Kazemi v Minister for Home Affairs & Anor

[2020] HCATrans 124

[2020] HCATrans 124

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S96 of 2020

B e t w e e n -

KAZEM KAZEMI

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION TO SYDNEY

ON TUESDAY, 1 SEPTEMBER 2020, AT 9.29 AM

Copyright in the High Court of Australia

HIS HONOUR:   By an application filed on 16 June 2020 the plaintiff seeks various forms of relief against the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.  For the reasons that I now publish I would dismiss the application.  The orders are:

1.The plaintiff’s application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff pay the costs of the defendants.

I publish those orders.  I direct that the reasons as published be incorporated into the transcript.

The plaintiff brings this application in this Court’s original jurisdiction for a writ of habeas corpus, declarations and injunctions.  The assumption is apparently that both defendants are responsible for administering the Migration Act 1958 (Cth)[1].  This application is one of four that I decide today brought by the same legal representatives.  I rely upon the reasoning below in dismissing two of the other applications[2].  Since preparing these reasons, another four related applications were dismissed by Keane J on 26 August 2020.

[1]Cf Commonwealth, Administrative Arrangements Order, 5 December 2019 at 22-23.

[2]Mahamede v Minister for Home Affairs [2020] HCATrans 125, and Khan v Minister for Home Affairs [2020] HCATrans 126.

The plaintiff came to Australia from Iran in September 2013 and was subsequently transferred to Manus Island in Papua New Guinea. The plaintiff’s evidence is that following two suicide attempts, he was hospitalised for nearly two months. On 5 July 2019, he was transferred to Australia for medical treatment pursuant to s 198C(2) of the Migration Act as it then stood.  The plaintiff has been detained in Australia since his arrival and has received, and is receiving, medical treatment.

On the evidence before this Court, the plaintiff is an unlawful non‑citizen within the meaning of s 14(1) of the Migration Act. Sections 189 and 196 of the Migration Act therefore require that he be held in immigration detention until he is granted a visa or removed from Australia. However, s 197AB(1) of the Migration Act empowers the Minister to make a residence determination that would allow a person such as the plaintiff to reside at a specified place instead of being held in immigration detention. Section 197AC(1) provides that in such circumstances the Migration Act applies “as if the person were being kept in immigration detention”.

On 1 November 2019, the plaintiff was referred to the second defendant for the possible exercise of the second defendant’s power to make a residence determination under s 197AB of the Migration Act.  On 19 November 2019, the second defendant declined to exercise that power in respect of the plaintiff.  The evidence adduced on behalf of the defendants is that there is no present intention to remove the plaintiff to a regional processing country.

The relief sought by the plaintiff can be divided into three categories. First, the plaintiff seeks a writ of habeas corpus for his release from “the Immigration Detention facility”. Secondly, the plaintiff seeks declarations and injunctions acknowledging and restraining what he alleges to be his severe mental and physical pain and suffering from being held indefinitely in custody. Thirdly, the plaintiff seeks declarations that (i) it is in the public interest for the Minister to consider exercising the power in s 197AB of the Migration Act and (ii) that the applicant has raised non‑refoulement obligations in respect of Papua New Guinea which ought to be considered by the defendants.

The defendants’ primary submission is that the plaintiff’s application should be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth) on the ground that it does not disclose any arguable basis for the relief sought. Alternatively, the defendants submit that the matter should be remitted to the Federal Circuit Court of Australia.

For two reasons, I was initially of the tentative view that the appropriate course might be to remit the matter to the Federal Circuit Court if that Court had jurisdiction.  First, if the matter could have been initiated in the Federal Circuit Court then it is appropriate that it should be dealt with by that Court, even by means of summary dismissal.  As Brennan CJ said in Ravenor Overseas Inc v Readhead[3], the power of remitter in s 44(1) of the Judiciary Act 1903 (Cth) “is designed to ensure that this Court is not diverted from its principal functions by the need to hear and determine matters in the original jurisdiction which could properly be brought in an Australian trial court”. Secondly, neither party opposed remitter if the Federal Circuit Court has jurisdiction to hear the matter on the remitter which, as I explain in Mokhlis v Minister for Home Affairs[4], it does.

[3](1998) 72 ALJR 671 at 672 [5]; 152 ALR 416 at 417.

