending a non-refoulement assessment

    8. Declaration that PNG is not available as a regional processing country to receive the applicant within the reasonably foreseeable future or at all, because of the applicant’s status as a failed asylum seeker, and generally as a transitory person.

    9. Declaration that the Unauthorised Maritime Arrival provisions of the Migration Act 1958 s.5AA are prohibited from application to the applicant as an Iranian Citizen, through the operation of s.9 of the Racial Discrimination Act [1975], such that the applicant was not and is not an unauthorised maritime arrival.

    10. Declaration that the Excluded Maritime Arrival provisions of the Migration Act 1958 s.5AA(3) as applicable to the applicant as an Iranian Citizen, through the operation of s.10 of the Racial Discrimination Act [1975], such that the applicant is afforded the rights accruing to an excluded maritime arrival.

    Re: Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/03

    11.

    i.Declaration that the detention of the applicant from 25 March 2021 for the purpose of removal to Nauru pursuant to Migration (Direction for Regional  Processing Countries) Instrument 2021 ADMIN21/031 is illegal.

    ii. Declaration that the Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/031 is contrary to law for unreasonableness and invalid.

    iii. Declaration that the Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/031 is contrary to law for being made upon considerations outside the subject matter, scope and purpose of Division 8 of Part 2 of the Act and invalid.

    Or in the alternative to the declarations of inapplicability:

    iv. Declaration that by reason of ss 46 and 7(2) [of the] Acts Interpretation Act 1901 the decision of the first respondent under paragraph 1 of the Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/031 to revoke the direction made under s 198AD(5) of the Migration Act 1958 (the Act) (revocation decision) does not apply to the applicant.

    v. Declaration that by reason of s 198AH(1)(b) and the illegal detention of the applicant on 25 March 2021 the Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/031 does not apply to the applicant.

    12.      Compulsory mediation

    13.      Costs

  12. The grounds advanced in the application are:

    14.The Respondent was aware in 2013 that the applicant would face significant harm in PNG including through arbitrary and unlawful imprisonment but did not disclose this information to the applicant.

    15. The Applicant was removed to PNG in 2013 without the conduct of a non-refoulement assessment.

    Failure to remove

    16. The applicant was brought to Australia for medical treatment for his hand, his teeth, and sciatica pain.

    17.      The applicant is shackled or handcuffed when taken for medical treatment.

    18. The Applicant has elected and determined and informed the respondent in writing that he does not consent to medical treatment in Australia for which he is handcuffed or shackled.

    19. The Applicant has a right to refuse, medical treatment and has exercised this right.

    20. As a consequence he no longer needs to be in Australia for the temporary purpose, even though it has not been achieved.

    21. In it is clear that the Government in 2013 breached its obligation to conduct a non-refoulement assessment for each person before sending them to Nauru or PNG.

    Punitive detention

    i.The Court failed to consider the applicant’s argument that s.198AH(1A)(c) was engaged on 14th October 2019 when the Minister refused to make a residence determination and thereby determined that the applicant would stay in held detention.

    ii.The applicant made an argument to the Court, which was not considered, that the applicant no longer needed to be in Australia for the temporary purpose from 14th October 2019 because the harm to his psychological and physical health from ongoing held detention significantly outweighed any potential benefit of ongoing treatment which could be offered while he remained in detention.

    iii.The applicant has not been taking medical treatment because the medical treatment has adversely affected him.

    iv.The decision of the Minister of 14 October 2019 to determine that the applicant should remain in held detention, was made with the actual or imputed knowledge that it was detrimental to the applicant’s psychological and physical health.

    v. The failure of the Minister to engage in the process of removal to PNG from 14th October 2019 to current, was punitive.

    vi. The detention was unlawful from 14th October 2019 as the determination that the applicant should remain in held detention (as opposed to community detention) without consideration of whether the applicant needed to be in Australia for the purpose for which he was brought here, and without taking steps to remove the applicant, was punitive, and hence not authorised by the Constitution or the Migration Act 1958.

    22.Grounds for relief related to Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/03

    i.The Migration (Direction for Regional Processing Countries) Instrument 2021 ADMIN21/03 (the 2021 Direction) is either invalid or does not apply to the applicant:

    ii The 2021 Direction is invalid due to failure to provide a mandatory requirement and process for the conduct of an International Treaties Obligation Assessment with respect to any non-refoulement claims prior to removal to Nauru.

    iii.The 2021 Direction is invalid for failure to … take into consideration a mandatory consideration, being the risk of harm generally through widespread and systematic persecution and serious harm against refugees in Nauru by the local population and authorities, without protection of law.

    iv.The 2021 Direction is invalid for having been made on considerations contrary to the statutory criterion of ‘public interest’ for the performance of the ‘duty’ in s 198AD(5), these considerations being outside the subject matter and scope and purpose of the Act, in particular the provisions of Division 8 of Part 2 of the Act as they apply to the removal of those transitory persons who no longer need to be [in] Australia for the temporary purpose for which they were brought to Australia, or who have requested return to their regional processing country; and who have already undergone ‘regional processing’.

    vi. The application of the 2021 Direction to the applicant is an abuse of power or the exercise of a spent power, in that the applicant has already been regionally processed

    vii.As a failed asylum seeker there would be no guarantee of non-refoulement to his country of origin

    23.The Excluded Maritime Arrival provisions of the Migration Act 1958 s.5AA(3) are applicable to the applicant as an Iranian Citizen, or otherwise the UMA provisions of s.5AA of the Migration Act 1958 are prohibited to be applied to the applicant because of s.9 and 10 of the Racial Discrimination Act 1975;

    Details

    i.The definition of ‘excluded maritime arrival’ as worked out through the Migration Act and Regulations includes New Zealanders and persons of Nationalities eligible to hold an Electronic Travel Authority passport.

    ii. The list of ETA eligible passport holders necessarily discriminates against Iranian persons.

    iii. Discrimination against the applicant through designation of him as an unauthorised maritime arrival on the basis of not being an excluded maritime arrival was and remains prohibited discrimination for the purpose of s.9 of the Racial Discrimination Act 1975.

    iv. The persons designation as ‘excluded maritime arrival’ enjoy the rights associated with not being an “unauthorised maritime arrival” because of their nationality

    v. This rights associated with being an excluded maritime arrival is denied to the applicant because of being an Iranian citizen.

    vi.The operation of s.9 of the Racial Discrimination Act 1975 prohibits discrimination on the basis of ethnicity and nationality.

    vii. The operation of s.10 of the Racial Discrimination Act affords to the applicant the same rights as those of the other nationality.

