Fko20 v Minister for Home Affairs

[2021] FCCA 1487

FEDERAL CIRCUIT COURT OF AUSTRALIA

FKO20 v Minister for Home Affairs [2021] FCCA 1487

File number(s):

SYG 3046 of 2020

Judgment of:

JUDGE DRIVER

Date of judgment:

5 August 2021

Catchwords:

MIGRATION – application for release from detention – applicant brought to Australia from a regional processing country 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 – detention lawful but declarations and orders for mediation made

Legislation:

Immigration (Guardianship of Children) Act 1946 (Cth), s 6A

Migration Act 1958 (Cth), ss 189, 198AD, 198AH, 198B, 198E

Cases cited:

AOU21 v Minister for Home Affairs [2021] FCAFC 60

Commonwealth of Australia v AJL20 [2021] HCA 21

FDT20 v Minister for Home Affairs [2021] FCCA 711

Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637

Plaintiff M106/2011 by his litigation guardian Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32

Number of paragraphs:

30

Date of last submission/s:

6 July 2021

Date of hearing:

16 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:

Ms C Roberts

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

SYG 3046 of 2020

BETWEEN:

FKO20

Applicant

AND:

MINISTER FOR HOME AFFAIRS

First Respondent

MINISTER FOR IMMIGRATION, CITIZIZENSHIP, 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:	5 AUGUST 2021

THE COURT DECLARES THAT, IN THE EVENT THAT THE APPLICANT REMAINS IN AUSTRALIA AFTER 5 AUGUST 2021:

1.The applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia.

2.All of the pre-conditions in s 198AH(1A) of the Migration Act 1958 (Cth) are met in respect of the applicant, if he is a transitory person.

3.Section 198AH(1) applies to the applicant, if he is a transitory person.

THE COURT ORDERS THAT:

1.The applicant’s claims for:

(a)a declaration that his detention is unlawful; and

(b)an order in the nature of the writ of habeas corpus requiring his release from detention forthwith

are dismissed.

2.In the event that the applicant remains in Australia after 5 August 2021, the matter is referred under Part 27 of the Federal Circuit Court Rules 2001 (Cth) to a registrar of the Court for a mediation, including but not limited to questions of:

(a)where the applicant will be removed as soon as reasonably practicable and when such removal will occur;

(b)whether the parties seek to have the question of relief by way of mandamus re-agitated before the Court in this proceeding, on the existing evidence or with new  evidence; and

(c)which parties should pay the costs of this proceeding.

3.The parties have liberty to apply for further orders or directions on three days notice.

REASONS FOR JUDGMENT

JUDGE DRIVER:

INTRODUCTION AND BACKGROUND

1. By an application filed on 31 December 2020, the applicant seeks relief in the forms of declarations that his detention is not authorised by the Migration Act 1958 (Cth) (Migration Act) or any other power and is therefore unlawful and an order that he be released from detention forthwith. The ground advanced is in essentially the same terms as that advanced in numerous other matters before the Court in the so called “medevac” cases.

2. On 13 January 2021 the applicant filed an Application in a Case seeking an urgent hearing and interlocutory orders in the nature of habeas corpus.  On the same day the applicant filed an amended application for both interlocutory and final relief.  The orders sought on an interlocutory basis were the same as those sought in the Application in a Case.  The final orders sought were:

   1.Declarations that the detention of the Applicant is not authorized by the Migration Act 1958 or any other power and is therefore unlawful.

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

   3. Declarations that the holding of the applicant in detention at the time of his initial transfer to Papua New Guinea was unlawful.

   4.Declarations that the direction of the Minister under s.198AD(5) designating Papua New Guinea as the relevant regional processing country for the applicant was unlawful.

   5. Declarations that the initial transfer of the applicant to Papua New Guinea was unlawful.

   6. Declarations that the failure to provide medical treatment vitiated the purpose of detention rendering it unlawful

   7.        Costs

3. The grounds advanced are as follows:

   1.The detention is unlawful because the Defendant is unwilling or unable to remove the Applicant to the relevant regional processing country as required by ss.198(1) and 198(1A) and s.198AD(2) of the Migration Act 1958;

   Particulars.

   i.The Applicant arrived in Australia as an unaccompanied minor.

   ii.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 Papua New Guinea

   iii.The applicant requested to his ABF case manager return to Papua New Guinea in early 2020.

   iv.The applicant made a written request to the Minister for removal to Papua New Guinea as the relevant regional processing country on 14th December 2020.

   v.The Defendants have not taken reasonable and necessary steps to carry into effect their obligation to have the applicant available for removal 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.

