FJU20 v Minister for Home Affairs - [2022] FedCFamC2G 427

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
FJU20 v Minister for Home Affairs [2022] FedCFamC2G 427

File number(s): SYG 3008 of 2020

Judgment of: JUDGE DRIVER

Date of judgment: 15 August 2022

Catchwords: MIGRATION – medevac applicant – applicant arrived as a child but initially treated as an adult – whether processing error invalidating decision to send the applicant to regional processing country considered – applicant brought to Australia for family reunion – applicant claiming a fear of return to both Pakistan and Nauru – applicant found to be a refugee – whether the applicant entitled to a non‑refoulement assessment prior to any return to Nauru considered

Legislation:
Administrative Appeals Tribunal Act 1975 (Cth) s 44

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5

Federal Circuit Court of Australia Act 1999 (Cth)

Immigration (Guardianship of Children) Act 1946 (Cth) ss 4AAA, 6, 6A, 8, 11A

Judiciary Act 1903 (Cth) s78B

Migration Act 1958 (Cth) ss 4AA, 5, 195A, 197AB, 198, 198AD, 198AE, 198AH, 198C, 198E, 198F, 198G, 476, 477, 499

1 Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 134, 139

Cases cited:
AOU21 v Minister for Home Affairs [2021] FCAFC 60

AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212

ASP15 v Commonwealth (2016) 248 FCR 372

CLM18 v Minister for Home Affairs [2019] FCAFC 170

Commonwealth v AJL20 [2021] HCA 21

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

Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213

FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15

FDT20 v Minister for Home Affairs [2021] FCCA 711

FGS20 v Minister for Home Affairs [2021] FCCA 753

FJE20 v Minister for Home Affairs [2022] FCAFC 45

FJH20 v Minister for Home Affairs [2021] FCCA 1480

FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88

FKP20 v Minister for Home Affairs [2022] FedCFamC2G 396

Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235

McHugh v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs (No 3) [2020] FCA 843

Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29

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

Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144

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

Sadiqi v Commonwealth (No 3) [2010] FCA 596

Secretary, Department of Health & Community Services v JWB & SMB(“Marion's Case”) [1992] HCA 15

SHFB v Goodwin [2003] FCA 294

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

WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50

WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55

Division: Division 2 General Federal Law

Number of paragraphs: 120

Date of last submission/s: 21 June 2022

Date of hearing: Decided without oral hearing

Place: Sydney

Solicitors for the Applicant: Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration

Counsel for the Respondents: Ms C Roberts

Solicitors for the Respondents: Australian Government Solicitor
ORDERS

SYG 3008 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
FJU20

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:

15 AUGUST 2022

THE COURT ORDERS THAT:
1.The applicant is granted leave to file and rely upon his amended application lodged on 21 May 2022 and reproduced at [19]-[20] of these reasons for judgment.
2.The time for any application under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for the purposes of that application is extended up to and including 27 December 2020.
3.The application, as amended, is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order 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

