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
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…
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- Case
- [2021] FCCA 1487
- Decision Date
CaseChat Overview and Summary
The court was required to determine the legal issues arising from the applicant's detention, particularly in light of his withdrawal from and subsequent re-engagement with a resettlement process. The court also considered the applicant's medical condition and the purpose for which he was brought to Australia, as detailed in various affidavits and reports, including those concerning his psychiatric and physical health, and the availability of accommodation.
Driver J noted that the relevant provisions of the Migration Act and the legal principles applicable to the case had been extensively considered in prior proceedings. The court found that the applicant's withdrawal from and subsequent re-engagement with the resettlement process rendered the issue of unlawful imprisonment academic, except potentially in relation to a claim for damages for past unlawful detention. The court concluded that the appropriate relief in the present circumstances was similar to that ordered in a previous case, AOU21, and indicated that necessary declarations and mediation orders would be made.
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Background to the litigation
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Legal Principle Established
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 TraumaCONSIDERATION 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 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] 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 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. 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.