FJS20 v Minister for Home Affairs

[2021] FCCA 754

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

1. 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.

2. 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 time refusing or failing to remove the applicant to Nauru pursuant to s 198AD(2), the [respondents] acted [unlawfully].

   6Further or in the alternative, the [respondents] failed to take any steps to remove the applicant to PNG as requested by the applicant. 

   7There was accordingly no constitutional purpose to support the exercise of the s 189 and s 196 custodial detention power.

   [1] the application as amended was relied upon for the purposes of the hearing, although it does not appear to have been filed

3. The following ground is advanced in the amended application:

   1.The detention is unlawful because the [respondents are] 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 Papua New Guinea.

   ii.The applicant signed an agreement for medical transfer by which the Australian Government agreed that the applicant would return to PNG after his medical treatment.

   iii.The applicant made a written request to the Minister for removal to Papua New Guinea as the relevant regional processing country on 11th December 2020.

   iv.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.

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

   vi.From the time when the applicant objectively no longer needed to be in Australia the Minister had an obligation to remove him pursuant to s.198AD(2).

   vii.The Respondent’s decision to keep the applicant in held custody was inimicable to the purpose for which the applicant was brought to Australia and kept in Australia.

   viii.As a result of the decision of the Respondent to keep the applicant in held custody by not making a decision on the Residence Determination referral, the applicant no longer need to be in Australia from the date of referral of the s.197AB application for the temporary purpose for which he was brought to Australia.

4. In addition to the court book filed on 15 March 2021, I received as evidence the following material:

   (a)an affidavit by the applicant made on 19 December 2020 to which is annexed a photograph of a written request by the applicant made on 11 December 2020 to be removed to Papua New Guinea (PNG);

   (b)an affidavit made by the applicant on 15 March 2021 in which he states that he attempted suicide on 5 March 2021 and recites a message he sent to his lawyer on the same day.  The applicant also deposes as to circumstances in Somalia (where the applicant is from) and his personal circumstances;

   (c)a further affidavit by the applicant made on 26 March 2021 in which he recites his immigration history in Australia, PNG and Nauru.  He deposes that he was found to be a refugee in PNG and had registered for possible resettlement in the USA in 2017, although he had not received a successful outcome.  The applicant also deposes that at the end of 2018, he transferred from PNG to Nauru, where he experienced a deterioration in his mental health;

   (d)a further affidavit by the applicant made on 19 March 2021 and filed on 30 March 2021 in which he states that he is unwilling to return to Nauru because of a fear of being attacked as a refugee and because of asserted racism;

   (e)an affidavit by Melissa Abrahams made on 8 April 2021. Ms Abrahams is the applicant’s status resolution officer and she gives evidence as to medical reports concerning the applicant. Annexure MA-2 to her affidavit is a copy of the most recent clinical advisory team opinion for the applicant, dated 15 March 2021, which states that the management of the specific temporary medical purpose for which the applicant was brought to Australia is not complete. Ms Abrahams ventures the opinion that the applicant still needs to be in Australia for the purpose of treating his mental health issues;

   (f)a further affidavit by the applicant made on 11 April 2021 to which is annexed a photograph of a written note from the applicant to Serco referring to a problem the applicant has with the US resettlement process; and

   (g)an affidavit by Alana Sullivan made on 9 April 2021.  Ms Sullivan is an official in the Department of Home Affairs and gives evidence about the process for the removal of transitory persons to PNG and the removal steps taken in relation to the applicant’s request for removal to PNG. 

5. 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

6. 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

7. 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]

8. 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]

9. 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

10. Having read the applicant’s own evidence and heard his oral evidence, I share the opinion that the applicant’s mental health is unstable and he requires further treatment.  I accept that the applicant still needs to be in Australia for the purpose of treating his mental health issues. 

11. It is entirely possible that the continuing detention of the applicant is an exacerbating factor in relation to his mental health, particularly in circumstances where he sees others being released into the community.  His hopes of finding resettlement in the USA, following the acceptance of his refugee claims, have also not been realised.

12. Although the applicant submitted a request to “go back to PNG” on 11 December 2020,[7] that request is somewhat incongruous given that the applicant wanted to be moved from PNG to Nauru and was so transferred.  He is now adamant that he does not wish to return to Nauru and indeed, states that he wishes to “raise a refugee application against being sent back to Nauru”.[8] 

    [7] Court Book, page 5

    [8] applicant’s affidavit made on 19 March 2021 at [4]

13. The Minister submits that in these circumstances the power or duty under s 198(1) is not enlivened. It might, on the other hand, be argued that, removal to Nauru being impracticable because of the applicant’s fear of returning there (and his claim for protection against that fear), the possibility of removal to PNG requires consideration. Ms Sullivan gives evidence in relation to enquiries made for that purpose. While the applicant was found fit to travel to PNG, the medical assessment about the applicant concluded that he still needed to be in Australia for mental health treatment.

14. I accept the Minister’s submission that the relevant inquiry is whether the applicant still needs to be in Australia for the relevant temporary purpose.  I have accepted the medical opinion on that question, to which the answer is “yes”. 

15. As the applicant still needs to be in Australia for the temporary purpose, s 198AD does not apply.[9] The power of removal under s 198AD(2) is thus not enlivened. The applicant has requested removal, which enlivens the power under s 198(1), but removal is not currently practicable. It follows, in my view, that the applicant’s claim for declarations that his detention is unauthorised and therefore unlawful, and orders for his release from detention, has not been established.

    [9] see ss 198AH(1) and (1A)

16. Neither are the additional claims for relief in the amended application made out. 

    CONCLUSION

17. The applicant has failed to establish his claim for any of the relief sought in the amended application.  I will order that the application as amended be dismissed.

18. I will hear the parties as to costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Dated:       4 August 2021

SCHEDULE OF PARTIES

SYG 3006 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS