FEDERAL CIRCUIT COURT OF AUSTRALIA
FJS20 v Minister for Home Affairs [2021] FCCA 754
File number(s): SYG 3006 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. Legislation: Migration Act 1958 (Cth), ss.198, 198AD, 198AH Cases cited: FDT20 v Minister for Home Affairs [2021] FCCA 711 Number of paragraphs: 18 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 3006 of 2020 BETWEEN: FJS20
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 ORDERS THAT:
1.The amended application the subject of leave granted on 15 April 2021 is dismissed.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
By an application filed on 29 December 2020, the applicant sought a declaration that his detention was not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and was therefore unlawful. He also sought an order that he be released from detention forthwith and sought costs. The grounds in support of the application were essentially the same as those in numerous other applications filed at around the same time by so called “medevac detainees”. In essence, it was alleged that the applicant’s detention was unlawful because the respondents are unwilling or unable to remove him to a relevant regional processing country as required by ss 198(1) and 198(1A) and 198AD(2) of the Migration Act.
When the matter came before me for a final hearing on 15 April 2021, the solicitor for the applicant sought leave to file and rely upon an amended application. After hearing argument, I granted that leave.[1] The final orders sought are the same as in the original application but the following additional proposed orders (presumably declarations) were added:
3The failure to remove the applicant pursuant to the s 198AD(5) Direction as soon as reasonably practicable exhausted the application of the s 198AD(5) direction, such that the power is spent and its application to the applicant is an abuse of process.
4The disengagement of the applicant from the s 198AD(5) direction disengages the applicant from the operation of the regional processing provisions, including any suspended operation of s 198AD of the Migration Act 1958.
5In refusing or failing to make a residence determination, and at the same…
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- Case
- [2021] FCCA 754
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the applicant had established grounds for the relief sought in his amended application. This involved considering the applicant's history, including his arrival as an unauthorised maritime arrival in 2013, his transfer to Manus Island and then to Nauru under section 198AD of the Migration Act, and his subsequent transfer to Australia for medical treatment in 2019. The court also had to assess the applicant's current mental health condition, as described by medical professionals.
Driver J noted that the legislative provisions and legal principles relevant to the case had been extensively considered in prior proceedings. Having regard to the submissions and the evidence, including an affidavit detailing the applicant's arrival and transfers, and a medical officer's opinion describing the applicant's mental health as "precarious" and unstable, the court found that the applicant had failed to establish his claim for any of the relief sought.
Consequently, the court ordered that the amended application be dismissed and heard the parties on the issue of costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Two Applications in a Case were filed on 17 March 2021 and 29 March 2021. The purpose of those interlocutory applications was to secure an injunction restraining the respondents from removing the applicant to Nauru under s 198AD and a writ of habeas corpus requiring the immediate release of the applicant from immigration detention. I have not dealt with those Applications in a Case for several reasons. First, the principal application was heard on a final basis on 15 April 2021. Secondly, the Minister’s legal representatives stated that there was no intention on the part of the respondents to remove the applicant to Nauru. Thirdly, noting that judgment was reserved in this matter and in a number of other matters, the Minister for Home Affairs gave an undertaking on 2 June 2021 not to remove the applicant (and other applicants in which judgment had been reserved by me) until judgment is delivered.CONSIDERATION The legislative provisions bearing upon the issues to be resolved in this case have been dealt with at length in earlier proceedings in the High Court, the Federal Court and this Court. Likewise, the legal principles to be applied have been the subject of extensive judicial commentary in all three courts, in this Court recently by me in FDT20 v Minister for Home Affairs.[2] I do not need to repeat them. I have nevertheless had regard to the written and oral submissions of the parties concerning those provisions and principles and the submissions made specifically bearing upon the facts in the present case. [2] [2021] FCCA 711 I accept from the affidavit of Ms Abrahams that the applicant arrived in Darwin by boat as an unauthorised maritime arrival on 11 November 2013. On 15 November 2013, he was taken to Manus Island in PNG under s 198AD of the Migration Act and was then transferred to the Nauru regional processing centre on 29 November 2013.[3] [3] Affidavit of Ms Abrahams at [6] Further, on 3 September 2019, the applicant was transferred to Australia under s 198B of the Migration Act for medical treatment, primarily in relation to mental health needs of the applicant arising from a dissociative disorder and complex post traumatic stress disorder.[4] [4] Affidavit of Ms Abrahams at [7] Further, I have no reason to dispute the medical opinion of the Medical Officer of the Commonwealth dated 15 March 2021 in which the medical officer states that the applicant had been admitted to a psychiatric unit in Nauru where he was diagnosed with an adjustment disorder. There was subsequently an improvement in his condition but since that time his mental health proved to be unstable, requiring anti-psychotic medications on a number of occasions for further episodes. On 1 March 2021, the applicant reported to an IHMS[5] mental health nurse increased levels in anxiety following the departure of fellow detainees to the community and expressed fear in relation to his situation which continues to impact upon his mental health. The medical officer described the applicant’s condition as “precarious”.[6] [5] International Health and Medical Services[6] Annexure MA-2 to the affidavit of Ms Abrahams