    RACIAL DISCRIMINATION ACT 1975 - SECT 10

    Rights to equality before the law

    (1)    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

    (2)    A reference in subsection (1) to a right includes a reference to a right of a kind referred to in Article 5 of the Convention.

    viii.     The Rights under Article 5 of the CERD Convention state:

    Article 5

    In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights:

    (a)The right to equal treatment before the tribunals and all other organs administering justice;

    ix.The MIGRATION ACT 1958 - SECT 5AA defines the Meaning of unauthorised maritime arrival

    (1)For the purposes of this Act, a person is an unauthorised maritime arrival if:

    …

    (c)       the person is not an excluded maritime arrival

    (3)       A person is an excluded maritime arrival if the person:

    …

    (c)       is included in a prescribed class of persons.

    x. The Migration Regulations

    Reg 1.15J        Excluded maritime arrival

    Indicates that ‘For paragraph 5AA(3)(c) of the Act, the following classes of persons are prescribed:

    (ii)       hold and produce an ETA-eligible passport;…

    Note 1: A person who is in one of these classes is an excluded maritime arrival and is not an unauthorised maritime arrival: see section 5AA of the Act.

    Note 2: Subregulation 1.11B(3) sets out which passports are ETA-eligible passports for the purposes of this regulation.

    xi.

    Reg 1.11B ETA-eligible passport

    1.11B (1) A passport is an ETA-eligible passport … if:

    (a)it is a valid passport of a kind specified by Gazette Notice as an ETA-eligible passport; and

    …

    (3)A passport is an ETA-eligible passport for the purposes of regulation 1.15J if it is a valid passport of a kind specified for paragraph (1)(a).

    xii.The Gazette Notice SGN 63, 1 March 2004 - Specification of foreign countries for the purposes of paragraph 3.03(3)(i) of the Migration Regulations 1994 set out 33 countries for the purposes of paragraph 3.03(3)(i) of the Regulations indicates the 33 countries which, along with New Zealand, were in 2013 the countries the citizens of which through the operation of s.5AA(3) of the Act would be excluded maritime arrivals.

    xiii.The Migration (IMMI 18/084: Specification of ETA Eligible Passports) Instrument 2018 indicates the 33 countries which, along with New Zealand, are relevantly the countries the citizens of which through the operation of s.5AA(3) of the Act would be excluded maritime arrivals.

  1. The matter was heard over two days on 18 and 23 August 2021.  The applicant had filed numerous affidavits prior to the hearing and his solicitor stated that he wished to read all of them.  I received the following affidavits by the applicant filed on:

    (c)26 December 2020;

    (d)8 May 2021;

    (e)6 July 2021;

    (f)29 July 2021;

    (g)18 August 2021; and

    (h)22 August 2021.

  2. The applicant’s solicitor also sought the opportunity to lead oral evidence from the applicant.  Counsel for the respondents indicated that if the applicant gave oral evidence, she would wish to cross-examine him.  Although the applicant appeared to have connected to the videolink hearing on 18 August 2021, it proved impossible to speak to him and the issue of oral evidence from him was not pursued. 

  3. The solicitor for the applicant also tendered the following documents which I received as exhibits:

    (a)A1 - Department of Home Affairs document – submission on Regional Processing Arrangements and attached new s 198AD(5) direction signed by the Minister for Home Affairs; and

    (b)A2 - “Nauru Review 2013: Executive Report of the Review into the 19 July 2013 Incident at the Nauru Regional Processing Centre” dated 8 November 2013.

  4. The respondents rely upon the affidavit of Martha Eid made on 12 August 2021.  Ms Eid deposes as to her duties as the applicant’s status resolution officer.  Ms Eid was cross‑examined on her affidavit.

  5. The respondents also rely upon the affidavit of Alana Sullivan made on 13 August 2021.  Ms Sullivan is the First Assistant Secretary, Regional Processing and Resettlement Taskforce within the National Resilience and Cyber Security Group of the Department of Home Affairs.  She deposes as to the procedure for the removal of transitory persons to PNG and Nauru.  She was cross-examined on her affidavit.

  6. I also received the court book in this matter filed on 15 March 2021. 

  7. After the hearing, on 14 September 2021 the respondents filed an affidavit by Ms Claudia Calabrese, solicitor concerning her instructions as to the readiness of the applicant to travel to PNG.  I have considered that affidavit.

    Other issues

  8. During the course of the hearing the parties’ representatives addressed two additional issues, namely, the interaction between the RDA and the Migration Act and the validity of a Ministerial Direction purportedly made under s 198AD(5) of the Migration Act, the Migration (Direction for Regional Processing Countries) Instrument 2021 Admin 21/301 (2021 Direction). At the conclusion of the trial on 23 August 2021, I made orders giving the parties the opportunity to make post hearing submissions on those issues. The applicant filed submissions and amended submissions on the RDA issue respectively on 29 August 2021 and 30 August 2021 and submissions on the validity of the 2021 Direction on 2 September 2021. The Minister filed further submissions on 13 September 2021.

    CONSIDERATION

    The detention issue and the question of removal

  9. I recently canvassed relevant legislative provisions in FDT20 v Minister for Home Affairs.[3]

    [3] [2021] FCCA 711

  10. Section 198B of the Migration Act confers on an officer (within the meaning of s 5(1)) a power to, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. A transitory person relevantly includes a person who was taken to a regional processing country under s 198AD.[4] Section 198AD provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom s 198AD applies to a regional processing country.

    [4] Migration Act, s 5(1)

  11. Until their repeal on 5 December 2019,[5] ss 198C and 198E of the Migration Act provided for the transfer to Australia of transitory persons who, in the opinion of two or more treating doctors, needed to be in Australia for appropriate medical or psychiatric treatment or assessment[6] and whose transfer to Australia was approved by the Minister under ss 198E(3) or 198F(4). If the Minister approved the transfer of a relevant transitory person to Australia under ss 198E or 198F, an officer was required, as soon as practicable, to bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.[7] Section 198C(3) provided for the transfer of members of the same family unit as persons brought to Australia for a temporary purpose.

    [5] By the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth).