[4][2020] HCA 30.

Ultimately, however, I accept the defendants’ primary submission that this application should be dismissed under r 25.09.1 of the High Court Rules.  I consider the issue of jurisdiction of the Federal Circuit Court in Mokhlis v Minister for Home Affairs[5].  Although it is not apparent that the plaintiff’s application falls within the categories in s 494AB of proceedings against the Commonwealth which “may not be instituted or continued in any court”, the parties have made no submissions on this issue.  Further, having already considered the facts and issues of this application in detail I have formed the clear view that it is hopeless and that there is no arguable basis for any of the relief sought.  There would be no point in further burdening the Federal Circuit Court.

[5][2020] HCA 30.

The first category of relief sought by the plaintiff, namely a writ of habeas corpus for his release from “the Immigration Detention facility”, is hopeless. The premise of this claim is that the plaintiff’s detention is discretionary. It is not. His detention is required by ss 189 and 196(1) of the Migration Act until one of the events listed in s 196(1), which includes the grant of a visa, occurs. None of those events has occurred. Section 196(3) provides that “[t]o avoid doubt”, s 196(1) “prevents the release, even by a court, of an unlawful non‑citizen from detention” in circumstances other than those provided.

The second category of relief sought by the plaintiff, namely declarations and injunctions acknowledging and restraining what he alleges to be his severe mental and physical pain and suffering from being held indefinitely in custody, is a claim for relief with no arguable basis. Several issues in dispute between the parties can be put to one side. First, no issue need be considered concerning the dispute between the parties about whether the plaintiff has been denied access to necessary medical treatment, whether his continuing detention is causing serious physical and mental harm, or whether the plaintiff has been or will be detained indefinitely. Secondly, no issues need be considered concerning the plaintiff’s reliance upon the offence of torture proscribed by s 274.2(2) of the Criminal Code (Cth) and the extent to which it relates to his allegations of breach of a common law duty or an enforceable statutory duty of care. Thirdly, the dispute between the parties concerning whether a duty of care prohibits differential treatment of transitory persons can also be put to one side. The simple reason why there is no arguable basis for the declarations and injunctions is that the basis for all the injunctions and declarations is the legality of ongoing detention rather than any of the conditions in which the plaintiff is held. The plaintiff does not allege that he should be held in detention but given different or better conditions. His claims in the second category relate to removal from detention. As the defendants correctly point out, the legality of detention does not depend upon the circumstances or condition of the detention[6].  Although the plaintiff was transferred to Australia for medical treatment, the purpose of his detention remains that of removal from Australia[7]. 

[6]Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 499 [21], 507 [53], 543 [176], 561 [223].

[7]Plaintiff M96A/2016 v The Commonwealth (2017) 261 CLR 582 at 595 [25].

As to the third category of relief sought by the plaintiff, namely declarations that (i) it is in the public interest for the Minister to consider exercising the power in s 197AB of the Migration Act and (ii) that the applicant has raised non‑refoulement obligations in respect of Papua New Guinea which ought to be considered by the defendants, these declarations would be inutile[8].  There is no utility in making an abstract declaration, affecting no legal right or interest, about whether it is in the “public interest” for the Minister to consider exercising a non‑compellable power or whether non‑refoulement obligations should be considered, without any reference to the statutory provision from which they arise or the nature of the duty to consider them.

Since preparing these reasons, reasons for decision were delivered on 26 August 2020 by Keane J in four related matters:  Sabanayagam v Minister for Home Affairs[9], Pirkhoohi v Minister for Home Affairs[10], Palasingam v Minister for Home Affairs[11], and Kanhalingam v Minister for Home Affairs[12].  Each of these matters appears to involve very similar claims to the claims in this application. In each matter, Keane J reached the same conclusion that the claims do not disclose an arguable basis for the relief sought and should be dismissed on the papers.  In addition to the reasons above, I agree with his Honour's reasons.

For these reasons, the orders of the Court are as follows:

[8]See Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582; Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 71 FCR 1 at 32-33.

[9][2020] HCATrans 119.

[10][2020] HCATrans 120.

[11][2020] HCATrans 121.

[12][2020] HCATrans 122.

1.The plaintiff’s application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2.        The plaintiff pay the costs of the defendants.

AT 9.30 AM THE MATTER WAS CONCLUDED