Public Advocate of South Australia as Guardian for Peter Jackson Mode v Minister for Immigration and Multicultural Affairs

[2006] FCA 454

FEDERAL COURT OF AUSTRALIA

Public Advocate of South Australia as Guardian for Peter Jackson Mode v Minister for Immigration and Multicultural Affairs [2006] FCA 454

PUBLIC ADVOCATE OF SOUTH AUSTRALIA AS GUARDIAN FOR PETER JACKSON MODE  -v-  MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and MANAGER, BAXTER IMMIGRATION RECEPTION AND PROCESSING CENTRE

VID 371 of 2006

RYAN J

20 APRIL 2006
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 371 of 2006

BETWEEN:

PUBLIC ADVOCATE OF SOUTH AUSTRALIA AS GUARDIAN FOR PETER JACKSON MODE
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MANAGER, BAXTER IMMIGRATION RECEPTION AND PROCESSING CENTRE
Second Respondent

JUDGE:

RYAN J

DATE OF ORDER:

20 APRIL 2006

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The application for interlocutory relief be dismissed.

2.The applicant have leave if so advised further to amend the amended statement of claim and to file and serve the amended pleading within 14 days.

3.A defence or defences to the further amended statement of claim be filed within 14 days of its service on the respondent or respondents.

4.There be a directions hearing on a date to be fixed being not earlier than 18 May 2006.

5.The respondent’s costs of the application for interlocutory relief be reserved.

6.Liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 371 of 2006

BETWEEN:

PUBLIC ADVOCATE OF SOUTH AUSTRALIA AS GUARDIAN FOR PETER JACKSON MODE
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

MANAGER, BAXTER IMMIGRATION RECEPTION AND PROCESSING CENTRE
Second Respondent

JUDGE:	RYAN J
DATE:	20 APRIL 2006
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application for one of the two following forms of interlocutory relief which, as I understand it, are cast in the alternative;

   ‘(1)An interim injunction requiring the second respondent to immediately release Peter Jackson Mode from Baxter Detention Centre on the grounds that remaining there is adverse to the said Peter Jackson Mode’s mental health;

   (2)An interim injunction requiring the first respondent to immediately convey Peter Jackson Mode to Glenside Campus Mental Health Service situated at 228 Fulton Road, Glenside, South Australia (‘Glenside’) and for him to be housed there on an interim basis in accordance with the terms of these orders and directions.’

2. It is then proposed that there be directions as to the accommodation in which Mr Mode is to be housed and his receipt of appropriate psychiatric and therapeutic treatment and the possibility of his assessment to ascertain whether he is suitable for a residence determination.

3. The evidence discloses that Mr Mode had been detained in immigration detention since his arrival in Australia on 10 August 2004.  He was initially detained at the Baxter Detention Centre in South Australia (“Baxter”).  But, on 13 September 2005, he was transferred to the Glenside Campus Mental Health Hospital (“Glenside”).  The Clinical Director at Glenside is Associate Professor Norman James who examined Mr Mode on 17 November 2005 and concluded that;

   ‘1.Mr Mode suffers with a major depressive illness with intermittent psychotic episodes.

   2.There are elements of post traumatic stress disorder present.

   3.His present medication management is appropriate.

   4.A more potent and longer lasting benefit would be gained if he could be placed in the community and gain a sense of security.

   5.He should not return to Baxter as his condition will rapidly deteriorate and suicide is highly likely.

   6.He should be referred to STTARS in relation to the serious trauma that he has suffered.

   7.His HIV status should be checked, together with ongoing management for his fracture.’

4. However, on 3 April this year, Professor James advised the Department of Immigration and Multicultural Affairs (“the Department”), that;

   ‘I write with respect to the immigration detainees currently residing on Glenside Campus.  I have discussed the clinical status of all these patients and have noted the views of individual clinicians. 

   It is my view that this group of detainees is now ready for discharge from acute mental health inpatient care and are suitable for placement by DIMA, taking into account any specific individual needs (health care or other).

   However, it is my view that the isolated and custodial environment of the Baxter Detention Centre is not suitable for these clients.’