The applicant is said to be a transitory person who was brought to Australia for a temporary purpose in 2019 under now-repealed s 198G of the Migration Act 1958 (Cth) (Migration Act) for family reunion purposes.[1]
[1] signed approval at Court Book (CB) 35, transfer agreement at CB 40
The applicant arrived in Christmas Island in late 2013.[2]
[2] see, eg Supplementary Court Book (SCB) at 1
The applicant was initially understood to have indicated that he was born in 1988, but subsequently indicated that he was born in 1998.[3]
[3] see, eg SCB 3, 18
The applicant was referred for an age determination on 17 September 2013, for reasons including that his appearance, demeanour and behaviour did not appear consistent with that of a 24 year-old.[4]
[4] SCB 24
The applicant participated in an “age determination interview” on 19 September 2013, on Christmas Island.[5] The applicant then indicated that he was born in 1996.[6]
[5] SCB 19
[6] SCB 21
The assessment report records that an interpreter participated.[7] The assessor concluded that the applicant’s behaviour was consistent with that of a person over the age of 18,[8] and found the applicant not to have been credible in giving his history.[9]
[7] SCB 26ff
[8] SCB 27
[9] SCB 28, 29, 31
A letter sent to the applicant on 26 September 2013, informing him that his date of birth would be recorded as 31 December 1994, is at SCB 36.
The applicant was transferred to Papua New Guinea (PNG) in October 2013, pursuant to s 198AD of the Migration Act.[10]
[10] CB 22, affidavit of Nicole Larkin affirmed 20 September 2021 at [7]
On 18 December 2013, a Director from the Department of Immigration and Border Protection advised a Transfers Officer at the Manus Island Offshore Processing Centre that a birth certificate recording the applicant’s date of birth as 4 November 1996 had been assessed as genuine.[11]
[11] SCB 63, a copy of the birth certificate is at SCB 59
An assessment was conducted in February 2014 to determine whether the applicant was under the Minister’s guardianship pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act).[12] It was determined that as the applicant entered Australia with the intention of living with a relative over the age of 21 years he was not an “IGOC minor”.[13]
[12] SCB 67-69
[13] SCB 70
A copy of the assessment completed by an assessor (seniority APS5) and reviewed by a reviewer (seniority EL1) is at SCB 72 – 77.
The applicant was transferred to Nauru on 13 February 2014.[14]
[14] affidavit of Ms Larkin at [9]
The applicant met his wife in Nauru (there is no evidence of the two being legally married but there is no dispute that the pair have been in a de facto relationship for some time[15]. In these reasons I refer to the applicant’s partner as his wife). The applicant’s wife was transferred to Australia for the termination of a pregnancy in November 2017,[16] but elected to proceed with the pregnancy after arriving in Australia and delivered her and the applicant’s child in April 2018.
[15] see eg CB 19
[16] eg CB 23
The applicant was transferred to Australia on 17 May 2019.[17]
[17] signed approval at CB 35, transfer agreement at CB 40
A residence determination to allow the applicant to reside in the community was made on 13 August 2021.[18]
[18] Annexure NL-3 to the affidavit of Ms Larkin
I was told during oral argument that the applicant’s wife is a party to a proceeding in the High Court that was filed in November 2017. That application seeks various forms of relief including restraining the Commonwealth respondents in that case from removing the applicant’s wife to Nauru or any other regional processing country. I was told that the matter is yet to be listed for hearing and remains sitting out of the Court list, while other matters in the caseload to which this application belongs are being progressed.
These proceedings began on 27 December 2020. A proposed further amended application dated 21 September 2021 was annexed to the applicant’s initial submissions in these proceedings. The respondents do not press any objection to that further amended application. The applicant sought the following forms of substantive relief:
(a)declarations that the decision to take the applicant to PNG was “affected by jurisdictional error” as the applicant was, in fact, a minor at the time and that a later decision that he was not a minor was also erroneous;
(b)a declaration that the subsequent transfer of the applicant to Nauru was “affected by jurisdictional error”;
(c)a declaration that the applicant “is not and never was a transitory person”;
(d)“prohibition” of the application of certain sections of the Migration Act; and
(e)costs.
The applicant no longer presses for a finding that there is an obligation to effect his removal from Australia, or for his release from detention.
CURRENT JUDICIAL REVIEW APPLICATION
The application has been through numerous iterations over two years. In its most recent form lodged on 21 May 2022 (for which the applicant would require leave) the relief sought is:
1.Declaration that the s.198AD(5) direction and original removal decision to take the applicant to Papua New Guinea for regional processing was affected by jurisdictional error:
(i)as the assessment of risk to the applicant upon first being taken to PNG (leading to his subsequent transfer to Nauru as a transitory person) was made on an incorrect understanding that the applicant was an adult when he was in fact a child;
(ii)as the decision was affected by conflict of interest as the Respondents were in the position of Parens Patriae with respect to the applicant
(iii)as s.4AA of the Migration Act was violated through failure to apply the principle that detention of a minor should only be as a last resort; and
(iv)the Minister did not make a personal consent under s.6A of the Immigration (Guardianship of Children) Act 1946 for the removal of the applicant as a child to the regional processing country.
2.Declaration that the subsequent s.198AD(5) direction by the Minister and the subsequent removal decision by an officer of the Department to take the applicant to Nauru was affected by jurisdictional error.
3.Declaration that the determination that the applicant was not an IGOC minor was affected by jurisdictional error.
4.        Declaration that the Applicant is not and never was a transitory person.
5.        Prohibition of application of the s.46B bar.
6.Prohibition of application of the s.198AD(5) direction with respect to the applicant.
7.Mandamus for the conduct by the Fourth Respondent of a non-refoulement assessment for the Applicant and his immediate family members to hear and determine their non-refoulement claims concerning Nauru according to law, for the purpose of informing the First and Second Respondents in determining whether to consider the possible exercise [of] the Ministerial Intervention powers, under s.198AE or s.195A to obviate or exempt, the liability of the Applicant for removal to the regional processing country under s.198AD(2) and the s. 198AD(5) direction.
8.Prohibition on removal of the Applicant to Nauru under s.198AD(2) pursuant to the s. 198AD(5) instrument, pending the conduct of a non-refoulement assessment for the purpose of informing the First and Second Respondents for the consideration of the possible exercise of the Ministerial Intervention powers under s.195A and s.198AE of the Migration Act 1958.
9.Declaration that the respondents owed a duty of care to limit the time the Applicant was separated from his family within the Immigration Detention system after he was brought to Australia on 17th May 2019 and until he was placed with his family on or around 17th August 2021.
10.Declaration that the First and Second Respondents made personal procedural decisions to consider the exercise of the s.197AB, s.198AE, and s.195A powers, and that the applicant’s time in detention was extended for these purposes. [CLM18 v Minister for Home Affairs [2019] FCAFC 170]
11.Declaration that the applicant and his family are being held in detention for the purpose of consideration of the s.198AE or s.195A powers.
12.[deleted]
13.Declaration that the unreasonable length of separation from his wife and child while in held detention, breached the Respondent’s duty of care to place the applicant with or near to his family within a reasonable time and as soon as possible after his transfer to Australia, within the immigration detention system.
14.The Respondents jointly and severally pay damages for breach of the duty of care, including aggravated and exemplary damages for the breach of the applicant’s rights to family unity, and the resulting mental anguish and anxiety suffered by the applicant.