    [6] Section 198E(1) and (2)

    [7] Section 198C(2)

  12. Where there are two or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, to the regional processing country specified in the direction.[8] 

    [8] Section 198AD(5)

  13. Depending on the circumstances, an obligation to remove a transitory person who has asked in writing to be removed to a regional processing country would be sourced in one of two statutory provisions:

    (a)if the person no longer needed to be in Australia for the temporary purpose – s 198AD(2) (which applies when a transitory person no longer needs to be in Australia for a temporary purpose, irrespective of whether the purpose has been achieved and whether the person has requested removal[9]); or

    (b)if the person still needs to be in Australia for the temporary purpose – s 198(1) (which applies only where s 198AD does not[10]).

    [9] See s 198AH(1A)

    [10] Section 198(11)

  14. In the present case, I have already made a declaration that s 198AH applies to the applicant. The respondents do not challenge that finding.

    General principles

  15. The respondents’ submissions helpfully traverse the general principles concerning detention. The permissible duration of a transitory person’s detention under the Migration Act was addressed by the High Court in Plaintiff M96A/2016 v Commonwealth of Australia.[11]  That case established that, putting aside any written request for removal, a transitory person’s detention in Australia is authorised:

    (a)initially, until he or she no longer needs to be in Australia for the temporary purpose for which he or she was brought here; and

    (b)then, until he or she is in fact removed to a regional processing country, which is to occur as soon as reasonably practicable.

    [11] (2017) 261 CLR 582

  16. The majority of the High Court in Commonwealth of Australia v AJL20[12] recently accepted at [61] that “ss 189 and 196 of the Act require the segregation of unlawful non-citizens… Because the evident intention of the Act is that an unlawful non-citizen may not, in any circumstances, be at liberty in the Australian community, no question of release on habeas can arise”. As I accepted in FDT20, the effect of AJL20 is that a writ of habeas corpus is unavailable to persons such as the applicant in the present case.[13]

    [12] [2021] HCA 21

    [13] cf, applicant’s written submissions filed on 10 August 2021 at [23], which refers to the “applicant’s case for relief by way of habeas corpus” despite that relief not being included in the most recent form of the application

  17. Further, in light of the reasoning in Plaintiff M96A/2016, even if a transitory person has not been removed as soon as reasonably practicable, their detention is authorised until they are in fact removed.  The reasons of the High Court stand against any conclusion that a transitory person’s detention becomes unlawful simply because their removal is not effected as soon as reasonably practicable after the temporary purpose for which they were brought here no longer requires them to be in Australia. Insofar as the applicant relies on such a contention as a basis to render his present detention unlawful, I accept that it is precluded by the reasoning in Plaintiff M96A/2016.  

  18. Put simply, until an applicant is in fact removed, the Migration Act requires that he or she be kept in detention. So much is clear from the following extract of the High Court’s reasons in Plaintiff M96A/2016,[14] which pertained specifically to transitory persons:

    In the case of a transitory person, therefore, the detention must continue until: (i) removal under s 198 (the first event); (ii) the beginning of the process of removal to a regional processing country under s 198AD (the second event); or (iii) the making by the Minister of a determination under s 46B(2), allowing an application for a visa, which is then made and granted.

    [14] At 593 [20]

  19. That analysis has been followed by single judges of the Federal Court on numerous occasions.[15] 

    [15] NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 (Beaumont J) (cited with approval in AJL20 at [5]); SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 at [10], [12]-[13] (Selway J); SHFB v Goodwin [2003] FCA 294 at [8]-[12], [23]-[25], [30] (von Doussa J); NAGA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 224 at [10]-[11], [64] (Emmett J); Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52 at [15], [36] (Whitlam J)

  20. There are Full Federal Court authorities to the same effect.  For example, in ASP15 v Commonwealth,[16] the Full Federal Court (Robertson, Griffiths and Bromwich JJ) stated at [40]:

    It follows that once a valid visa application has been made, unless and until a decision is made either to grant or refuse a visa, detention is authorised and required by s 196(1). This conclusion is consistent with the binding authority of Al-Kateb as to the nature of lawful detention and the meaning of s 196(1). … Such detention does not cease to be for the purpose of considering and determining an application for a visa because the necessary process has not been completed within the time required by the Migration Act, be that time period express or implied. If in fact a court determines that the process to make a visa decision has gone on for too long, it nonetheless remains detention for that purpose and is both validly authorised and required by s 196(1) of the Migration Act. The normal remedy is court action to compel a visa decision to be made, one way or the other.

    [16] (2016) 248 FCR 372

  21. The applicant’s recent novel argument in relation to the RDA appears, from the applicant’s submissions, to be to the effect that because there is a provision of the Migration Act that is specific to New Zealand citizens, non-citizens holding a passport who are ordinarily resident on Norfolk Island and persons included in a prescribed class,[17] the provisions of the Migration Act in relation to unauthorised maritime arrivals are unlawful.

    [17] Section 5AA(3)

  22. It is not entirely clear what “right” is relied on in support of this argument.  The applicant appears to rely on the “same rights” as afforded to three narrow groups. As was the case in NAEN v Minister for Immigration and Multicultural and Indigenous Affairs,[18] it is difficult to see how the applicant claims to have been denied equal treatment (see particularly [67]-[73] of that decision). These issues are explored further below.

    [18] [2003] FCA 216

  23. The applicant alleges that his detention became unlawful in October 2019 following a “personal choice of the Minister”.[19] As I accepted in FDT20 at [116] and [170], however, the Minister’s powers are non-compellable.

    [19] See applicant’s submissions filed on 10 August 2021 at [17]

    This specific case

  24. As noted above, the respondents rely in particular on two affidavits in this proceeding: from Ms Sullivan,[20] who deposes to steps taken to remove the applicant to PNG, and from Ms Eid,  

    [20] cf the affidavit of Ms Calabrese who recounts her instructions that the applicant is now fully vaccinated

  25. Ms Sullivan’s evidence details difficulties in facilitating removal to PNG at present, and Ms Sullivan also asserts that although the applicant had received a first vaccination against COVID-19, his removal is not currently practicable.  Under cross-examination Ms Sullivan held open the prospect of further refugee processing in Nauru should the applicant be returned there, but it was apparent that this was hypothetical.  The applicant’s return to PNG was also held open as possible but not currently in prospect.  Ms Sullivan resisted suggestions that Nauru would be unsafe for the applicant.

  26. Ms Eid confirms that at all relevant times she has held the belief that the applicant is an unlawful non-citizen.  Her knowledge of a range of other matters was tested under cross‑examination but I did not find it productive.

  27. Accordingly, though the respondents accept that an obligation to remove the applicant as soon as reasonably practicable arose in December 2020 (when the applicant requested removal), it has not been reasonably practicable to remove the applicant since that time. The applicant’s ongoing detention therefore remains lawful.