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

   vii.The applicant had attempted suicide in PNG as a result of his circumstances during regional processing, including being subjected to assault, torture, unlawful imprisonment in Papua New Guinea

   viii.The applicant fled Papua New Guinea and sought asylum in Fiji.

   ix.His status as an unlawful maritime arrival ended when he fled PNG.

   2.The Detention was unlawful as the [Respondents] were unwilling or unable to provide him with the medical treatment for which he was brought to Australia, and/or, the harm to the applicant from detention is disproportionate to the potential benefit which could accrue if medical treatment were provided.

   i.The applicant was not provided with medical treatment which was the purpose for which he was brought to Australia and detained for mental health and physical injuries.

   3.The applicant is not a transitory person as he was unlawfully transferred to Papua New Guinea for regional processing;

   i.The Applicant was an unaccompanied minor when he arrived in Australia

   ii.He was detained 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.

   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.

   v.At the time of the designation, Papua New Guinea was implementing mandatory detention for transferees from Australia.

   vi.The designation under s.198AD(5) was infected by jurisdictional error through conflict of interest of the Minister, not acting in the best interests of the applicant as an unaccompanied minor under the Minister’s guardianship.

   vii.The applicant was transferred from Papua New Guinea to Australia for urgent medical treatment. 

   viii.The applicant was denied necessary medical treatment in Australia.

   4.    The Applicant is not an unauthorised maritime arrival

   i.The applicant is not an unauthorised maritime arrival under s.5AA of the Migration Act 1958 as, after being held in unlawful [detention] left the regional processing country Papua New Guinea and sought asylum in Fiji.

   ii.        The applicant was involuntarily removed to PNG by Fiji.

   iii.The status of the applicant as an unauthorised maritime arrival terminated when he left Papua New Guinea to another country other than Australia.

   5.    The Applicant was transferred to PNG under the wrong identity.

   (errors in original)

4. I heard the matter on a final basis on 16 April 2021.  I declined to grant relief in the nature of habeas corpus on an interlocutory basis but proceeded on the basis that it was open to the Court to make final orders for the release of the applicant from detention in the event that that detention was found to be unlawful.  Leave was granted to the applicant to rely upon the amended application referred to above.

5. I have before me the following evidence.  The court book filed on 15 March 2021 contains the amended application and the Application in a Case as well as numerous affidavits filed on behalf of the applicant up to that date.  The court book also contains documents concerning a transfer request made in relation to the applicant and documents relating to the decision to transfer.  The court book also contains IHMS[1] health summaries, documents relating to a submission to the Minister for a residence determination, documents relating to the proposed resettlement of the applicant in the USA and documents relating to the applicant’s requests for removal from Australia.  A supplementary court book was filed on 13 April 2021.

   [1] International Health and Medical Services

6. In addition, I have before me the following further affidavit material:

   (a)an affidavit by the applicant’s solicitor made on 11 March 2021 annexing several documents;

   (b)an affidavit by the applicant made on 27 March 2021 annexing a QPASTT[2] report;

   (c)an affidavit made on 25 March 2021 by Janet Mary Galbraith concerning her knowledge and observations of the applicant;

   (d)an affidavit by Bernadette Gauthier made on 31 March 2021 concerning the availability of accommodation for the applicant if he is released from detention;

   (e)an affidavit of Wayne Ruttley made on 8 April 2021 (Ruttley affidavit) deposing as to his role as the applicant’s status resolution officer;

   (f)an affidavit by the applicant made on 13 April 2021 in which he refers to his withdrawal from the US resettlement process and the cancellation of that process;

   (g)an affidavit by the applicant made on 9 May 2021 in which he refers to a request for removal from Australia to a regional processing country in consequence of the cancellation of the US resettlement process; and

   (h)the affidavit of the applicant’s solicitor made on 13 April 2021 annexing a further QPASTT report for the applicant.