15.The Respondents jointly and severally pay damages for breach of the duty of care, including aggravated and exemplary damages for the failure to implement a system for the timely assessment of non-refoulement obligations with respect to the regional processing country and the provision of the results of such enquiry to the first and second respondents, to inform the consideration of the exercise of the s.198AE or s.195A powers to exempt or obviate the liability of the applicant and his family to removal to Nauru and detention for that purpose.
16. Interest pursuant to s 76 of the Federal Circuit Court of Australia Act 1999.
17.      Costs
The grounds in this form of the proposed application lodged on 21 May 2022 are:
1.The Minister’s s.198AD(5) directions and subsequent decisions to transfer the Applicant to first PNG on 2nd October 2013 and then Nauru on 13th February 2014 were affected by jurisdictional error.
i.The Applicant was an unaccompanied minor when he arrived in Australia and was negligently, unlawfully, and incorrectly assessed as being an adult.
ii.The ongoing detention was contrary to the principles of s.4AA of the Migration Act 1958 requiring detention only as a last resort.
iii.The Minister was the legal guardian for the applicant, though initially unaware of the applicant’s status as a child.
iv.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.
iv.Through the making of the s.198AD(5) direction the applicant became liable to ‘regional processing’.
v.At the time of the designation, Papua New Guinea was implementing mandatory detention for transferees from Australia.
vi.The first direction under s.198AD(5) of PNG as the relevant regional processing country was infected by jurisdictional error through failure to assess the applicant as a child.
vii.In consequence the relevant non-refoulement obligations including under the Convention on the Rights of the Child, were not considered;
ix.The decision was affected by conflict of interest as the Respondents were in the position of legal guardian (Parens Patriae) with respect to the applicant and Minister administering s.198AD of the Migration Act 1958.
x.The applicant was subject of a subsequent written direction by the Minister under s.198AD(5) of the Migration Act 1958 designating Nauru as the relevant regional processing country.
xi.At the time of the designation, Nauru was implementing mandatory detention for transferees from Australia.
xii.The making of the second s.198AD(5) direction that the applicant be removed to Nauru was materially infected with the jurisdictional error arising from the incorrect age determination as a result of which the first s.198AD(5) direction had been made.
xiii.The decision to make a subsequent s.198AD(5) direction may not have occurred if the applicant had been determined to be a child when he first came to Australia as there is a realistic possibility that he would have been granted a bridging visa and so not subject to s.198AD of the Migration Act 1958.
xiv.s.4AA of the Migration Act was violated through failure to apply the principle that detention of a minor should only be as a last resort.
xv.The circumstance of the Applicant being in immigration detention in order to so be transferred to PNG in the first instance in 2013, and to Nauru in February 2014 again as a child, occurred as a result of the failure to apply s.4 of the Migration Act 1958 which requires that detention of children be only as a last resort.
xvi.The Applicant was not given a fair opportunity to raise non-refoulement claims with respect to PNG or Nauru prior to being subjected to the s.198AD(5) direction or being transferred to the regional processing countries, as a child.
xvii.The Minister did not make a personal consent under s.6A of the Immigration (Guardianship of Children) Act 1946 for the removal of the applicant as a child to the regional processing country.
2.The determination by the Respondents that the Applicant was not an Immigration (Guardianship of Children) Act 1946 (IGOC) minor was affected by jurisdictional error
Particulars:
a.The Applicant did not have legal advice in the interview in which he was determined to not be an IGOC minor
b.The Applicant was not afforded procedural fairness concerning the process by which it was determined that he was not an IGOC minor
c.The Applicant was not notified of the IGOC process, not notified of the IGOC decision, and not notified of his rights of merits and judicial review of the IGOC negative determination.
d.The IGOC negative determination was a jurisdictional fact for the s.198AD(5) determinations and the removal decision.
3. The respondents unreasonably failed to place the Applicant with or near to his wife and child within the immigration detention system under s.197AB,
i. [deleted]
ii. failed to make the placement determination within a reasonable time
iii.failed to take into consideration Australia’s international obligations respecting the right to family unity,
iv.failed to take into consideration the best interests of the Applicant’s child, including the right to family unity.
v.The fourth respondent failed to make a referral to the Minister within a reasonable time or to ensure that the Minister was informed of Australia’s international obligations in respect of the requirement to protect the Applicant’s right to family unity.
4. Mandamus for the conduct of a non-refoulement assessment with respect to Nauru and Prohibition against removal to Nauru, and prohibition and injunction against the sending of him and his family to Nauru in the absence of such assessment should be made because:
i.The Respondents have failed to implement a system for consideration of non-refoulement obligations, and other factors under the s.198AE PAM3 Guidelines, to inform the First and Second Respondents in assessing whether to exempt or obviate the liability of the Applicant and his family to removal to Nauru under s.198AD(2), by the exercise of Ministerial Intervention powers under s.198AE or s.195A.
ii.In assessing whether and if so when the applicant would be taken to a regional processing country under s.198AD(1) and s.198AD(2) of the Migration Act 1958, or whether in the alternative the s.195A or s.198AE power would be exercised, it is the First and Second Respondent’s obligation to consider, the Applicant’s non-refoulement claims with respect to Nauru, including those relating to his wife and child, and to have regard to Australia’s international obligations with respect to the applicant.
iii.In considering whether it is in the Public Interest to exercise the Ministerial Intervention powers under s.195A or s.198AE to obviate or exempt the Applicant’s liability for removal to Nauru under s.198AD(2) and the s.198AD(5) instrument, the consideration of the Applicant’s non-refoulement claims is a mandatory consideration under the s.198AE Guidelines.
iv.A personal procedural decision has been made with respect to the Applicant, as to consider whether to obviate or exempt his liability for removal to Nauru by the exercise of the s.195A or s.198AE Ministerial Intervention power. [CLM18 v Minister for Home Affairs [2019] FCAFC 170]
v.The first respondent in making the s.198AD(5) instruments making the Applicant liable for removal to Nauru, made a personal procedural decision to consider whether to exercise the Ministerial Intervention powers under s.198AE and s.195A to obviate or exempt liability of the applicant for removal to Nauru under s.198AD(2) of the Migration Act 1958. [CLM18 v Minister for Home Affairs [2019] FCAFC 170]
vi.The second respondent in bringing the Applicant to Australia made a personal procedural decision to consider whether to exercise the Ministerial Intervention powers under s.198AE and s.195A to obviate or exempt liability of the applicant for removal to Nauru under s.198AD(2) of the Migration Act 1958. [CLM18 v Minister for Home Affairs [2019] FCAFC 170]
vii.Adhering to Australia’s international obligations requires the conduct [of] a non-refoulement assessment to consider the Applicant’s claims against refoulement to Nauru, including under Article 33 of the Refugees Convention, and the Convention on the Rights of the Child.
viii.In the consideration and assessment of his claims against refoulement, the Applicant has a right to be heard due to the significance to the Applicant of the consideration of his non-refoulement claims.
ix.In assessing whether to exercise the power under s.198AE or s.195A, the First and Second Respondents have a responsibility to be informed of all the facts relevant to the factors in the s.198AE policy guidelines.
x.The Fourth Respondent has a duty to inform the first and second respondents about Australia’s non-refoulement obligations concerning the Applicant and his family with respect to Nauru, and the unsuitability of removal there, in order that the Minister’s consideration of possible exercise of the s.198AE Ministerial intervention power would be informed by relevant information under the s198AE Guidelines.
THE EVIDENCE AND SUBMISSIONS