    The RDA issue

  28. I agree with and adopt the submissions of the Minister in relation to this issue.

  29. The applicant alleges that s 5AA(3) of the Migration Act is unlawfully discriminatory. The effect of that section is that narrow categories of persons are “excluded maritime arrivals” (those who hold a passport from New Zealand, or hold a passport and are ordinarily resident on Norfolk Island, or are in a “prescribed class of persons”).[21] Under s 5AA(1)(c), a person is an “unauthorised maritime arrival” if the person is not an “excluded maritime arrival”.

    [21] See Schedule 1 of the Migration (IMMI 18/084: Specification of ETA-Eligible Passports) Instrument 2018 available at <>

    Section 10(1) of the RDA provides that:

    If, by reason of, or of a provision of, a law of the Commonwealth or of a State or Territory, persons of a particular race, colour or national or ethnic origin do not enjoy a right that is enjoyed by persons of another race, colour or national or ethnic origin, or enjoy a right to a more limited extent than persons of another race, colour or national or ethnic origin, then, notwithstanding anything in that law, persons of the first-mentioned race, colour or national or ethnic origin shall, by force of this section, enjoy that right to the same extent as persons of that other race, colour or national or ethnic origin.

  30. The “prescribed class of persons” in s 5AA(3)(c) of the Migration Act includes persons who hold a passport from one of 33 specified countries and regions. These are countries and regions that have an “Electronic Travel Authority (ETA) Passport” scheme with Australia. In a recent submission (to the Inquiry into the Efficacy of Current Regulation of Australian Migration and Education Agents), the Department of Home Affairs indicated that: [22]

    The ETA is a key element in bilateral arrangements as Australia’s visa free/visa waiver facilitation option. A number of countries accept the ETA as affording their nationals the equivalent of ‘visa-free’ entry to Australia. In this way the ETA has led to reciprocal visa-free arrangements for Australians.

    (footnote omitted)

    [22] At < [6.6]

  31. The applicant’s claim (as developed orally on 23 August 2021 and in the applicant’s further written submissions) is that s 5AA(3) discriminates on the basis of national or ethnic origin, denying a “right” to all but those who are “excluded maritime arrivals”. Precisely what “right” the applicant relies on remains unclear. It appears to be broadly what the applicant described as “deluxe” treatment in, for example, avoiding the effect of s 46A of the Migration Act.

  32. As was the case in NAEN, it is difficult to see how the applicant claims to have been denied equal treatment.[23]

    [23] See particularly [67]-[73] of that decision

  33. It also hardly needs noting that the applicant’s RDA claim would affect a significant executive policy. In Thorpe v Commonwealth (No 3),[24] Kirby J noted that matters such as foreign relations turn on considerations unknown to courts.[25]

    [24] (1997) 71 ALJR 767 at 779

    [25] See recently CGP21 v Minister for Home Affairs [2021] FedCFamC2G 11 at [47]

  34. The applicant’s RDA claim is also at odds with authority binding on this Court.

  35. In Australian Medical Council v Wilson,[26] Sackville J accepted[27] that there was “powerful independent support for the conclusion that ‘national origin’, as used in s 9 of the [RDA], does not simply mean citizenship.”

    [26] (1996) 68 FCR 46

    [27] At 75

  36. In De Silva v Minister for Immigration and Multicultural Affairs[28] the Full Federal Court (Black CJ, Goldberg and Finkelstein JJ) considered a similar submission to that raised by the applicant.[29] “The only question of relevance to such review”, their Honours held, is whether the relevant “criterion is based on national origin.”[30] In that case it was not; the relevant criterion was based on the date an individual applicant arrived in Australia, and so the claim failed.

    [28] (1998) 89 FCR 502

    [29] At 510ff

    [30] At 512

  37. The respondents’ counsel drew the parties’ attention to the reasons of the Full Federal Court in Macabenta v Minister for Immigration and Multicultural Affairs[31] during a directions hearing on 20 August 2021 for related matters. The applicant’s representative addressed that decision in oral submissions on 23 August 2021 and again in the applicant’s further RDA submissions.

    [31] (1998) 90 FCR 202

  38. In Macabenta the Court stated at 210:[32]

    National origin may in some cases be resolved by a person's place of birth. In other cases it may be necessary to have regard to the national origin of a parent or each parent or other ancestors either in conjunction with the person's place of birth or disregarding that factor. If by reference to matters of national origin one can expose a racially-discriminatory law, then the Convention will have served its purpose. However, no Convention purpose is in any manner frustrated by drawing a distinction between national origin and nationality, the latter being a purely legal status (and a transient one at that).

    [32] At 210

  39. The binding effect of the Full Federal Court’s decision in Macabenta (about which, in the respondents’ submission, there is no question) was noted in Commonwealth of Australia v Stamatov,[33] AB v State of New South Wales,[34] Akhter v Minister for Immigration and Border Protection,[35] and Singh v Minister for Immigration and Border Protection.[36]

    [33] (1999) 94 FCR 341

    [34] (2005) 194 FLR 156

    [35] (2015) 292 FLR 433

    [36] (2016) 304 FLR 396

  40. In AB I concluded[37] “that ‘national origin’ has the same meaning whether the claim is one of direct or indirect racial discrimination. The meaning of the phrase is that given to it by the Full Federal Court in Macabenta.”

    [37] At 174 [52], following a detailed examination of authorities including Wilson, De Silva, Macabenta and Stamatov

  41. The applicant’s further RDA submissions suggest that the respondents rely on “fig leaf defences”. However, the argument that the distinction between national origin and nationality is not a meaningful one was expressly considered, and rejected, by the Full Federal Court in Macabenta.[38]

    [38] See, eg, 211, recording a submission from senior counsel for the appellant in that case that the distinction involved “an exercise in intellectual arrogance”

  42. The applicant’s further RDA submissions refer to two hypothetical persons. The respondents submit that the Court should not adjudicate controversies that are not before it.  As I noted during the hearing on 23 August 2021, it may be that a subsequent case involves a stateless person, which may be an appropriate vehicle for such an argument to be advanced. Additionally, it is also not clear how the hypotheticals in the applicant’s further RDA submissions assist the applicant’s argument. In fact, the two persons who “subsequently obtained”[39] a passport from another country (in the example, the United Kingdom) embody why there is a difference between national origin and nationality. These persons would become “excluded maritime arrivals” not because of where they were born but because of the passport they came to hold (and similarly, those who remained “unauthorised maritime arrivals” would do so not because of where they were born but because they did not hold a relevant passport).

