Sabanayagam v Minister for Home Affairs & Anor

[2020] HCATrans 119

[2020] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S76 of 2020

B e t w e e n -

RAMSIYAR SABANAYAGAM

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 26 AUGUST 2020, AT 9.30 AM

Copyright in the High Court of Australia

HIS HONOUR:   On 19 May 2020, the plaintiff filed an application for a constitutional writ and other relief.  For the reasons that I now publish I would dismiss the application.  I direct that those reasons be incorporated into the transcript. 

The orders are:

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

2.The plaintiff pays the defendants’ costs of the application.

I publish those orders.

On 19 May 2020, the plaintiff filed an application for writs of habeas corpus for the release of the plaintiff from immigration detention, writs of prohibition preventing the detention of the plaintiff in immigration detention, an injunction preventing the defendants from continuing to detain the plaintiff in immigration detention or preventing the defendants from restraining the plaintiff from exercising his residual liberty, and for writs of mandamus requiring the defendants to make a determination under s 197AB(1) of the Migration Act 1958 (Cth) (“the Act”) that the plaintiff reside within the community.

The defendants contend that the plaintiff’s application does not disclose an arguable basis for the relief sought and should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

The plaintiff is an unlawful non‑citizen who arrived in Australia from Sri Lanka. He was in immigration detention in Papua New Guinea (“PNG”). On 11 November 2019, he was transferred from PNG to Australia under the former s 198C(2) of the Act pursuant to the first defendant’s approval of a temporary medical transfer to Australia under the former s 198E of the Act. On 9 November 2019, the plaintiff signed an “Agreement of Medical Transfer” which stated, among other things, that the plaintiff was to be transferred to Australia for the purpose of medical treatment and that he would be held in immigration detention on the basis that he was an unlawful non‑citizen. Since the plaintiff was transferred to Australia, he has been detained at the Mantra Bell City Hotel.

The plaintiff was found to have shrapnel in his body, a deformity of his left little finger, tinnitus, headaches, insomnia and Post‑Traumatic Stress Disorder.  While in Australia, he has been given medical treatment for these issues.

In support of his application, the plaintiff contends that his detention in Australia is unlawful because it imposes a more severe level of restraint on him than is appropriate. That contention does not give rise to an arguable basis for the relief sought by the application because it is established that the circumstances of detention under the Act do not bear upon its legality[1].

[1]Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at 499 [21], 506‑507 [46]‑[53], 543 [176], 561 [223].

The plaintiff also contends that his detention is not for a permissible purpose.  This contention seems to be based on the assertion that, because of the COVID‑19 pandemic, he cannot be removed to another country.  That the pandemic may delay the plaintiff’s removal from Australia does not in any way suggest that the plaintiff was not transferred to Australia to receive medical treatment or that, because of that temporary purpose, his detention is not for the purpose of his removal from Australia[2].

[2]Plaintiff M96/2016 v Commonwealth (2017) 261 CLR 582 at 594‑596 [23]‑[28].

The plaintiff also contends that he was brought to Australia from PNG under duress. The plaintiff’s evidence does not support that contention. In particular, there is no evidentiary basis for concluding that the Agreement of Medical Transfer was not made with the plaintiff’s genuine consent. If such evidence were to be adduced, there would need to be a trial of disputed questions of fact. But in any event, this contention cannot support the relief sought. The manner in which the plaintiff was brought to Australia has no bearing upon the legality of his continued detention. The legality of his detention is established by the provisions of the Act.

As to the plaintiff’s claim to mandamus requiring the making of a residence determination under s 197AB(1) of the Act, the issue of mandamus to compel the exercise of the power conferred by s 197AB(1) would be contrary to the express provision of s 197AE of the Act pursuant to which the exercise of the power conferred by s 197AB(1) is non‑compellable. The first defendant is under no duty to consider whether to exercise the power, or to exercise it in any particular circumstances. That being so, and contrary to the plaintiff’s contentions, whether or not policy guidelines relating to the exercise of the power have been complied with by the defendants is not a question that goes to whether obligations of procedural fairness to the plaintiff have been engaged in relation to whether the power should be exercised[3].

[3]S10/2011 v Minister for Immigration (2012) 246 CLR 636 at 654‑655 [50], 668 [100], 673 [119]; Minister for Immigration v SZSSJ (2016) 259 CLR 180 at 200 [53]‑[54].

The plaintiff also contends that the first defendant made comments in Parliament and in the media which give rise to a reasonable apprehension of bias in advance of being asked to exercise his power under s 197AB(1) of the Act. This contention cannot be accepted. It is well settled that the circumstance that a decision‑maker formed a view before coming to consider the exercise of power under the Act is not, of itself, a circumstance that is apt to render a decision voidable for apprehended bias[4].

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

The plaintiff’s application does not show an arguable basis for the relief sought in his application.  The application should be dismissed.  The plaintiff must pay the defendants’ costs of the application.

AT 9.30 AM THE MATTER WAS CONCLUDED