In addition to the court book filed on 15 March 2021 and the supplementary court book filed on 13 September 2021, I received as evidence affidavits by the applicant and his wife and the affidavit of Nicole Larkin made on 20 September 2021. A further affidavit by the respondents’ solicitor, Elizabeth Warner Knight, was filed on 21 June 2022. I have considered it for completeness, to the extent that the documents annexed to it augment those in the court books.
I also received as evidence the following exhibits:
·A1 Case assessment and biodata interview;
·A2 Best Interests of the Child assessment;
·A3 Section 198AE Guidelines.
The applicant also relies upon a video deposition made on 24 April 2021. I have viewed that deposition. I accept that the applicant is a Hazara man from Quetta, Pakistan and that he came to Australia as a child. He was confirmed to be a child whilst in PNG. He has spent time in detention in PNG, Christmas Island, Nauru and mainland Australia. He is afraid to return to both Pakistan and Nauru. He has been assessed as being a refugee. He is now married with a child in Australia and resides in the community under a residence determination made by the Minister. He is thus in community detention and theoretically at risk of being taken back to Nauru.
The application was initially dealt with as one of a substantial number of medevac applications. Ultimately, the only applications in the medevac cohort in my docket which proceeded to a final hearing (or in this case, determination on the papers) were those where the applicants remained in (community) detention, and thus were exposed to the possibility of removal or return to an offshore processing country. I have dealt with this application separately because of the claims made by the applicant concerning his treatment while he was a child.
CONSIDERATION
Applicant’s contentions
The applicant contends that the Court has jurisdiction to deal with the relief sought by him in respect of breaches of duty of care (as an associated matter).[19]
[19] see ss 134 and 139 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)
The applicant also seeks judicial review of an age determination in 2013, which the applicant asserts was incorrect. The applicant also seeks judicial review of a 2014 Immigration (Guardianship of Children) Determination (IGOC) under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and under the Court’s associated jurisdiction.
The applicant also seeks judicial review of the decision under s 198AD(5) of the Migration Act to send him to Nauru because of:
(a)the decision being infected by the prior designation of the applicant as a transitory person and hence the s 198AD(5) Nauru decision was made with the understanding that the applicant was a transitory person and was already subject to the regional processing scheme. If the Minister had assessed the applicant as not a transitory person, then a different decision could have been made in respect of s 198AE, and the actual s 195A referral made in March 2014 but subsequently withdrawn;[20]
(b)the conflict of interest of the Minister in the position of parens patriae not considering whether to act in the child’s best interests;
(c)the IGOC negative determination being affected by jurisdictional error, meaning that the Minister could not determine whether he was the statutory guardian of the applicant under the IGOC and consequently the failure of the Minister to personally consent to the removal infected the decision with jurisdictional error; and
(d)the respondents’ failure to consider the applicant’s non-refoulement claims and matters within the knowledge of the Minister about conditions in Nauru for transferees and including children, to inform consideration of s 198AE, the exemption from regional processing power; and
(e)the short seven day period between the IGOC negative determination on 6 February 2014 and the removal to Nauru on 13 February 2014[21] depriving the applicant of any opportunity for review of the IGOC negative decision.
[20] Affidavit of Ms Larkin, page 8
[21] Affidavit of Ms Larkin, page 10
The applicant seeks declaratory relief that he was denied procedural fairness, and further was denied the right to be notified of the decision, in relation to the determination that he was not an IGOC Act minor.[22] The determination that he was not an IGOC Act minor, meant that the Department proceeded on the basis that there was no legal impediment to him being sent to Nauru. The applicant was not notified that the matter was an issue, which was a procedural fairness requirement. His detention was extended for the purpose of consideration of this issue and hence procedural fairness attached to its determination. He was not told he had a right to seek legal advice on the issue and not notified that he had the right to have his aunt speak to the matter; he was not notified that he had a right to ask for an alternative guardian to be made of a state or territory Minister to avoid conflict of interest, and he was not notified of the IGOC negative decision itself.[23] The applicant submits that had he been so notified, he could have sought judicial review of the decision, as indeed is being sought now.
[22] SCB 70, IGOC status assessment, pages 72-77
[23] WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50
It is submitted by the applicant that the IGOC negative decision was not a migration decision. That is said to be supported by the pathways for review of the IGOC Act under s 11A, including that an affected person may apply to the Minister for review, and further, that the person may apply to the Administrative Appeals Tribunal (AAT) for review of a reviewable decision. Any decision of the AAT would itself be subject to judicial review under the ADJR Act. The point is said to be that an IGOC determination is a substantive decision in its own right conferring rights and liabilities independently of the Migration Act. The fact that it has consequences under the Migration Act does not convert the IGOC negative decision into a migration decision.
Thus this Court’s jurisdiction in respect of the IGOC negative decision arises from s 5 of the ADJR Act (as opposed to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), which provides for appeal to the Federal Court), because the failure to provide notification of the IGOC negative decision to the applicant deprived him of the right to seek merits review of the IGOC negative decision by the Minister on review, or by the AAT under s 11A of the the IGOC Act.
It is said to be for the Court to determine whether the IGOC negative decision was not conduct preparatory to the removal decision and hence a migration decision itself. Though it had consequences under the Migration Act, and was directly antecedent to the removal decision, that is not determinative of it being a migration decision. If it was not a migration decision it is nonetheless within the associated jurisdiction of the Court as it was a pre-requisite for the s 198AD(5) direction being made to take the applicant to Nauru.
The IGOC negative decision is said not to be a migration decision, thus it would not be subject to the requirement for an extension of time under s 477 of the Migration Act.
Further the IGOC negative decision is subject to the jurisdiction of this Court under s 5 of the ADJR Act (although in that regard an extension of time is necessary and is sought).
Parens patriae
The applicant further submits that, irrespective of the IGOC determination, the Minister stood in the position of parens patriae as the responsible Minister of the Crown.[24] The applicant’s claim that the Minister was in the position of legal guardian for him and therefore was in conflict of interest at the time of making the s 198AD(5) direction(s) relating to the applicant, to require him to be removed first to PNG purportedly as an adult, and subsequently to Nauru for regional processing, applies irrespective of the IGOC determination. That is to say, it is a separate issue. The applicant submits that the Minister proceeded on the incorrect understanding that the finding that he was not an IGOC minor meant that the Minister was not the applicant’s legal guardian at the time he was sent to Nauru.
[24] Secretary, Department of Health & Community Services v JWB & SMB(“Marion's Case”) [1992] HCA 15
Further, the Minister is said to have been in conflict of interest as the legal guardian of the applicant at all times he was in immigration detention in Australia, and, in a residual sense at all times when he was in a regional processing country as a minor and still subject in a limited way to the provisions of the Migration Act, including the powers, ultimately exercised, to bring him to Australia from PNG, and not used to bring him back to Australia while he was a minor in Nauru. The applicant contends that the purposes of the Migration Act as defined in s 4AA that detention of a minor should be a last resort cannot be obviated simply by removing the child to a regional processing country. Doing so is said to have been not in the child’s best interests, a primary requirement for consideration by the Minister, and was undertaken in the context of a failure to undertake a non-refoulement assessment, or to give him an opportunity to raise non-refoulement claims. The applicant contends that in making the [first] s 198AD(5) determination applicable to the applicant in 2013, the Minister was uninformed that the applicant was a child, and there was no valid IGOC determination. The second s 198AD(5) (Nauru) direction to send the applicant to Nauru in 2014 is said to have been made without a valid IGOC determination, and was applied to the applicant without consideration of either conflict of interest of the Minister, the best interests of the child, or consideration of non-refoulement obligations with respect to him.