5. It is common ground that the group referred to by Professor James in that letter included Mr Mode.  Professor James confirmed that advice in an email of 10 April 2006 to Ms Brenda Stevens of the Department which recited that;

   ‘I wish to confirm that Mr Mode, [is] fit to leave hospital tomorrow, Tuesday, 11 April 2006, for placement at the housing project in Port Augusta.’

6. On the same day, 10 April, Dr Chaudhary, a consultant psychiatrist and Dr Onolov, a medical officer attached to Glenside, prepared a discharge report in anticipation of Mr Mode's discharge from Glenside on the next day, 11 April.  That report concluded with these recommendations and follow-up plan;

   ‘Recommendation:

   In spite of fragile improvement which was achieved as a result of laboriously intensive therapy and due to supportive and friendly environment, it is highly contraindicated his placement into custodial environment as a potential trigger of his depressive disorder and PTSD with subsequent self harming behaviour and even successful suicide. 

   It is totally contraindicated to use management unit, or so called, “red unit” in case of agitation or behavioural disorganisation. The urgent hospitalisation must be considered in such situations.’

7. Under the heading “Follow-up Plan” the discharge report recited;

   ‘-        regular psychiatric follow-up by community mental health team with continuation of current counselling and monitoring of medication regime

   -          to provide community based environment and assistance in auxiliary issues like finances, accommodation and medical services

   -          Mr Mode will need intensive vocational training to help seek employment.  He is capable of learning and will function well in the community in a supportive social environment. 

   -          Mr Mode would benefit from ongoing English education but has a reasonable command of the language.  He has completed secondary education with English as a second language.’

8. In accordance with Professor James’ recommendation, it was decided to transfer Mr Mode, on discharge from Glenside, to the Port Augusta Residential Housing Complex (“the RHC”).  However, Mr Mode has consistently expressed a preference to be detained at Baxter, where there are other Swahili speaking inmates, rather than be accommodated at the RHC.  The applicant, who is Mr Mode’s guardian pursuant to an interim order of the Guardianship Board of South Australia, under the Guardianship and Administration Act 1993 (SA), has indicated that the Department should accede to Mr Mode’s wishes in that respect. What the applicant effectively seeks is an interlocutory mandatory injunction requiring the Minister to return Mr Mode to Glenside and keep him there for a sufficient time to allow the Minister to make a residence determination under s 197AB of the Migration Act 1958 (Cth) (“the Act”).

9. It is conceded that there is no power in the Court to compel the Minister to consider whether or not to exercise her discretion to make such a determination.  In the result, I decline to make either of the interlocutory orders sought in the application or any other order effectively requiring Mr Mode to be returned to Glenside.  The evidence does not permit a finding that it is still feasible for him to be accommodated at Glenside.  Indeed, the inference from his discharge from Glenside under the supervision of Professor James, and with, at least, the acquiescence of Dr Chaudhary, is to the contrary.

10. As indicated in the course of discussion with Counsel, I am not prepared to make an interlocutory order simply requiring the second respondent immediately to release Mr Mode from Baxter because an order in that form would permit his removal to the Port Augusta RHC which would be contrary to the express preference which he has indicated and would be a course which Mr Esser of Counsel has candidly conceded is not something which he has instructions from the Guardian to seek.  In those circumstances, the application for interlocutory relief must be refused.  I shall make the following orders:

    (1)That the applicant have leave, if so advised, further to amend the amended statement of claim and to file and serve the amended pleading within 14 days;

    (2)That a defence, or defences, to the further amended statement of claim be filed within 14 days of its service on the respondent or respondents;

    (3)That there be a directions hearing on a date to be fixed being not earlier than 18 May 2006;

    (4)That the respondent's costs of the application for interlocutory relief be reserved;  and

    (5)That liberty be reserved to any party to apply on not less than 48 hours notice in writing to the other parties.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             28 April 2006

Counsel for the Applicant:	Mr K Esser
Solicitor for the Applicant:	Lander & Rogers
Counsel for the First Respondent:	Mr P Gray
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	13th and 20th April 2006
Date of Judgment:	20th April 2006