   [2] Queensland Program of Assistance to Survivors of Torture and Trauma

   CONSIDERATION

7. The relevant provisions of the Migration Act bearing upon the issues to be resolved in this case have been explored at length in earlier proceedings in the High Court, the Federal Court and this Court and do not need to be repeated here. Likewise, the legal principles relevant to this case have been explored in earlier proceedings and in extensive written and oral submissions in the matter of FDT20 v Minister for Home Affairs.[3]  It is unnecessary to reproduce those submissions again.  There are, however, some unusual factual circumstances in this case which give rise to particular issues.

   [3] [2021] FCCA 711

8. In the present case, the applicant arrived at Christmas Island by boat as an unauthorised maritime arrival on 24 July 2013. On 12 August 2013, he was taken to Papua New Guinea (PNG) purportedly under s 198AD of the Migration Act.[4]

   [4] Ruttley affidavit at [6]

9. On 5 July 2019, the applicant was transferred to Australia purportedly under s 198B of the Migration Act for medical treatment, in relation to a variety of psychiatric and physical (including dental) medical conditions.[5]

   [5] Ruttley affidavit at [7]; however see Court Book (CB) 160-169 which indicates a medical transfer under the now repealed s 198E

10. In his affidavit, Mr Ruttley reviews the IHMS records held by the Department and annexes a health summary prepared on 11 March 2021 and amended on 30 March 2021 detailing the medical treatment received by the applicant since his arrival in Australia. 

11. Annexure WR-3 to the Ruttley affidavit is a copy of the most recent clinical advisory team opinion for the applicant dated 14 March 2021 which states that he has not completed management of the specific temporary medical purpose for which he was brought to Australia.  Based on that opinion, Mr Ruttley states his belief that the applicant still needs to be in Australia for the purpose of treatment of his medical issues. 

12. On 17 December 2020 the applicant made a request to be returned to PNG and the request was apparently repeated by text message on 2 March 2021.  Mr Ruttley states that the applicant was unfit to travel as at 10 March 2021. 

13. Mr Ruttley opines that for the purposes of s 189 of the Migration Act, he is obliged to ensure that the applicant remains in detention.

14. There is abundant evidence to establish that the applicant has experienced mental health issues, as a result of his history of torture and trauma and that he suffers from depression, insomnia and episodes of self harm.  The applicant has also repeatedly refused food and fluids requiring periodic medical intervention.  The applicant gave oral evidence at the trial of this matter on 16 April 2021.  I accept from his written and oral evidence that his prolonged detention has been an exacerbating factor concerning his mental health issues.

15. As noted above, there are also some special features in this case.  The first is that the applicant arrived in Australia as an unaccompanied minor[6] but he was treated as an adult when he arrived in Australia and when he was removed to PNG.  He was recognised as a minor in PNG and accommodated separately from adult detainees until his 18^th birthday.  This raises a question whether the initial detention and removal of the applicant was lawful. 

    [6] he was then aged 17

16. Secondly, the applicant was recognised as a refugee in PNG and was released from detention.  He had reasonable freedom of movement in PNG and travelled from PNG to Fiji, albeit on false documents.  There is a question whether that travel and the applicant’s status in PNG changed the applicant’s status for the purposes of Australian law.  The applicant was forcibly returned to PNG by Fiji and imprisoned for a time.

17. Importantly, however, the applicant was selected for resettlement in the USA following his transfer to Australia for medical treatment.  The court book records[7] that the applicant received final approval for resettlement in the USA on 8 December 2020 and was scheduled to depart Australia on 17 December 2020.  However, a minor court matter in the Brisbane Magistrates Court led to that departure being postponed until the court matter was finalised.  The court matter was officially finalised on 13 January 2021 when the charge was withdrawn.  A consequence, however, was that the medical assessment completed for the applicant for his USA resettlement application had expired and a new medical assessment was scheduled for 2 February 2021.  That medical assessment was all that was needed to finalise all stages of the applicant’s USA resettlement application process.  Following that, the applicant would only be awaiting a new travel date for his resettlement in the USA. 

    [7] at CB 258

18. Unfortunately, the applicant became frustrated and on 30 March 2021 he asked that his US resettlement file be closed.  That request was acted on remarkably quickly, on 5 April 2021.

19. It is plain that the applicant’s requests for transfer back to PNG have been an expression of frustration at his prolonged detention and the disruption of his planned resettlement in the USA.  He is a torture survivor and there is ample medical evidence of the adverse impact of continuing detention on his mental health.  His periodic refusals of food and fluids should also be seen in this context. 