The Minister is the legal guardian for unaccompanied minors in the jurisdiction. In Marion’s Case, Mason CJ, Dawson, Toohey and Gaudron JJ stated at [68] and [71]:
The nature of the welfare jurisdiction
As already mentioned, the welfare jurisdiction conferred upon the Family Court is similar to the parens patriae jurisdiction. The history of that jurisdiction was discussed at some length by La Forest J. in Re Eve (108) (1986) 2 SCR., at pp 407-417; (1986) 31 DLR (4th), at pp 14-21. His Lordship pointed out (109) ibid., at p 410; p 16 of DLR that "(t)he Crown has an inherent jurisdiction to do what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined." In Wellesley v. Duke of Beaufort, Lord Eldon L.C., speaking with reference to the jurisdiction of the Court of Chancery, said(110) (1827) 2 Russ 1, at p 20 (38 ER 236, at p 243):
"(I)t belongs to the King, as parens patriae, having the care of those who are not able to take care of themselves, and is founded on the obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown round them."
….
As already explained, the parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves; it includes infants as well as those of unsound mind..
In WACB v Minister for Immigration and Multicultural and Indigenous Affairs,[25] Gleeson CJ, McHugh, Gummow and Heydon JJ stated at [74]:
The primary judge drew attention, in his concluding remarks, to apparent departures in the practices concerned from the guidelines published by the United Nations High Commissioner for Refugees concerning the way that claims to refugee status by unaccompanied children, such as the appellant, should be handled. Amongst other things, the procedures in these guidelines call, in effect, for an adult guardian to look after the interests of such a child:
8.3 Not being legally independent, an asylum-seeking child should be represented by an adult who is familiar with the child's background and who would protect his/her interests. Access should also be given to a qualified legal representative.
[25] [2004] HCA 50
The applicant complains that the failings of the Minister to afford the legal rights of the applicant in relation to the IGOC process from start to finish, and the failure to notify him of the IGOC negative outcome and the failure to notify him of his rights of review infect the decision with error. Further the removal of the applicant to Nauru within seven days of the IGOC negative decision is said to have destroyed his rights of review without procedural fairness.
The applicant submits that, while the Minister has the responsibility of the parens patriae jurisdiction, this Court has the power to intervene where there is a conflict of interest arising from the Crown’s statutory powers under the Migration Act, and the Crown’s non-statutory powers and obligations parens patriae. Thus, the Nauru removal decision carried into effect on 13 February 2014 was infected with jurisdictional error.
Detention placement
Though the applicant does not seek a declaration that s 198AD(2) is engaged, such orders have been sought and made in medevac cases in the exercise of this Court’s jurisdiction under s 476(1).[26]
[26] see for example in FGS20 v Minister for Home Affairs [2021] FCCA 753 at [25] and FJH20 v Minister for Home Affairs [2021] FCCA 1480 at [1] and by the Full Federal Court in AOU21 v Minister for Home Affairs [2021] FCAFC 60
The failure to notify the applicant prior to bringing him to Australia, or in the course of his detention, that he would not be able to reunite with his family for over two years from May 2019 to August 2021 is said to have been unconscionable. The placement of the applicant in a different state to his wife and child who remained in community detention, is said to be unsupported by any justification whatsoever and defeated the purpose of the Migration Act which was sought to be achieved in bringing him to Australia. The Minister is said to have failed to have regard to the principle of family unity that the applicant should have been placed in a detention facility with access to his wife and child. In terms, the Minister is said to have failed to provide a safe place of detention, and caused emotional distress to the applicant and his wife and child. The applicant seeks declaratory relief that the bringing to Australia of the applicant to reunite with his family imported a requirement to facilitate family reunion, which was unfulfilled by the respondents.
The applicant’s wife was brought here for a temporary medical purpose which was completed at or shortly after the birth of the couple’s child. The applicant’s wife and daughter, and therefore also the applicant, remain liable to removal to Nauru, subject to reasonable practicability for removal.[27] That remains the case even if it would never be likely to be reasonably practicable to remove them.
[27] AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212
The applicant seeks declaratory and tortious relief in respect of the circumstances surrounding the decision to bring the applicant to Australia because of the failure to implement systems to minimise the time that he would be separated from his family, or to give him notice of this. He was not notified that he would be subject to ongoing separation from his family and an indefinite and unreasonably long period of extended detention. Further, the Minister’s Department is said to have failed to implement appropriate systems to respond to the pandemic in such a way as to minimise unnecessary separation of the family.
Failure to undertake a non-refoulement assessment to inform the Minister in the possible consideration of whether to exercise the s 198AE power
As the applicant remains in immigration detention (albeit community detention), if a transitory person as defined in the Migration Act, he, and his wife and child, remain subject to liability for removal to a regional processing country under s 198AD(2), and under the s 198AD(5) direction, that is to Nauru, whether individually or as a family.
Against that liability to removal under s 198AD the applicant seeks relief by injunction and prohibition. The failure of the Minister to undertake a non-refoulement assessment or otherwise to assess the inappropriateness to send the applicant and his family back to Nauru frustrates the scheme of the Migration Act which requires informed consideration by the Minister as to whether to consider exercising the dispensing power under s 198AE or s 195A of the Migration Act to exempt or obviate the family from liability to removal to Nauru. The applicants have raised claims for protection and the failure of the Minister to undertake such assessment is said to mean that she remains blind to the circumstances of the applicant and Australia’s international obligations. Accordingly, the Minister is said to be unable to make informed decisions under the Migration Act and this caused the extension of the detention of the applicant in held detention, and continues to cause or contribute to the detention of the family in community detention.
Prohibition and injunction against the Secretary of the Department of Home Affairs on removal of the applicant to Nauru in the absence of a non-refoulement assessment is said to arise both under the pre-removal clearance requirements as per CLM18 v Minister for Home Affairs,[28] and is said to be within the jurisdiction of the Court. Equally prohibition and injunction against the Secretary of the Department on removal of the applicant to Nauru in the absence of the relevant information being placed before the Minister to inform possible exercise of the Ministerial intervention power under s 198AE is said to be not excluded from the jurisdiction of the Court. This is said to be because, there having been no referral to the Minister, the exclusion of jurisdiction is not engaged. Accordingly, each of those applications are said to be within the jurisdiction of the Court, and not excluded from the jurisdiction of the Court.[29]
[28] [2019] FCAFC 170
[29] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213
In respect of the s 197AB residence determination, the matter having been referred to the Minister in May 2019, is said to have been a personal procedural decision, however on 7 April 2020 it was apparently returned for re-drafting and from 7 April 2020 to 3 December 2020 there is said to have been “extreme and unreasonable” delay in making a referral to the Minister. That is said to be not excluded from the jurisdiction of the Court as in that period there was no personal procedural decision of the Minister.
Insofar as the failure to refer the applicant’s case to the Minister within a reasonable time shows failure to implement reasonable processes to ensure the reuniting of the family, the applicant seeks declaratory relief and relief by way of damages. The failure to refer to the Minister is not excluded from the jurisdiction of the Court.[30]
[30] ibid
The applicant seeks declaratory relief in relation to the detention placement subsequent to his medevac transfer to Australia. The applicant was not notified prior to being brought to Australia that he would be subject to extended detention and separation from his family. Accordingly, his consent to being brought to Australia cannot be taken as consent to what in fact occurred.
Section 198AE Migration Act requirements and guidelines
The applicant challenges the failure to conduct non-refoulement assessments, at any time, from 2013 for each of the first two removals, and to the present in respect of the current threatened removal, and therefore the failure to inform the Minister in the consideration of the possible exercise of the s 198AE power to exempt the applicant from liability to removal under s 198AD(2). This is said to be an obligatory hedging duty which has not been undertaken and this has meant that the administration of the Migration Act has not been complied with.

