Khan v Minister for Home Affairs & Anor

[2020] HCATrans 126

[2020] HCATrans 126

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S97 of 2020

B e t w e e n -

DON KHAN MOHAMMAD ARFAN KHAN

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 9.30 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.

Like the other plaintiffs whose applications I decide today in Kazemi v Minister for Home Affairs[1], Mahamede v Minister for Home Affairs[2], and Mokhlis v Minister for Home Affairs[3], the plaintiff is in immigration detention.  With the assistance of solicitors common to the other matters, he brings this application in which he seeks the same relief in this Court’s original jurisdiction, on substantially the same grounds, as those brought in Kazemi v Minister for Home Affairs.  The relief sought in this Court’s original jurisdiction is for a writ of habeas corpus, declarations and injunctions.

[1][2020] HCATrans 124.

[2][2020] HCATrans 125.

[3][2020] HCA 30.

In this matter, the plaintiff’s sworn evidence is that he is a stateless Rohingya asylum seeker born in Rakhine State in Myanmar. His evidence is that he arrived in Australia at the age of 17 and was subsequently transferred to Manus Island. Following injuries from a suicide attempt, he was transferred to Australia for medical treatment. The evidence adduced on behalf of the defendants is that the plaintiff arrived in Australia for medical treatment on 7 June 2019, pursuant to s 198C(2) of the Migration Act 1958 (Cth) as it then stood. Although the plaintiff disputes that he has received medical treatment in Australia, the defendants’ evidence is that since June 2019, the plaintiff has been, and is, receiving medical treatment. The defendants’ evidence is that there is no present intention to remove the plaintiff to a regional processing country.

Since the plaintiff is an unlawful non‑citizen within the meaning of s 14(1) of the Migration Act 1958 (Cth), ss 189 and 196 of the Migration Act require that he be held in immigration detention until particular events occur such as him being 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”.

Like the plaintiff in Kazemi v Minister for Home Affairs, the plaintiff in this matter has been held in immigration detention whilst he has been in Australia. On 11 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 plaintiff’s case has not subsequently been referred to the first or second defendant for consideration in connection with s 197AB.

Like the plaintiff in Kazemi v Minister for Home Affairs, the plaintiff in this matter alleges that he is suffering severe mental and physical harm as a result of his detention.  He seeks the same relief as the plaintiff in Kazemi v Minister for Home Affairs: declarations that his “ongoing restraint ... in indefinite held custody” is causing him severe mental and physical pain or suffering; injunctions restraining the defendants from breaching their statutory duty or duty of care; remedies that include his release from the immigration detention facility; a declaration that the applicant has raised non‑refoulement obligations in respect of Papua New Guinea which ought to be considered by the defendants; and a declaration that it is in the public interest for the Minister to consider exercising the power in s 197AB of the Migration Act.

Also as in Kazemi v Minister for Home Affairs, the relief sought by the plaintiff can be divided into three categories. First, a writ of habeas corpus for his release from “the Immigration Detention facility”. Secondly, the 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 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 submit that the plaintiff’s application does not disclose any arguable basis for the relief sought and that it is therefore appropriate for this Court to dismiss the application pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). Alternatively, the defendants argue that the application should be remitted to the Federal Circuit Court of Australia for determination.

For the reasons set out in Kazemi v Minister for Home Affairs, the plaintiff’s application does not disclose any arguable basis for any of the relief sought in any of the categories above. The application should be dismissed pursuant to r 25.09.1 of the High Court Rules.

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

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 10.31 AM THE MATTER WAS CONCLUDED