20. In my view, it is arguable that the initial removal of the applicant to PNG in 2013 as an unaccompanied minor was in breach of s 6A of the Immigration (Guardianship of Children) Act 1946 (Cth) because there was no consent given for that removal.[8]  There is real doubt whether the applicant should be treated as a transitory person.

    [8] see Plaintiff M106/2011 by his litigation guardian Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32, in particular at [137]-[147]

21. Even if I were to find, however, that the applicant should not have been removed to PNG, he cannot change his status as an unlawful non citizen, which supported his initial detention, and continues to support it.

22. It is also arguable that the applicant’s travel from PNG to Fiji and back to PNG following his recognition as a refugee and his release from detention in PNG changed his status for the purposes of the Migration Act when he was brought to Australia. The better view is, however, that the mere fact of that travel did not change the applicant’s status for the purposes of the Migration Act.

23. The latest medical assessment of the applicant is the QPASTT document by Ms Boyd-Ford annexed to the applicant’s solicitor’s affidavit made on 13 April 2021.  Ms Boyd-Ford clearly links the applicant’s mental state to his prolonged and continuing detention.  She states that:

    it is highly recommended that [the applicant] be released from detention immediately that as it is our assessment that from a trauma recovery perspective, trauma recovery cannot occur whilst [the applicant] remains in the traumatic environment of the detention system.

24. The question of whether the applicant still needs to be in Australia is an objective one for the Court.[9]  I do not accept the respondents’ submission that the applicant still needs to be in Australia for the purpose of receiving medical treatment.  The applicant had been selected for resettlement in the USA and any necessary medical treatment could have been obtained there.  Further, it is plain that the applicant’s major issues are psychological and, although linked to past trauma and torture, are also substantially linked now to his lengthy and ongoing detention.

    [9] AOU21 v Minister for Home Affairs [2021] FCAFC 60

25. I note that the Department has assessed the applicant as unfit to travel in relation to his request for transfer back to PNG.  I also note, however, that the applicant was apparently treated as fit to travel to the USA for the purposes of his resettlement there.  I find, on the balance of probabilities, that the only thing which may be rendering the applicant unfit to travel is the adverse impact of his continuing detention.

26. On the evidence before the Court I find that, assuming that the applicant is a transitory person as defined in the Migration Act, he has established, on the balance of probabilities, that the three pre-conditions in s 198AH(1A) are met. The duty in s 198AD(2) is on that basis engaged. He does not need to be in Australia any longer. He needs protection and resettlement.

27. But for the applicant’s withdrawal from the US resettlement process, I would have concluded that the continuing detention of the applicant was unlawful. In my view it would have become unlawful on 17 December 2020 when the respondents prevented the applicant from leaving Australia for the USA in accordance with his selection for resettlement there. At that point the purpose of the applicant’s detention changed from being the lawful purpose of ensuring his availability for removal to the unlawful purpose of preventing his departure because of a criminal charge against him, which was later dropped. The detention would have become punitive and be unauthorised by the Migration Act.[10] Whatever else may be said about ss 189, 196 and 198, it cannot have been intended by Parliament that the provisions could support the executive detention of aliens to prevent their voluntary departure from Australia.

    [10] Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637; see also Commonwealth of Australia v AJL20 [2021] HCA 21 at [103] per Gordon and Gleeson JJ

1. Whether that period of unlawful detention would have continued after 17 December is a matter of conjecture.  It certainly would not have extended beyond the date of the applicant’s apparent abandonment of the US resettlement process.[11]

   [11] On 27 July 2021 the solicitor for the respondents informed that Court that, notwithstanding past events, the applicant had been approved (again) for resettlement in the USA and is scheduled to depart on 5 August 2021

2. For present purposes, the applicant’s withdrawal from and re-engagement with the resettlement process makes the issue of unlawful imprisonment academic, except perhaps in relation to a possible claim for damages, for any past period of unlawful detention.

   CONCLUSION

3. In the present circumstances the appropriate relief is essentially the same as that ordered by the Full Federal Court in AOU21, noting however the doubt whether the applicant should be treated as a transitory person.  I will make the necessary declarations and mediation orders.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver.

Associate: 

Dated:       5 August 2021

SCHEDULE OF PARTIES

SYG 3046 of 2020
Respondents
Fourth Respondent:	SECRETARY, DEPARTMENT OF HOME AFFAIRS