The applicant contends that, in assessing whether and, if so, when he would be taken to a regional processing country under s 198AD(1) and s 198AD(2) of the Migration Act, it was and remains the respondents’ obligation under s 198AE guidelines to bring to the attention of the Minister any non-refoulement obligations, including claims of the applicant, and matters in the knowledge of the Minister, and that such be determined in accordance with relevant country information.
The applicant submits in particular, with respect to the PNG removal, that the respondents did not inform the applicant that he would be detained in an (adult) detention facility, such information being within the knowledge of the Minister but not the applicant. That did not obviate the obligation to adhere to the international obligation by such being brought to the attention of the Minister for consideration of exercise of the s 198AE exemption.
The applicant submits that, similarly, when he was to be taken to Nauru as an unaccompanied minor, the risks to the applicant in Nauru, and general country information about the serious risks to asylum seekers and child refugees in particular, were not put before the Minister for consideration of the exercise of the s 198AE power. In this way the scheme of the Migration Act is said to have been frustrated.
The applicant contends that adhering to Australia’s international obligations requires that in determining whether and, if so, when the applicant would be taken to a regional processing country under s 198AD of the Migration Act, as a refugee and for each member of his family, who has raised non-refoulement claims against Nauru must be conducted.
The applicant submits that the Department has an obligation to refer such information to the Minister for consideration, and in the course of that process, the applicant would not be available for removal to Nauru.[31]
[31] WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [115]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 at [16]; s 499 of the Migration Act
The Department is said to have an obligation to bring relevant matters (such as impediments to removal) to the attention of the Minister.[32] The failure to bring non-refoulement obligations to the attention of the Minister is said not to be itself a migration decision and therefore is not excluded from jurisdiction of this Court, as it is no decision at all.[33] What is therefore sought from the Court is prohibition and injunction on the Department on removing the applicant to Nauru in the absence of the conduct of a non-refoulement assessment in order that the Minister be informed as to whether to consider exercising the s 198AE power.[34]
[32] Davis
[33] ibid
[34] ibid
The applicant contends that the failure to conduct such non-refoulement assessment has frustrated the Migration Act by making the Minister unaware of Australia’s non-refoulement obligations, and further of the inappropriateness of removing the applicant and his family to Nauru, has resulted in the extension of detention.
Respondents’ contentions
This Court canvassed relevant legislative provisions in FDT20 v Minister for Home Affairs.[35]
[35] [2021] FCCA 71
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.[36] 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.
[36] Migration Act, s 5(1)
Until their repeal on 5 December 2019,[37] 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 (ss 198E(1) and (2)) 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: s 198C(2). Section 198C(3) provided for the transfer of members of the same family unit as persons brought to Australia for a temporary purpose.
[37] By the Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth)
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: s 198AD(5).
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 person has requested removal: see 198AH(1A)); 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: 198(11)).
General principles
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.[38] 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.
[38] (2017) 261 CLR 582
The majority of the High Court in Commonwealth v AJL20[39] 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 this Court 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.
[39] [2021] HCA 21
Further, the respondents contend that, in light of the reasoning in Plaintiff M96A, even if an applicant 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, it is precluded by the reasoning in Plaintiff M96A.
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 (at 593 [20]), 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.
That analysis has been followed by single judges of the Federal Court on numerous occasions.[40]
[40] NAES v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 2 at [6]-[7] (Beaumont J); 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)
There are Full Federal Court authorities to the same effect. For example, in ASP15 v Commonwealth,[41] 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.
[41] (2016) 248 FCR 372
Ministerial directions
The application seeks a declaration that directions issued under s 198AD(5) were “affected by jurisdictional error”. The respondents submit that 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 directions was in the public interest generally.
A similar issue was raised (and addressed more completely by the parties in written submissions) in other recent proceedings, and addressed in detailed submissions filed by the respondents in those proceedings.
This specific case
The respondents rely on an affidavit from Ms Larkin, Status Resolution Officer and the affidavit of Ms Warner Knight.
Ms Larkin’s evidence confirms that the applicant currently resides in the Australian community pursuant to a Ministerial residence determination made under s 197AB of the Migration Act, and that Ms Larkin continues to hold a belief that the applicant is an unlawful non-citizen.
However, the respondents note that the primary issues pressed in the current proposed application relate to the lawfulness of the applicant’s transfer to PNG in 2013, and then to Nauru in 2014.
The transfer during 2013 took place at a time when the applicant had been assessed, following a “comprehensive review” in which he participated, as being over the age of 18.
The transfer during 2014 occurred at a time when the applicant had been subsequently accepted as under the age of 18 (then, aged 17), but to have entered Australia for the purpose of living with a relative over the age of 21. Section 4AAA of the IGOC Act provides that a person is not a “non-citizen child” if they enter Australia for the purposes of living in Australia under the care of a relative who has turned 21. The respondents submit that no error occurred in connection with the assessment of the applicant in early 2014, or during the applicant’s subsequent transfer to Nauru.
The respondents expanded upon those submissions in their closing submissions.
Resolution
For the reasons I gave in FKP20 v Minister for Home Affairs[42] (and the earlier decisions of mine referred to therein) I reject any contention by the applicant that the current detention of the applicant is unlawful, or that he is entitled to a non-refoulement assessment before being returned to Nauru, whether under s 198AE of the Migration Act or otherwise, or that such return should otherwise be restrained. That is not to say that the applicant should be returned to Nauru. That is a question of policy for the Minister. As is noted in the respondents’ submissions, the real issue in this case is whether jurisdictional error was committed in the initial assessment that the applicant was on arrival in Australia an adult, and in the transfer of him to PNG, and in the assessment under the IGOC Act. There is also a claim for damages in tort.
[42] [2022] FedCFamC2G 396
In that regard, while it is extremely unfortunate that the applicant was initially incorrectly assessed as an adult, and that the consideration of the application of the IGOC Act was limited, it does not follow that the relevant decisions were affected by jurisdictional error. It is hard to understand why, if the applicant was brought to Australia for the purpose of family reunion, he was detained remotely from his family for two years. A residence determination was belatedly made to overcome that difficulty and I am not persuaded that the Commonwealth has breached its duty of care to the applicant. The claim in tort was not fully properly argued in any event. In that regard I agree with and adopt the respondents’ closing submissions.
IGOC Act, s 6A ground
The respondents first address the applicant’s ground concerning the absence of consent by the Minister under s 6A of the IGOC Act.
The IGOC Act relevantly provides:
4AAA Non‑citizen child
(1) Subject to subsections (2) and (3), a person (the child) is a non‑citizen child if the child:
(a)      has not turned 18; and
(b)      enters Australia as a non‑citizen; and
(c)      intends, or is intended, to become a permanent resident of Australia.
(2)Subsection (1) does not apply if the child enters Australia in the charge of, or for the purposes of living in Australia under the care of:
(a)       a parent of the child; or
(b)      a relative of the child who has turned 21; or
(c)      an intending adoptive parent of the child.
(3)      Subsection (1) does not apply if:
(a)the child enters Australia in the charge of, or for the purposes of living in Australia under the care of, a person who is not less than 21 years of age (the adult); and
(b)a prescribed adoption class visa is in force in relation to the child when the child enters Australia; and
(c)the adult intends to reside with the child in a declared State or Territory.
(4)      A person is a non‑citizen child if:
(a)       the person has not turned 18; and
(b) a direction under section 4AA is in force in relation to the person.
…
6 Guardianship of non‑citizen children
(1) The Minister shall be the guardian of the person, and of the estate in Australia, of every non‑citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.
(2) Without limiting the meaning of the expression leaves Australia permanently in subsection (1), a non‑citizen child leaves Australia permanently if:
(a) the child is removed from Australia under section 198 or 199 of the Migration Act1958; or
(b) the child is taken from Australia to a regional processing country under section 198AD of that Act; or
(c)      the child is deported under section 200 of that Act; or
(d) the child is taken to a place outside Australia under paragraph 245F(9)(b) of that Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act2013.
6A Non‑citizen child not to leave Australia without consent
(1) A non‑citizen child shall not leave Australia except with the consent in writing of the Minister.
(2) The Minister shall not refuse to grant any such consent unless he or she is satisfied that the granting of the consent would be prejudicial to the interests of the non‑citizen child.
(3) A person shall not aid, abet, counsel or procure a non‑citizen child to leave Australia contrary to the provisions of this section.
…
8 Operation of other laws
(1) Except as prescribed, nothing in this Act shall affect the operation in relation to non‑citizen children of any provision of the laws of any State or Territory relating to child welfare.
(2)     Nothing in this Act:
(a)       affects the operation of the migration law; or
(b) affects the performance or exercise, or the purported performance or exercise, of any function, duty or power under the migration law or the Maritime Powers Act 2013; or
(c) imposes any obligation on the Minister or another Minister to exercise, or to consider exercising, any power conferred by or under the migration law or the Maritime Powers Act 2013.
(3) Without limiting subsection (2), nothing in this Act affects the performance or exercise, or the purported performance or exercise, of any function, duty or power relating to:
(a) the removal of a non‑citizen child from Australia under section 198 or 199 of the Migration Act 1958; or
(b) the taking of a non‑citizen child from Australia to a regional processing country under section 198AD of that Act; or
(c)      the deportation of a non‑citizen child under section 200 of that Act; or
(d) the taking of a non‑citizen child to a place outside Australia under paragraph 245F(9)(b) of that Act, or under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013.
In Plaintiff M70/2011 v Minister for Immigration and Citizenship,[43] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that removal of a non-citizen child (within the meaning of the IGOC Act) under s 198A of the Migration Act could not be effected without consent in writing of the Minister.[44]
[43] (2011) 244 CLR 144
[44] French CJ at 183-184, [69], joint reasons of Gummow, Hayne, Crennan and Bell JJ at 202-204, [137]-[147], Kiefel J at 237, [257]
Section 8 of the IGOC Act was amended following the delivery of the decision in Plaintiff M70. During the second reading speech for the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Cth),[45] on 21 September 2011, the then Minister for Immigration and Citizenship stated:
[45] see Commonwealth House of Representatives, Parliamentary Debates (Hansard), 21 September 2011, page 10945
The purpose of this bill is clear: to restore to the executive the power to set Australia's border protection policies, specifically the power to transfer asylum seekers arriving at excised offshore places to a range of designated third countries within the region, while ensuring protection from refoulement, for the processing of their claims.
This is a power that was thought to exist until 31 August this year, when the majority of the High Court decided that transfers under section 198A of the Migration Act could only take place to countries legally bound to provide protections equivalent to those offered by Australia.
…
The bill also makes related amendments to the Immigration (Guardianship of Children) Act 1946 to effectively return the law to the position that was understood to exist prior to the High Court decision. That is, to assert the primacy of the Migration Act over the Immigration (Guardianship of Children) Act.
This is designed to remedy the current, patently unworkable, situation precluding the involuntary transfer of unaccompanied minors to other countries, whether taken to a designated country under the provisions of this bill, removed as failed asylum seekers or transferred under other provisions.
Under the interpretation of the law set out by the High Court last month, the removal from Australia of an unaccompanied minor is practically extremely difficult, if not impossible. It would be thus in relation to Malaysia and it would be thus in relation to Nauru.
Of course, the minister will retain the ability to personally intervene to determine that a minor—or any other person who is considered vulnerable—should not be taken to a third country under the new subdivision. This power is an important safety valve to be used in individual cases, as and where appropriate.
However, a blanket inability of the government of the day to transfer unaccompanied minors to a designated country provides an invitation to people smugglers to send boatloads of children to Australia. No government can stand for the gaming of the system and risking of children's lives in this way.
That is why these amendments to the Immigration (Guardianship of Children) Act are necessary.