    [39] At [33]

  1. This Court is bound by decisions including De Silva and Macabenta.  I accept that the effect of those cases is that the applicant’s RDA claim must fail.

    The validity of the 2021 Direction

    Applicant’s contentions

  2. Counsel was briefed to provide the written submissions on this issue on behalf of the applicant.[40]  The submissions support the claims for relief at [11(ii)-(v)] of the further amended application which relate to the 2021 Direction.[41]

    [40] Since submissions were prepared there have been media reports that PNG will in future no longer receive persons from Australia for regional processing.  Apart from the 2021 Direction potentially having more work to do in the future, I do not regard that development as impacting on this case

    [41] Affidavit of Ms Sullivan at [21] and page 45

  3. Claim 11(i) is not pressed in light of AJL20.  That appears to be the only concession made.

  4. As noted above, on 14 August 2013 the applicant was transferred to PNG for regional processing. The PNG authorities did not recognise the applicant to be a refugee.[42]

    [42] CB 57

  5. On 15 July 2014 the then Minister for Immigration and Border Protection made a direction under s 198AD(5) of the Migration Act which included a provision that transitory persons who were brought to Australia from PNG for a temporary purpose would be returned to PNG (2014 Direction).[43]

    [43] Affidavit of Ms Sullivan made on 13 August 2021 at [20] and Annexure AS-7, page 42

  6. As noted at the outset, on 29 March 2019 the applicant was brought to Australia from PNG under former s 198C as a “relevant transitory person” (as then defined under former s 198E(2) of the Migration Act) for a temporary purpose with the approval of the Minister under former s 198E.[44]

    [44] CB 63

  7. The temporary purpose was for the provision of medical treatment and assessment of psychiatric disorders and thrombocytopaenia.[45] 

    [45] CB 60-61

  8. Upon arrival the applicant was taken into detention under s 189(1) of the Migration Act as an “unauthorised non-citizen” as defined in s 14 of the Migration Act.

  9. As a transitory person the applicant was not entitled to apply for any kind of visa while in Australia.

  10. On 11 December 2020 the applicant made a written request of a departmental officer to return to PNG[46]. This request would trigger the obligation under s 198(1) of the Migration Act to remove the applicant as soon as reasonably practicable in the event that s 198AD(2) was not then already engaged by s 198AH(1A) of the Migration Act to like effect.

    [46] CB 128

  11. On 18 March 2021 a Medical Officer of the Commonwealth gave the opinion that from a clinical perspective the applicant had completed management of the specific temporary (medical) purpose for which he was brought to Australia.[47]

    [47] Affidavit of Ms Sullivan at [17] and Annexure AS-6, pages 40-41

  12. On 20 March 2021 the Acting Deputy Chief Migration Officer of PNG suggested that the movement of another medevac transitory person from Australia to PNG be delayed until further notice. Since that time the Department had not received from the PNG Government (as at the date of Ms Sullivan’s affidavit) the documentation which PNG required to receive the applicant. As a result the Department has been unable to process the applicant’s request for removal to PNG.[48]

    [48] Affidavit of Ms Sullivan at [7]–[8]

  13. On 25 March 2021[49], in the 2021 Direction, the Minister for Home Affairs purported to revoke the 2014 Direction (revocation decision) and to direct that those transitory persons brought to Australia from PNG for a temporary purpose who no longer needed to be in Australia be taken to Nauru when it was not reasonably practicable to take them back to PNG.[50]

    [49] The instrument ADMIN21/031 was incorrectly dated 23 March 2021 by the Minister for Home Affairs

    [50] Affidavit of Ms Sullivan at [21]

  14. This Court having declared on 7 July 2021 that s 198AH(1) applies to the applicant, it follows that the applicant presently faces removal under s 198AD(2), rather than s 198(1).

  15. As Ms Sullivan’s recent evidence is that it is presently not reasonably practicable to remove the applicant to PNG,[51] the applicant is liable to be taken to Nauru under the 2021 Direction.

    [51] Affidavit of Ms Sullivan at [19]

    Invalidity of 2021 Direction - public interest

  16. The applicant submits that the 2021 Direction is invalid for having been made on considerations contrary to the statutory criterion of “public interest” for the performance of the “duty” in s 198AD(5), these considerations being outside the subject matter, scope and purpose of the Migration Act, in particular the provisions of Division 8 of Part 2 of the Migration Act.

  17. The 2021 Direction was purportedly made under s 198AD(5).

  18. Section 198AD(8) provides the “only” statutory condition for the performance of the duty in s 198AD(5). This condition is that the Minister “thinks that it is in the public interest” to perform the duty.

  19. In Plaintiff M79/2012 v Minister for Immigration and Citizenship,[52] the High Court considered the term “public interest” as a statutory condition for the exercise of the power of the Minister under s 195A of the Migration Act to grant a visa to a person in detention:

    The keycondition for the grant of a visa of a particular class under s 195A(2) is that "the Minister thinks that it is in the public interest to do so". That involves, as this Court has previously said:

    "a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'".[53]

    [52] (2013) 252 CLR 336 at [39]

    [53] O'Sullivan v Farrer (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ; see also Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 86 ALJR 1019 at 1027 [30] per French CJ and Kiefel J; (2012) 290 ALR 616 at 625

  20. The condition for exercise of the duty in s 198AD(5), that the Minister thinks it is in the national interest, is said to be outside the subject matter, scope and purpose of Subdivision B of Division 8 of Part 2 of the Migration Act, which provides for “Regional processing”.

  21. This is said to be because the 2021 Direction would apply to take to Nauru those transitory persons like the applicant who had already been “regionally processed” in PNG but were later brought to Australia from PNG for a temporary purpose.

  22. That circumstance is quite different from those unauthorised maritime arrivals who have yet to be taken from Australia to regional processing countries for regional processing by which a person might obtain a right to stay in that country. The purpose of the power to temporarily take a person from the regional processing country to which a person had been taken is said to be incidental and subordinate to the purpose of the statutory scheme of regional processing.

  23. This statutory scheme providing for unauthorised maritime arrivals to be taken from Australia to a regional processing country for regional processing is found in Subdivision B Division 8 of Part 2 of the Migration Act (in which s 198AD is located).

  24. Subsections 4(1) and 4(5) of the Migration Act are to the effect that the purpose of this statutory scheme for the taking of unauthorised maritime arrivals from Australia to Regional Processing Countries for regional processing is to advance the object of the Migration Act “to regulate, in the national interest, the coming into and presence in, Australia of non-citizens”.

