FJO20 v Minister for Home Affairs

[2021] FCCA 1497

FEDERAL CIRCUIT COURT OF AUSTRALIA

FJO20 v Minister for Home Affairs [2021] FCCA 1497

File number(s):	SYG 3001 of 2020
Judgment of:	JUDGE DRIVER
Date of judgment:	12 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
Legislation:	Migration Act 1958 (Cth), ss 189, 198AD
Cases cited:	FDT20 v Minister for Home Affairs [2021] FCCA 711
Number of paragraphs:	13
Date of last submission/s:	6 July 2021
Date of hearing:	Decided without oral hearing
Place:	Sydney
Solicitor 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
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

SYG 3001 of 2020

BETWEEN:

FJO20

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:	12 AUGUST 2021

THE COURT ORDERS THAT:

1.The application filed on 29 December 2020 is dismissed.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By an application filed on 29 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. The applicant also seeks costs.

2. 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 the relevant regional processing country as required by ss.198(1) and 198(1A) and s.198AD(2) of the Migration Act 1958;

   Particulars.

   i.The applicant was subject of a written direction by the Minister under s.198AD(5) of the Migration Act 1958 designating a relevant regional processing country as Nauru.

   ii.The applicant made a written request to the Minister for removal to Nauru as the relevant regional processing country on 9 December 2020 and 13th December 2020.

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

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

3. The application was listed for a final hearing before me in the period 12-16 April 2021 but was not reached.  By agreement with the parties on 16 April 2021, it was decided that I would deal with the matter on a final basis on the papers.

4. In addition to the court book filed on 15 March 2021, I have before me the following evidence:

   (a)affidavits by the applicant made on 17 December 2020, 19 March 2021, a further affidavit made on 19 March 2021 with an annexure;

   (b)affidavits by the applicant’s solicitor made on 13 April 2021 with annexures and with further annexures filed the same day, and 19 April 2021 with annexed country information and UNHCR[1] detention guidelines;

   (c)the affidavit of Patricia Metzlar made on 9 April 2021;

   (d)an unfiled affidavit by Noeline Harendran made on 15 April 2021, to which are annexed traveller guidelines; and

   (e)a video deposition by the applicant which I have not viewed as it could not be opened.

   [1] United Nations High Commissioner for Refugees

   CONSIDERATION

5. The legal issues in this case, relating to the relevant provisions of the Migration Act and the interpretation of them, have been dealt with in numerous other proceedings in the High Court, the Federal Court and this Court (most recently in FDT20 v Minister for Home Affairs[2]).  The legal principles do not need to be repeated here.  The questions to be resolved are factual ones bearing upon the application of the principles. 

   [2] [2021] FCCA 711

6. I accept from the applicant’s affidavits that he made at least two requests to be returned to Nauru between 9-11 December 2020 and 13 December 2020-29 January 2021.  I also accept that the applicant sought Ministerial intervention detailing his medical situation and environmental needs as a result of self immolating with burns to 51 per cent of his body.  The applicant anticipates lifetime medical treatment being required and does not accept that the medical treatment is for a temporary purpose.  On the other hand, in his most recent affidavit, the applicant deposes that he must withdraw his request for removal to Nauru because of his need for ongoing medical treatment.  I accept that evidence.

7. Ms Metzlar is the applicant’s status resolution officer. She deposes that the applicant arrived at Christmas Island by boat as an authorised maritime arrival on 3 August 2013. On 6 September 2013 the applicant was taken to Nauru under s 198AD of the Migration Act. He was transferred to Australia for medical treatment on 24 August 2019.

8. Based on her review of departmental records, Ms Metzlar considers that the applicant still needs to be in Australia for the purpose of treatment of his medical issues.  In particular, the applicant continues to receive intensive rehabilitation as an outpatient and is due for further scar management surgery.  Annexed to Ms Metzlar’s affidavit is a clinical advisory team opinion for the applicant dated 16 March 2021 which states that the applicant has not completed management of the specific medical purpose for which he was brought to Australia. 

9. Ms Metzlar deposes that the applicant is not an Australian citizen, is not of Aboriginal descent, does not hold a valid visa and is therefore an unlawful non citizen and, as a result, must be detained by reason of s 189 of the Migration Act. I accept that evidence.

10. I find that the applicant still needs to be in Australia for ongoing medical treatment.  He has withdrawn his request to be returned to Nauru, consistently with his need for ongoing medical attention.

11. It follows that the respondents have not yet come under any duty to remove the applicant from Australia.  It follows that the applicant is not entitled to the relief he seeks. 

    CONCLUSION

12. I will order that the application be dismissed.

13. I will hear the parties as to costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       12 August 2021

SCHEDULE OF PARTIES

SYG 3001 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS