Hussein v Minister for Home Affairs & Anor

[2020] HCATrans 132

[2020] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S72 of 2020

B e t w e e n -

ISMAIL ABDIRAHMAN HUSSEIN

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 8 SEPTEMBER 2020, AT 9.31 AM

Copyright in the High Court of Australia

HER HONOUR:   The plaintiff filed an application for constitutional or other writ on 13 May 2020.  For the reasons to be given the application is dismissed with costs.  I direct that the reasons be incorporated in the transcript.

The orders of the Court are:

The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

I publish the reasons and those orders.

The plaintiff is in immigration detention.  On 13 May 2020, the plaintiff commenced proceedings in this Court’s original jurisdiction against the Minister for Home Affairs, the first defendant, and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the second defendant.  The plaintiff makes the following claims for substantive relief:  (1) habeas corpus to secure his release from the immigration detention facility; (2) in the alternative to (1) above, habeas corpus to secure his release from immigration detention; (3) prohibition to prevent the defendants from detaining him in the immigration detention facility; (4) an injunction preventing the defendants from continuing to detain him at the immigration detention facility; (5) an injunction preventing the defendants from restraining him from “exercising his residual liberty”; and (6) mandamus directed to the defendants requiring them to make a determination that he reside in a community residence to be specified, whether as a “residence determination” or otherwise as a community‑based APOD.  The latter, an acronym for “alternative place of detention”, recognises that a person may be held in immigration detention in a place approved by the Minister in writing[1]. 

[1]Migration Act 1958 (Cth), s 5(1) definition of “immigration detention”.

In their response, the defendants submit that the application does not disclose an arguable basis for any of the relief sought and should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) (“the Rules”). The claims for relief, and the arguments in support of them, are in like terms to claims that have been dismissed as untenable by Keane J and Edelman J respectively[2].  For the reasons to be given, I have reached the same conclusion with respect to the plaintiff’s application.

[2]Sabanayagam v Minister for Home Affairs [2020] HCATrans 119 (26 August 2020); Pirkoohi v Minister for Home Affairs [2020] HCATrans 120 (26 August 2020); Palasingam v Minister for Home Affairs [2020] HCATrans 121 (26 August 2020); Kanhalingan v Minister for Home Affairs [2020] HCATrans 122 (26 August 2020); Mahamede v Minister for Home Affairs [2020] HCATrans 125 (1 September 2020); Khan v Minister for Home Affairs [2020] HCATrans 126 (1 September 2020); Kazemi v Minister for Home Affairs [2020] HCATrans 124 (1 September 2020).

The plaintiff has been found by the Minister for Foreign Affairs and Immigration of Papua New Guinea to be a person who meets the criteria for recognition as a refugee under the law of Papua New Guinea. On 30 October 2019, the plaintiff was transferred from Papua New Guinea to Australia under s 198C(2) of the Migration Act 1958 (Cth) (“the Act”) as it then stood. On 24 October 2019, the plaintiff signed an “Agreement of Medical Transfer”, acknowledging that while in Australia for the temporary purpose of medical treatment he would be held in immigration detention on the basis that he is an unlawful non‑citizen.

The plaintiff has been under the care of the International Health Medical Services.  He suffers from diabetes type II, non‑alcoholic fatty liver disease, hypertension, non‑cardiac chest pain and mental health issues associated with a history of torture and trauma, situational depression and post‑traumatic stress disorder.  Since his transfer to Australia the plaintiff has been receiving treatment for both his physical and mental health conditions.  The plaintiff is being considered for re‑settlement in the United States of America and is awaiting a second interview with the Department of Homeland Security.  These interviews have been temporarily suspended as a consequence of the COVID‑19 pandemic.

The first defendant, on behalf of the Commonwealth, has the power to cause detention centres to be established and maintained[3], and to detain detainees in such a detention centre or in another place approved by the first defendant in writing[4].  Since his transfer to Australia, the plaintiff has been detained at the Melbourne Immigration Transit Accommodation and at a hotel, apparently as a consequence of the COVID‑19 pandemic.

[3]Migration Act, s 273(1).

[4]Migration Act, s 5(1).

The plaintiff expresses fears about contracting COVID‑19 and complains about the conditions of detention.  He states that his physical and mental health are deteriorating because of his confined detention.  He also states that he had thought that he would be better off were he returned to Papua New Guinea because he would at least have freedom of movement.  At the date of commencing the proceeding this was no longer his wish as he fears for his safety in Papua New Guinea.

Section 197AB(1) of the Act confers on the first defendant a power to make a determination that one or more specified persons who are detained under s 189 are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in s 5(1) of the Act (“residence determination”). On 8 November 2019, the plaintiff was referred for consideration against the “s 197AB Ministerial Intervention Guidelines”. The process was finalised without the plaintiff’s case being referred to the first defendant.