  25. Sections 198AA and 198AB concern those unauthorised maritime arrivals in Australia who are to be taken to designated countries for regional processing. Section 198AA sets out the “Reason for Subdivision” including addressing both people smuggling and the protection obligations Australia might have to those unauthorised maritime arrivals so taken.

  26. The considerations provided by s 198AB(3) for the Minister’s determination of the national interest for the designation of countries as Regional Processing Countries are said to be concerned with assurances given by the Regional Processing Countries for the non-refoulement and refugee assessment of the unauthorised maritime arrivals to be taken there.

  27. Section 198AD(5) imposes a duty on the Minister to make a direction that unauthorised maritime arrivals be taken to one specified regional processing country where there are two or more regional processing countries. In relation to a person like the applicant who has already been taken to a specified regional processing country on the direction of the Minister under s 198AD(5) for regional processing, the duty provided by that subsection for transfer to that particular regional processing country is already performed.

  28. The purpose of the power under s 198AD(5) to designate the particular regional processing country to which a transitory person like the applicant may be taken from Australia at the end of the temporary purpose is ancillary (ie incidental and subordinate) to the purpose of the power by which they were taken to that regional processing country in the first place. Because the purpose is ancillary, it is said to be outside the scope and purposes of the Migration Act for the Minister to direct that transitory persons who, like the applicant, have been regionally processed, and who were subject to the 2014 Direction when they were brought to Australia for a temporary purpose, now be taken to a different regional processing country.

  29. The applicant submits that the lack of a statutory duty upon the Minister to direct that a “PNG medevac transitory person”, who was taken from Australia to Nauru (sic), then be returned from Nauru to either Australia or PNG, supports the argument that the 2021 Direction was made on considerations outside the subject matter, scope and purposes of Division 8 of Part 2 of the Migration Act.

    Invalidity of 2021 Direction  - unreasonableness

  30. The applicant contends that the 2021 Direction is invalid for legal unreasonableness, it being arbitrary, capricious, an abandonment of common sense and lacking an evident and intelligible justification.

  31. The legal unreasonableness of the 2021 Direction is an “outcome focussed” conclusion, as opposed to legal unreasonableness which has arisen in the context of specifically identified jurisdictional errors. [54]

    [54] Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 350 [27]-351 [28] (French CJ), [72] (Hayne, Kiefel and Bell JJ); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437 at [44]; Minister for Immigration and Border Protection v Stretton (2016) 237 FCR 1 at [6] (Allsop CJ).

  32. In assessing the unreasonableness of the outcome of the exercise of the power in s 198AD(5), ie the 2021 Direction, the task of the Court is “to evaluate the quality of the decision, by reference to the statutory source of the power and thus, from its scope, purpose and objects to assess whether it is lawful. The undertaking of that task may see the decision characterised as legally unreasonable… because of specific identifiable jurisdictional error, or the conclusion or outcome reached, or the reasoning process utilised.”[55]

    [55] Stretton at [12] (Allsop CJ)

  33. As the Full Federal Court stated in Singh at [45]:

    In circumstances where no reasons for the exercise of power, or for a decision, are  produced, all a supervising court can do is focus on the outcome of the exercise of power in the factual context presented, and assess, for itself, its justification or intelligibility bearing in mind that it is for the repository of the power, and not for the court, to exercise the power but to do so according to law.

  34. The applicant submits that the considerable “area of decisional freedom” allowed the Minister under s 198AD(8) should not be construed as attracting a legislative sanction that the exercise of the power under s 198AD(5) be arbitrary or capricious or an abandonment of common sense.[56]

    [56] Li at [28]

  35. Relevant factual circumstances for the assessment of unreasonableness are said to be that:

    (a)the 2021 Direction would currently apply to all transitory persons, like the applicant, who had been originally taken from Australia to PNG for regional processing since 2012, whose processing had been completed, and who had been brought to Australia from PNG under either former s 198C or s 198B for a temporary purpose prior to 25 March 2021. At the time these persons were taken to Australia, the 2014 Direction applied to the effect that these persons would be returned to PNG when they no longer needed to be in Australia for the temporary purpose;

    (b)the effect of the 2021 Direction may be to frustrate voluntary return to PNG and impose involuntary removal to Nauru. This is particularly unreasonable in circumstances where the inability to return a person to PNG is temporary, eg for reasons of COVID-19. The exigencies of COVID-19 were known to the Minister at the time of making the 2021 Direction. It may be inferred the 2021 Direction was a response to these temporary difficulties of return to PNG;

    (c)after a transitory person from PNG had been taken to Nauru in accordance with the 2021 Direction, the respondents would be under no compellable statutory duty to transfer the person from Nauru back to either PNG or Australia; and

    (d)the 2021 Direction would not apply to persons who had requested return to PNG under s 198(1) to PNG in circumstances where they still needed to be in Australia. In Plaintiff M96A/2016 v Commonwealth of Australia[57] at [16] the High Court stated it would proceed on the basis of the Minister’s submission that “s 198(1), properly construed by reference to its consensual character, would not permit removal of an unlawful non-citizen to a place contrary to his or her wishes.” However the 2021 Direction would apply to transitory persons who had asked to be returned to PNG and improperly had not been returned, but in the meantime who no longer needed to be in Australia, like the applicant. This is because s 198(11) provides s 198 does not apply to unauthorised maritime arrivals to whom s 198AD applies.

    [57] (2017) 261 CLR 582

  36. The submissions on the ground of invalidity of the 2021 Direction for the miscarriage of the public interest criterion arising from the statutory framework of Subdivision B of Division 8 of Part 2 of the Migration Act are also relevant considerations for the Court’s separate assessment of unreasonableness.

    2021 Direction does not apply – accrued rights

  37. The applicant submits that, even if the 2021 Direction is valid, it does not apply to him.

  38. He submits that by operation of s 46 of the Acts Interpretation Act 1901 (Cth) (Acts Interpretation Act), both the 2014 Direction and the 2021 Direction were “instruments made under an Act”.[58] As a result s 7(2) of the Acts Interpretation Act applied to preserve the applicant’s right accrued under the 2014 Direction to be returned to PNG.