I accept that the terms and purpose of s 8 of the IGOC Act, as revealed by the extrinsic material, are irreconcilable with the applicant’s contention.
Validity of the Ministerial directions
Though it is not entirely clear, the applicant appears to contest the validity of a Ministerial direction apparently dated 29 July 2013.
I recently considered the validity of a 2021 Ministerial direction in FJI20 v Minister for Home Affairs.[46] I accepted the respondents’ submissions in that case, including because the Court should in very few circumstances interfere with a decision by the Minister as to what was in the public interest (the sole criterion for the making of a direction under s 198AD(5) of the Migration Act pursuant to s 198AD(8)), and because the personal circumstances of the applicant were irrelevant to the validity of the instrument.
[46] [2021] FedCFamC2G 88
The applicant appears to assert that the 29 July 2013 direction was invalid because non‑refoulement obligations, including those arising under the Convention on the Rights of the Child, were not considered. However, this would be to read in a further criterion for the making of a direction beyond that specified in s 198AD(8).
The applicant’s submissions appear to rely on an assertion that the 29 July 2013 direction is invalid because the Minister, as legal guardian, acted in conflict of interest in not acting in the best interests of the child in making the determination.[47] The precise nature of the “conflict” is not identified. Be that as it may, to require the Minister to consider the best interests of children when making a direction would, again, seem to read in a further criterion beyond that specified in s 198AD(8). In any event, as addressed further below, s 8 of the IGOC Act answers this contention.
[47] eg, at [44]
The 21 May 2022 Application also seeks declarations in relation to what is described as “the second s 198AD(5) determination”. Presumably it is a reference to a 29 May 2014 direction. It is not apparent how that direction is relevant to the applicant’s case, given that he was taken from Australia to PNG and also from Australia to Nauru before it came into force. Be that as it may, the analysis above would apply equally to it.
The applicant contends that the decision to transfer him to PNG was affected by jurisdictional error because of the mistake as to his age, in consequence of which the relevant non-refoulement obligations including under the Convention on the Rights of the Child were not considered. The applicant also contends that the mistake as to his age gave rise to an unspecified jurisdictional error in the decision to transfer him to Nauru.
The second contention may be immediately rejected. That is because, by the time the applicant was taken to Nauru, the Pakistani birth certificate recording the applicant’s date of birth as 4 November 1996 had been accepted as genuine. Accordingly, the applicant’s being taken to Nauru involved no mistake as to his age.
Focussing, then, on the applicant being taken to PNG, the respondents observe immediately that the applicant’s conception of this step as involving a “decision” is not entirely accurate. Section 198AD(2) required that the applicant be taken to a regional processing country. The only “decision” made was as to which regional processing country the applicant was required to be taken in accordance with the 29 July 2013 s 198AD(5) direction. It does not appear that the focus of the applicant’s attack is on the choice to take him from Australia to PNG rather than Nauru. Rather, it appears to be on the fact that he was taken from Australia to a regional processing country at all.
The applicant’s attack can, however, be understood as involving a contention that, before he was taken to any regional processing country, there had to be an assessment of whether doing so would involve a breach by Australia of any non-refoulement obligations including those under the Convention on the Rights of the Child and that, because of the mistake as to his age, such an assessment did not occur.
At a factual level, the pre-transfer assessment form dated 1 October 2013 records that the applicant did not make any protection claims against PNG,[48] but that is not a complete answer to this allegation, because it is equally evident from that form that the applicant was not regarded at that time as a child.
[48] SCB 42; see similarly page 6 of the pre-transfer form completed on 13 February 2014 before the applicant’s transfer to Nauru: affidavit of Ms Warner Knight
It is not clear to what non-refoulement obligations in the Convention on the Rights of the Child the applicant is seeking to make reference. To the extent they are limited to Article 37(a), which provides, “No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment”, this does not differ from the complementary protection obligations that would arise in relation to adults. But to the extent that reference is intended to be made to the obligation in Article 3(1), “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration”, that was not something that would have been considered. So much is evident from the 1 October 2013 pre-transfer assessment form. It stated: “Any person who credibly claims to be a minor must be subject to a separate Best Interests Assessment” and this section was assessed to be inapplicable.[49]
[49] SCB 40; By contrast, page 4 of the 13 February 2014 pre-transfer assessment noted that a “BIA” had been completed
The international obligation to treat the best interests of the child as a primary consideration is not generally regarded as a non-refoulement obligation. According to the UN Committee on the Rights of the Child:[50]
in fulfilling obligations under the Convention, States shall not return a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child, such as, but by no means limited to, those contemplated under articles 6 and 37 of the Convention, either in the country to which removal is to be effected or in any country to which the child may subsequently be removed.
[50] UN Committee on the Rights of the Child, General Comment No. 6 (2005): Treatment of Unaccompanied and Separated Children Outside Their Country of Origin, UN Doc CRC/GC/2005/6 (1 September 2005) at [27]
This seems in substance unlikely to be any different from the consideration which in fact took place (in confirming whether the applicant had any reason to fear transfer to the regional transfer country) as evidenced by the 1 October 2013 pre-transfer assessment form.
On orthodox principles, the text of s 198AD is not susceptible to an implied limitation of this kind. This is consistent with other cases in which the courts have rejected an attempt to read in the best interests of the child as a mandatory consideration or other limitation upon the exercise of powers under the Migration Act.[51]
Non-refoulement claims generally
[51] see, eg, Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 at [22]–[23]
Apparently separate from the matters above, the applicant claims that he was not given a fair opportunity to raise non-refoulement claims in relation to PNG and Nauru prior to being transferred to those places.
The respondents note that this matter is specifically addressed in a pre-transfer assessment form which was completed before the applicant was taken to PNG, and again in the form completed prior to transfer to Nauru.
I considered, and did not accept, similar arguments to those now raised by the applicant in the present case regarding any obligation on the respondents to conduct such an assessment in FCZ20 v Minister for Home Affairs[52] and FKP20.
[52] [2022] FedCFamC2G 15
There is no basis on which the relief sought by the applicant in connection with an alleged failure to provide him with an opportunity to raise non-refoulement claims would be granted.
Conflict of interest
The applicant contends that the decision to transfer him to PNG was affected by a conflict of interest, as the respondents were in the position of legal guardian with respect to him. It appears that this allegation is founded upon the contention that s 6 of the IGOC Act applied to him. That would not be so if, as is apparently the case, the applicant entered Australia intending to live with his aunt. But even if s 6 applied, the allegation of a “conflict of interest” does not assist the applicant.
Section 8 of the IGOC Act expressly provides that nothing in the IGOC Act affects the performance or exercise of any function, duty or power relating to the taking of a non-citizen child from Australia to a regional processing country under s 198AD of the Migration Act. That would cover not only the duty imposed on an officer to take the child to a regional processing country under s 198AD(2) but also the Minister’s duty under s 198AD(5) to give a direction specifying to which of more than one regional processing countries the child must be taken and the Minister’s power under s 198AE(1) to determine that s 198AD does not apply to the child. In light of s 8 of the IGOC Act, it cannot properly be contended that in performing the duty under s 198AD(5) of the Migration Act or deciding whether or not to exercise power under s 198AE(1) of that Act, s 6 of the IGOC Act gave rise to any conflict of interest on the part of the Minister.
It is also not clear how any alleged conflict of interest could lead to the invalidity of any taking of the applicant to PNG. If the provisions of the relevant Ministerial direction and the Migration Act on their terms authorised and required the applicant to be taken to PNG, there was no further “decision” by the Minister that the applicant be taken to PNG. To the extent that the applicant seeks to impugn the Minister’s failure to exercise the power in s 198AE(1) of the Migration Act to exempt him from the requirement to be taken to a regional processing country, s 198AE(7) makes clear that the Minister has no duty to consider whether to exercise the power in s 198AE(1) in any circumstances.
In McHugh v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs (No 3),[53] Anderson J stated at [92]:
Additionally, although a breach of s 6 of the IGOC Act does not, by itself, give rise to a free-standing cause of action, that breach may be relevant to other causes of action: Sadiqi (No 2) at [302]; Sadiqi v Commonwealth (No 3) [2010] FCA 596 at [11]–[12] per McKerracher J; see also Trevorrow (No 5) at [965] (in relation to guardianship obligations under, in particular, the former Aborigines Act 1934-1939 (SA), for which see Trevorrow (No 5) at [388]).
[53] [2020] FCA 843
In Sadiqi v Commonwealth (No 3),[54] McKerracher J stated at [11]–[12]:
In relation to the claims which depend upon allegations of breach of guardianship duties, I reached the conclusion that s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act) did not impose any duties on the second defendant in his capacity as a guardian of a non-citizen child arriving in Australia, the breach of which were enforceable by any cause of action sounding in damages (at [289]–[303]).
Once again, I can see no conclusion other than the fact that there being no free standing cause of action based on the breach of the IGOC Act, those parts of the plaintiff’s claim which depend upon such a proposed cause of action must also be dismissed
[54] [2010] FCA 596
While these comments recognise the possibility that a breach of s 6 of the IGOC Act might be relevant to other causes of action, for the reasons above, it is not clear how any breach by the Minister of s 6 could be relied upon so as to render unlawful the taking of the applicant to PNG.
For these reasons, the applicant’s ground concerning a conflict of interest is not made out.
Violation of s 4AA of the Migration Act
The applicant contends that s 4AA of the Migration Act was violated through failure to apply the principle that detention of a minor should only be as a last resort. Section 4AA(1) provides:
The Parliament affirms as a principle that a minor shall only be detained as a measure of last resort.
This provision is an affirmation of a general principle. It is not a prohibition on the detention of minors. Accordingly, it is not accurate to say that s 4AA was “violated”. In any event, even if taking the applicant to PNG involved a departure from the general principle stated in s 4AA, the applicant has not established how this could lead to the invalidity of that step. Section 198AD(2) of the Migration Act simply operated to require the applicant to be taken to PNG. That this may have involved some “violation” of s 4AA is immaterial. Certainly s 4AA could not be relied upon to generate a duty upon the Minister to exempt the applicant from the operation of s 198AD pursuant to s 198AE(1), as that would conflict with the terms of s 198AE(7).
“Personal procedural decision” claims
As above, the applicant indicated that the 21 May 2022 Application was amended following a hearing day on 19 May 2022. The decision in FKP20 (ie, the relevant matters) considered the Court’s jurisdiction in relation to the exercise or potential exercise of power under s 198AE of the Migration Act.
For the reasons articulated in FKP20, the applicant’s similar claims in the present case do not succeed.
Torts claims
Finally, by the applicant’s 21 May 2022 Application and submissions, the applicant now seeks to advance claims in tort, including by seeking relief by way of damages.
These are substantial amendments to the applicant’s pleaded case, which were first drawn to the respondents’ attention at a directions hearing on 29 April 2022.
As a preliminary matter, there is a question of the Court’s jurisdiction to hear and determine these claims. In FJE20 v Minister for Home Affairs,[55] to which the applicant refers, the Full Federal Court found at [60] that in the circumstances of that case certain of the relief sought (not in tort) did fall within this Court’s jurisdiction. As to whether sections of the (now repealed) Federal Circuit Court of Australia Act 1999 (Cth) or any other principle operated to “confer the FCC[56] with jurisdiction to entertain the applicant’s common law claim for damages for negligence” was not determined (at [62]). That issue was separated from the initial, factual, issue in FJE20, including because of the Full Federal Court’s identification at [5] that a constitutional issue had arisen, which may require issuing s 78B notices under the Judiciary Act 1903 (Cth).
[55] [2022] FCAFC 45
[56] reconstituted as the Federal Circuit and Family Court of Australia (Division 2) effective 1 September 2021.
The applicant’s submissions do not engage with the constitutional concerns raised by the Full Federal Court in FJE20 (and s 78B notices have not been issued).[57]
[57] in contrast, s 78B notices were issued in SZRWS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 447, where I considered the issue of jurisdiction and found that I had jurisdiction to consider the claim in tort
Further, the basis of any novel “duty” claimed to have been owed by the respondents is not clearly articulated in either the 21 May 2022 Application (which, among the grounds, refers to a “duty” only as the final of ten matters said to support a ground regarding a non-refoulement assessment) or in the 17 May 2022 Submissions.
In circumstances where the Court has not had full argument on these issues (and the parties have otherwise agreed the matter is an appropriate one to determine on the papers) the respondents submit that the Court should either refuse the relief sought or, in the alternative, deny the applicant leave to amend to add in these new claims. I will take the first course.
CONCLUSION
I will grant the applicant leave to file and rely upon the most recent iteration of his application referred to in these reasons. The application should also receive an extension of time to the extent that he requires one under the ADJR Act.
The application, as amended, will be dismissed.