The plaintiff does not have a visa that is in effect and thus he is an unlawful non‑citizen[5]. He is a “transitory person” who was brought to Australia for the temporary purpose of receiving medical treatment under s 198C of the Act, as it then stood. Section 198(1A) requires that he be removed from Australia as soon as he no longer needs to be in Australia for the temporary purpose. While he remains in Australia the Act requires that the plaintiff be kept in immigration detention[6]. The combined effect of ss 198(1A) and 198AD(2) of the Act is that the plaintiff must be removed as soon as reasonably practicable after he no longer needs to be in Australia for the temporary purpose.

[5]Migration Act, ss 13, 14.

[6]Migration Act, ss 189 and 196(1).

With the exception of the claim pleaded in prayer (2), the challenge is to the form of the plaintiff’s detention.  The plaintiff submits that at least since the introduction of the scheme for residence determinations[7] the Act evinces a legislative intention that detainees be subject to the “least possible restraint”. The submission is untenable. The power to make a residence determination is non‑compellable and conditioned only upon the first defendant thinking that it is in the public interest to make the determination. The plaintiff’s detention does not cease to be lawful because it is open to the first defendant to make a determination that the plaintiff be detained in less restrictive conditions. The lawfulness of immigration detention does not depend upon the circumstances or conditions of the detention[8].  This is not to say that the plaintiff is outside the protection of the civil and criminal law, but it is to recognise that the severity of the form of detention does not convert it into unlawful detention.

[7]Migration Act, Pt 2 Div 7 Subdiv B inserted by Migration Amendment (Detention Arrangements) Act2005 (Cth).

[8]Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 499 [21] per Gleeson CJ, 507 [53] per McHugh, Gummow and Heydon JJ, 561 [223] per Callinan J.

There is no evidentiary support for the claim that the plaintiff signed the “Agreement of Medical Transfer” under duress in that he was told that he would be denied medical treatment if he did not sign it. Rather, in his affidavit the plaintiff states that he signed the paperwork – agreeing that he would return to Papua New Guinea – under duress because he understood he would not be allowed to board the plane if he did not do so. In any event, if the allegation of duress were to be established it would not support the relief that the plaintiff claims. The manner of bringing the plaintiff to Australia does not alter the requirement under the Act that he be kept in immigration detention until he is removed from Australia. No arguable basis is established for the relief that is claimed in prayers (1), (3), (4) or (5) of the application.

The relief claimed in prayer (2) – habeas corpus to secure the plaintiff’s release from immigration detention – is based on the assertion that the plaintiff cannot be removed to Papua New Guinea or elsewhere.  In the circumstances, it is argued that the purpose of the plaintiff’s detention is at an end.  The asserted inability to remove the plaintiff to Papua New Guinea appears to arise from travel restrictions associated with the COVID‑19 pandemic.  Accepting for present purposes that the pandemic prevents the defendants from removing the plaintiff from Australia there is no basis for concluding that this temporary emergency renders the plaintiff’s detention indefinite.  Nor is there any basis for concluding that the purpose of the detention does not remain that of the plaintiff’s removal from Australia[9].  No arguable basis is identified to support an order that the plaintiff be released from immigration detention.  That is so whether the relief is framed as a claim for habeas corpus, prohibition or an injunction.

[9]Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at 596 [28].

The plaintiff’s arguments in support of the relief claimed in prayer (6) are also untenable. The first defendant is not under a duty to respond to a request to consider exercising the power conferred by s 197AB(1)[10].  In circumstances in which there is no statutory duty to consider the exercise of the power no question of procedural fairness arises when the first defendant declines to embark upon such a consideration[11].

[10]Migration Act, s 197AE.

[11]Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636 at 654‑655 [50], 668 [100] per Gummow, Hayne, Crennan and Bell JJ; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 200 [53]-[54].

The contention that the first defendant’s statements in Parliament and the media give rise to a reasonable apprehension of bias with respect to his exercise of the power conferred by s 197AB(1) of the Act is unsustainable. Putting the statements made to Parliament to one side[12], the fact that the first defendant may have formed a view about the circumstances in which he would exercise the power in a particular case does not bespeak actual or apprehended bias by way of prejudgment[13].

[12]Parliamentary Privileges Act1987 (Cth), s 16(3)(a).

[13]Minister for Immigration v Jia Legeng (2001) 205 CLR 507 at 566 [190]‑[192] per Hayne J; Plaintiff S297/2013 v Minister for Immigration (2015) 255 CLR 231 at 242‑243 [18]‑[20].

The first defendant is not under a duty to consider whether to exercise his power to make a residence determination in any circumstances[14].  It is well settled that the Court will not order mandamus requiring consideration, much less exercise, of such a power[15].  No arguable basis is established for the relief claimed in prayer (6).

[14]Migration Act, s 197AE.

[15]Plaintiff M61/2010E v The Commonwealth (2010) 243 CLR 319 at 358 [99]; Plaintiff M168/10 v The Commonwealth (2011) 85 ALJR 790 at 796 [37] per Crennan J.

For these reasons, there will be the following order:

The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth) with costs.

AT 9.31 AM THE MATTER WAS CONCLUDED