    [58] Or more accurately, that the Acts Interpretation Act applies to the Direction as if it were an instrument

  39. The Acts Interpretation Act is said to apply to the 2014 and 2021 Directions because they are instruments made under a statutory power which are not legislative instruments.[59] The Acts Interpretation Act applies to the 2014 and 2021 Directions as if they were sections of the Migration Act.[60]

    [59] See s 198AD(10)

    [60] Acts Interpretation Act, s 46(1)(a)

  40. Section 7(2) of the Acts Interpretation Act provides for the construction of the repeal of a part of an Act. This includes the repeal of the 2014 Direction by operation of s 46(1)(a) of the Acts Interpretation Act.

  41. Section 7(2)(c) provides the repeal of part of an Act “does not... affect any right or privilege, obligation, or liability acquired, accrued or incurred under the affected Act or part”.

  42. The accrued rights of the applicant included those arising under the 2014 Direction.

  43. These accrued rights included that the applicant would be returned to PNG as soon as reasonably practicable after he no longer needed to be in Australia.

  44. This is a substantial right, distinguishing this case from Jagroop v Minister for Immigration and Border Protection.[61]

    [61] [2016] FCAFC 48

  45. Upon the construction of s 198AD provided by s 7(2)(c) of the Acts Interpretation Act the applicant’s right to be returned to PNG in the 2014 Direction is preserved, despite the repeal of that Direction.

    2021 Direction does not apply – s 198AH(1A)(b) and unlawful detention – Racial Discrimination Act

  46. The applicant further submits that, because s 198AH(1A)(b) of the Migration Act requires a person to be lawfully detained for s 198AD to apply to them, the 2021 Direction did not apply to the applicant as the applicant was not lawfully detained under s 189 at the time the 2021 Direction was made.

  47. The applicant relies on his other oral and written submissions on the illegality of his detention made subsequent to the Court’s declarations on 7 July 2021, including with respect to the operation of the RDA.

  48. The statutory power for the making of the revocation decision in the 2021 Direction is s 33(3) of the Acts Interpretation Act which provides:

    Power to make instrument includes power to vary or revoke etc. instrument

    (3)Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

  49. Because of the operation of s 33(3) of the Acts Interpretation Act, the power to revoke the 2014 Direction would be found in s 198AD of the Migration Act under which the 2021 Direction was purportedly made.

  50. Section 198AH(1A) provides when s 198AD will apply to a transitory person such as the applicant, including that under s 198AB(1A)(b) a transitory person is covered by s 198AD if the person is detained under s 189 of the Migration Act.

  51. This implicitly means “if the transitory person is lawfully detained under s 189”.

  52. It is said to follow from the unlawfulness of the applicant’s detention (according to the applicant’s previous submissions) at the time the 2021 Direction was made, that by operation of s 198AH(1A)(b) the 2021 Direction does not apply to the applicant, even assuming the 2021 Direction was validly made.

    Resolution

  53. I prefer and adopt the respondents’ submissions in relation to this issue. 

  54. The application seeks, in numbered ground 11, four declarations[62] in relation to the 2021 Direction, a copy of which appears at Annexure AS-8 to the affidavit of Ms Sullivan.

    [62] As noted above, the proposal at (i) is not pressed following the High Court’s decision in AJL20

  55. The declarations sought include that the 2021 Direction is either:

    (a)“contrary to law” on the basis that it is unreasonable (at ii) or “made upon considerations outside the subject matter, scope and purpose of Division 8 of Part 2” of the Migration Act (at iii), and therefore invalid; or

    (b)inapplicable on the basis that the revocation of a previous direction “does not apply to the applicant” (at iv.) or “by reason of s 198AH(1)(b) and the illegal detention of the applicant on 25 March 2021” (at v.).

  56. These four claims for relief are addressed in turn.

    Unreasonableness

  57. The claim for relief at [11(ii)] of the application alleges that the 2021 Direction is “contrary to law for unreasonableness and invalid.”

  58. An assessment of the reasonableness of an administrative decision necessarily has regard to the statutory context within which that decision was made.[63] 

    [63] See, eg, Li at 349 [24] (French CJ), 364 [67] (Hayne, Kiefel and Bell JJ); Stretton at 4-5 [7], 5 [9] (Allsop CJ)

  59. Here, s 198AD(8) is emphatic that:

    The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

  1. As six Justices of  the High  Court explained  in Pilbara  Infrastructure Pty  Ltd v Australian Competition Tribunal:[64]

    It is well established that, when used in a statute, the expression “public interest” imports a discretionary value judgment to be made by reference to undefined factual matters. As Dixon J pointed out in Water Conservation and Irrigation Commission (NSW) v Browning, when a discretionary power of this kind is given, the power is “neither arbitrary nor completely unlimited” but is “unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view”. It follows that the range of matters to which the NCC and, more particularly, the Minister may have regard when considering whether to be satisfied that access (or increased access) would not be contrary to the public interest is very wide indeed. And conferring the power to decide on the Minister (as distinct from giving to the NCC a power to recommend) is consistent with legislative recognition of the great breadth of matters that can be encompassed by an inquiry into what is or is not in the public interest and with legislative recognition that the inquiries are best suited to resolution by the holder of a political office.

    (footnotes omitted and emphasis in original)

    [64] (2012) 246 CLR 379 at 400-401 [42] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ)

  2. Further, in assessing the Minister’s satisfaction that the 2021 Direction was in the public interest, it is important to recall the High Court’s statements in Minister for Immigration and Border Protection v SZVFW[65] concerning legal unreasonableness. The “test for unreasonableness is necessarily stringent” and “the courts will not lightly interfere with the exercise of a statutory power involving an area of discretion”.[66]  There is “an area within which the decision-maker has a genuinely free discretion which resides within the bounds of legal reasonableness”.[67]  The test of unreasonableness does not involve the Court determining for itself how the power should have been exercised.[68] A court “should not interfere with an administrator’s exercise of a discretion just because the court would have exercised the discretion in a different way”.[69]

    [65] (2018) 264 CLR 541

    [66] SZVFW at 551, [11], [13] (Kiefel CJ); see also at 564, [52] (Gageler J)

    [67] SZVFW at 577, [97] (Nettle and Gordon JJ)

    [68] SZVFW at 566, [58] (Gageler J)

    [69] SZVFW at 574, [86] (Nettle and Gordon JJ)

  3. The breadth of the statutory criterion points against the applicant’s argument having merit, having regard to the operation of the 2021 Direction and the reasons for its making. It was made to ensure that unauthorised maritime arrivals can be taken to a regional processing country in circumstances where it is not reasonably practicable to take them to PNG. Maintaining a requirement that they be taken to PNG would, for those detainees, have tended to frustrate the obvious purpose of s 198AD(2). The practical effect of the 2021 Direction is to shorten the time such detainees spend in immigration detention in Australia. Seeking to shorten that period is rational, and is not arbitrary or capricious or lacking in common sense. It is not arbitrary or capricious for the Minister to think it in the public interest to achieve this object.