I certify that the preceding one hundred and twenty (120) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.
Associate:
Dated: 15 August 2022
SCHEDULE OF PARTIES

SYG 3008 of 2020

Respondents

Fourth Respondent:

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

File number(s):	SYG 3008 of 2020
Judgment of:	JUDGE DRIVER
Date of judgment:	15 August 2022
Catchwords:	MIGRATION – medevac applicant – applicant arrived as a child but initially treated as an adult – whether processing error invalidating decision to send the applicant to regional processing country considered – applicant brought to Australia for family reunion – applicant claiming a fear of return to both Pakistan and Nauru – applicant found to be a refugee – whether the applicant entitled to a non‑refoulement assessment prior to any return to Nauru considered
Legislation:	Administrative Appeals Tribunal Act 1975 (Cth) s 44 Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5 Federal Circuit Court of Australia Act 1999 (Cth) Immigration (Guardianship of Children) Act 1946 (Cth) ss 4AAA, 6, 6A, 8, 11A Judiciary Act 1903 (Cth) s78B Migration Act 1958 (Cth) ss 4AA, 5, 195A, 197AB, 198, 198AD, 198AE, 198AH, 198C, 198E, 198F, 198G, 476, 477, 499 1 Migration Amendment (Repairing Medical Transfers) Act 2019 (Cth) Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 134, 139
Cases cited:	AOU21 v Minister for Home Affairs [2021] FCAFC 60 AOU21 v Minister for Home Affairs (No 2) [2021] FCAFC 212 ASP15 v Commonwealth (2016) 248 FCR 372 CLM18 v Minister for Home Affairs [2019] FCAFC 170 Commonwealth v AJL20 [2021] HCA 21 Daniel v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 196 ALR 52 Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 213 FCZ20 v Minister for Home Affairs [2022] FedCFamC2G 15 FDT20 v Minister for Home Affairs [2021] FCCA 711 FGS20 v Minister for Home Affairs [2021] FCCA 753 FJE20 v Minister for Home Affairs [2022] FCAFC 45 FJH20 v Minister for Home Affairs [2021] FCCA 1480 FJI20 v Minister for Home Affairs [2021] FedCFamC2G 88 FKP20 v Minister for Home Affairs [2022] FedCFamC2G 396 Kaur v Minister for Immigration and Border Protection (2017) 256 FCR 235 McHugh v Minister for Immigration, Citizenship. Migrant Services and Multicultural Affairs (No 3) [2020] FCA 843 Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29 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 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 Plaintiff M96A/2016 v Commonwealth (2017) 261 CLR 582 Sadiqi v Commonwealth (No 3) [2010] FCA 596 Secretary, Department of Health & Community Services v JWB & SMB(“Marion's Case”) [1992] HCA 15 SHFB v Goodwin [2003] FCA 294 SHFB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 29 WACB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] HCA 50 WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55
Division:	Division 2 General Federal Law
Number of paragraphs:	120
Date of last submission/s:	21 June 2022
Date of hearing:	Decided without oral hearing
Place:	Sydney
Solicitors for the Applicant:	Mr D Taylor, with Ms N Harendran of Sydney West Legal and Migration
Counsel for the Respondents:	Ms C Roberts
Solicitors for the Respondents:	Australian Government Solicitor

SYG 3008 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	FJU20 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:	15 AUGUST 2022

SYG 3008 of 2020
Respondents
Fourth Respondent:	SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS