Hassan v Minister for Home Affairs

In the case of Hassan v Minister for Home Affairs, the appellant, an asylum seeker who had been detained in offshore immigration detention in Papua New Guinea, was medically evacuated to Australia. He requested removal to Papua New Guinea under section 198(1) of the Migration Act 1958 (Cth), but remained in detention until his removal to the United States of America, over 500 days after his request was made. The appellant argued that the respondents, being the Minister for Home Affairs and the Department of Home Affairs, owed him a duty of care to limit the duration of his detention to that required for the purpose of removal and that this duty was breached by failing to establish a system for administering requests for return to regional processing countries.

The primary judge was tasked with determining whether the respondents owed the pleaded duty, whether they had a system to administer requests for return to regional processing countries, whether border restrictions in response to the Covid-19 pandemic broke the chain of causation, and the assessment of the quantum of damages. The court examined the relevant statutory provisions and the circumstances of the appellant's detention, including the impact of the Covid-19 pandemic on his removal process.

The court concluded that the respondents did not owe the pleaded duty of care, as the appellant's detention was governed by specific statutory provisions, and there was no general duty of care owed to detainees in such circumstances. The court found that the respondents had a system in place to administer requests for return to regional processing countries, albeit that the system was not perfect. The court also determined that the border restrictions in response to the Covid-19 pandemic did not break the chain of causation, as the appellant's detention was primarily due to his own actions and the delays caused by the respondents. Lastly, the court assessed the quantum of damages and found that the appellant was not entitled to any damages for the period of his detention.

In conclusion, the appeal was dismissed, and the question of costs was to be decided on the papers. The appellant was required to file submissions and evidence on the question of costs by a specified date, with the respondents given a subsequent opportunity to respond. If the appellant did not file any submissions on costs, the orders regarding costs were to be vacated, and an order would be made that the appellant pay the respondents' costs.