  4. The 2021 Direction is tailored to this object. It does not require a person to be taken to Nauru (instead of PNG, where they were previously taken) when it is reasonably practicable to take them to PNG. It only requires them to be taken to Nauru when it is not reasonably practicable to take them to PNG. It applies only where the choice is between detention in Australia and taking them to Nauru; it does not seek to interfere with return to PNG where that can be achieved. Again, it is apparent how the Minister might reasonably think it in the public interest to make a direction of this kind, and if reasonable minds could disagree, it is as well to recall that “[t]he requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker”.[70]

    [70] Li at 351 [30] (French CJ)

  5. None of the “factual circumstances” in the applicant’s 2021 Direction submissions demonstrate legal unreasonableness in the Minister’s view that the 2021 Direction was in the public interest. The matters particular to the applicant upon which the applicant’s submissions focus could not affect the reasonableness of the Minister’s view that making the 2021 Direction was in the public interest generally. That the 2021 Direction would affect a person who needed to be removed pursuant to s 198AD(2), but not necessarily a person who still needed to be in Australia for a temporary purpose but had requested removal to a country other than Nauru pursuant to s 198(1), similarly has no bearing on the reasonableness or lack thereof of the 2021 Direction. I have already found that the applicant no longer needs to be in Australia for the temporary purpose for which he was brought here. Accordingly (and as the applicant himself notes), s 198 does not apply.

    “Public interest” – alleged non-compliance with s 198AD(8)

  6. The claim for relief at [11(iii)] of the application, as explained at [19] of the applicant’s further submissions, alleges that the 2021 Direction was made “on considerations contrary to the statutory criterion of ‘public interest’”. The applicant’s submissions on this point centre on two propositions, neither of which is established.

  7. First, it is asserted that “it is outside the objects, scope and purposes of the Act for the Minister to direct that transitory persons such as the applicant who have been regionally processed and who were subject to the 2014 Direction … now be taken to a different [Regional Processing Country]”.[71] It is unclear why. In circumstances where the applicant does not contest the possibility that transitory persons who have been “regionally processed” might nonetheless be brought to Australia for temporary purposes, the provisions of the Migration Act apply identically to them and persons who have not yet been “regionally processed”.

    [71] At [31] of the applicant’s further submissions filed on 2 September 2021

  8. Secondly, it is asserted that “[i]n relation to a person like the applicant who has already been taken to a specified [Regional Processing Country] on the direction of the Minister under s 198AD(5) for regional processing, the duty provided by that subsection is already performed”.[72] But the Minister’s duty under s 198AD(5) to make a direction specifying to which, of two or more, regional processing countries a person is to be taken must be performed from time to time as occasion requires under s 33(1) of the Acts Interpretation Act.

    [72] At [30] of the applicant’s further submissions filed on 2 September 2021

  9. As the applicant has noted, s 198AD(8) expressly provides that the only condition for the performance of the duty under s 198AD(5) “is that the Minister thinks that it is in the public interest to direct” in that way. The 2021 Direction is signed by the Minister and expressly provides that the Minister was “acting under subsection 198AD(5)… thinking it is in the public interest to do so”. There is no basis for any suggestion that the Minister’s performance of the duty was anything other than proper.

    Accrued rights

  10. The claim for relief at [11(iv)] of the application contends that s 7(2) of the Acts Interpretation Act applies to the 2021 Direction by reason of s 46 of that Act, with the consequence that the 2021 Direction does not apply to the applicant.

  11. It is appropriate to direct attention to the nature of any accrued “right” or “obligation”. As at 25 March 2021, the relevant duty (as claimed for instance in the applicant’s 2021 Direction submissions at [46]) was to take the applicant to a regional processing country under s 198AD(2) of the Migration Act, as directed by the Minister under s 198AD(5) when there were two such countries. The duty should be understood as a duty to take a person to whom s 198AD applies to whichever regional processing country is directed from time to time, rather than as a duty fixed for all time upon one particular regional processing country. The position might be different if the applicant had been found to be a refugee by PNG, and accepted for re‑settlement there, but this is not the case.

  12. After a person has been brought to Australia from a regional processing country for a temporary purpose, it is entirely possible that that country would cease to be a regional processing country. Then, the person could only be taken to a different regional processing country. That statutory scheme could not be altered by the terms of the previous direction. Thus, neither the Migration Act nor the previous 2014 Direction provides a foundation for either a right in the applicant, or an obligation upon officers of the Commonwealth, to return the applicant to the regional processing country from which he was brought to Australia.

  13. More generally, it is improbable that Parliament could have intended such a confined understanding of the duty. That would deny the Commonwealth flexibility in its removal of unauthorised maritime arrivals and increase the prospects of such a person being kept in immigration detention for longer in Australia. Neither outcome is likely to have been intended by Parliament.

    Detention

  14. The claim for relief at [11(v)] of the amended originating application contends that the 2021 Direction could not apply to the applicant because, as at 25 March 2021, his detention under s 189 was unlawful (and s 198AD(2) only applies, by reason of s 198AD(1), to a person lawfully detained under s 189(1)).

  15. The plain effect of AJL20 is that the applicant’s detention has at all relevant times been lawful.

  16. The applicant also relies on the RDA claim in support of this claim for relief.[73] That claim must also fail for the reasons addressed above.

    [73] eg, Applicant’s Direction Submissions, [50]

    CONCLUSION

  17. The applicant has failed to persuade me that he should receive any of the relief he seeks in the application as amended.  I will order that the application be dismissed.

  18. I will hear the parties as to costs.

I certify that the preceding one hundred and thirty-two (132) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate:

Dated:       27 October 2021

SCHEDULE OF PARTIES

SYG 2998 of 2020

Respondents

Fourth Respondent:

SECRETARY, DEPARTMENT OF HOME AFFAIRS

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Cases Citing This Decision

3

FJU20 v Minister for Home Affairs [2022] FedCFamC2G 427
FKP20 v Minister for Home Affairs [2022] FedCFamC2G 396
FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15
Cases Cited

31

Statutory Material Cited

4

FDT20 v Minister for Home Affairs [2021] FCCA 711
Benbrika v Minister for Home Affairs [2023] HCA 33
Commonwealth v AJL20 [2021] HCA 21