SBEG v Commonwealth of Australia

[2013] HCATrans 213

[2013] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide   No A2 of 2013

B e t w e e n -

SBEG

Applicant

and

COMMONWEALTH OF AUSTRALIA

Respondent

Application for special leave to appeal

FRENCH CJ
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 11 SEPTEMBER 2013, AT 9.50 AM

Copyright in the High Court of Australia

MR J.W.K. BURNSIDE, QC:   May it please the Court, I appear with my learned friend, MS C.M. O’CONNOR, for the applicant.  (instructed by Slater & Gordon Solicitors)

MR S.P. DONAGHUE, SC:   I appear with my learned friend, MR M.D. DOUGLAS, for the respondent.  (instructed by Australian Government Solicitor)

FRENCH CJ:   Yes, Mr Burnside.

MR BURNSIDE:   Your Honours, the applicant is in immigration detention although he has been found to be a refugee entitled to our protection.  He is likely to remain in detention indefinitely because he is the subject of an adverse assessment by ASIO.  Since the application for special leave was filed we received limited material explaining the basis of the adverse assessment and for that purpose we seek to rely on the affidavit of Andrew John Baker, which does little more than exhibit the material provided regarding the basis of the adverse assessment.

FRENCH CJ:   Yes.

MR DONAGHUE:   Your Honour, we object to the receipt of that affidavit on the grounds that it would futile for it to be received because in the event that special leave was granted it plainly could not be admitted on the hearing of the appeal, having regard to the Mickelberg line of authorities.  The only purpose of the document, as we understand it, is to produce evidence that goes to the substantive question before the Full Federal Court and there is no point granting special leave on a ground that cannot be agitated on the appeal in the event that leave is granted.

FRENCH CJ:   Mr Burnside.

MR BURNSIDE:   The relevance for the special leave application is that given that there are now about 50 people in indefinite immigration detention because of adverse security assessments it will be important where special leave is sought in any future case to know that it is not possible to draw any conclusions about whether or not the applicant presents any sort of risk to the Australian community depending on the nature of the detention in which they are to be held.

FRENCH CJ:   Just bear with me for a moment.  I am just looking at the draft grounds of appeal at 85 and 86.  How is it relevant to any of those?  Let us assume for a moment we could overcome the difficulty of receiving evidence at the appeal itself.

MR BURNSIDE: The way that case was argued below by the respondent was that the fact of an adverse assessment meant that there had to be guards, for example, in any form of detention in which the applicant was held. In our submission, given that the central question in the case is whether a less damaging form of detention is possible given the asserted conflict between section 5 and section 197AB, in those circumstances the question is can the fact of an adverse security assessment ever be relevant to the decision whether a more lenient form of detention, which may last forever, is available to a person who is suffering in the detention in which they are presently held.

FRENCH CJ:   Yes.  I do not think we will be assisted by it, Mr Burnside.

MR BURNSIDE:   If the Court please.  As your Honours know, the applicant is held in immigration detention potentially forever.  He has been involved in increasing acts of self‑harm including a serious attempt to kill himself.  The trial judge found that if he continues to be held in the current form of detention it is inevitable that his mental condition will deteriorate further and a real risk of a potentially lethal suicide attempt.  His Honour found that the primary cause of the applicant’s psychiatric illness was the incarceration environment in which he was held.  That is an expression which was used by Professor Jureidini.  Professor Jureidini explained it as including such characteristics as intrusive searches, inspection and monitoring by staff, frustration caused by the bureaucracy, and the psychiatrist called for the ‑ ‑ ‑

FRENCH CJ:   Is it correct that there was a finding that an effective treatment or the only effective treatment would be to release him from detention or to have him in a situation where he could come and go as he pleased?

MR BURNSIDE:   No, it was not.  There was a finding that he could only be cured of his problem if he were at liberty, but the distinctly separate point is that his harm will be alleviated the more lenient his conditions of detention, and we did not argue below that he should be entitled to come and go as he would.  What Professor Jureidini said, and I think Professor Mullen agreed, was that it was not possible to treat his condition whilst he was held in his current conditions of detention because, to adopt an analogy, it would be like treating a burns victim while still in the burning building.  But, that does not say it is quite different to say that he should continue to suffer harm by remaining in those conditions, and the evidence was clear, and the findings below were clear that he would not continue to suffer the same level of harm if the particular factors that were identified were removed and that includes that he remains not free to come and go, but not subject to intrusive searches, inspection and monitoring by staff, the bureaucratic cruelty that was referred to and exposure to other people’s distress.

KIEFEL J:   Mr Burnside, in a practical sense, in what alternative circumstances could he be held which would both alleviate his condition and constitute detention within the meaning of the Act?

MR BURNSIDE:   What was proposed by Professor Jureidini was that he should be housed in a community setting, in particular, a house run by the Hotham Mission, provided that was declared to be an alternative place of detention and that the people caring for him would be ‑ ‑ ‑

KIEFEL J:   Well, that is the question.  Was there any finding?  Was there any finding about whether it did constitute detention?

MR BURNSIDE:   That is a question of law.  In our submission, it plainly does constitute detention provided he is held by or on behalf of an officer in a place of detention.  An alternative place of detention can be declared and that can include places in the community, it already happens in numerous cases, and the carers who would be responsible for his mental health would be declared to be officers so that he would then be in immigration detention. 

The argument at trial and below was that it would look like community release pursuant to section 197AB and, in our submission, the fact that it has outward characteristics of that sort of release does not prevent it from being ordered and especially it ought to be ordered in circumstances where that mode of detention removes the most harmful aspects of his present mode of detention.

KIEFEL J:   The Full Court do not appear to have considered detention in the way for which you contend.  They considered detention involves restraint by an officer in a particular place.

MR BURNSIDE: Yes, restraint by an officer, but more particularly, restraint by a guard and they seem to have been influenced in that by reference to the fact that there had been an adverse security assessment. Now, what the logical connection is is difficult to see but, in our submission, it is important to recognise that nothing in the legislation requires that people be supervised by guards with the paraphernalia of uniforms and the like, and neither is there anything in the Act that prevents a person from being detained by a social worker, for example, who is declared to be an officer for the purpose of section 5.

FRENCH CJ:   Now, you are seeking injunctive relief - and I am looking at the orders sought in your notice of appeal at the application for special leave at 83 - you are seeking injunctive relief which really has the character of mandatory orders in relation to terms and conditions of detention and all of that rests upon a cause of action in negligence against the Minister, does it not?

MR BURNSIDE:   It does.  In our submission, given that even the Commonwealth’s psychiatrist accepted that the continued detention in his present circumstances is likely to result in his suicide, in our submission it is appropriate that orders should be made restraining the Commonwealth from continuing to detain him in conditions which have been identified as harmful and which are not necessary for him to remain in immigration detention according to the definition.

FRENCH CJ:   Well, it goes further than that.  It would require the Commonwealth to detain him in a place that has residential facilities staffed by suitably qualified health workers and/or social workers in a supportive residential or family‑based environment.

MR BURNSIDE:   That is so, and that is a fair description of the Hotham Mission house ‑ ‑ ‑

FRENCH CJ:   Also requiring the Commonwealth to provide access, by injunction:

access to suitably qualified psychiatric, clinical psychological and mental health facilities and treatment as recommended from time to time by a psychiatrist of the Applicant’s choice.

That seems to be a lot to rest upon a cause of action in negligence.

MR BURNSIDE:   Well, the point is, of course, that what has been identified in the evidence is a continuing tort of negligence by continuing to hold him in conditions likely to lead to his suicide.

KIEFEL J:   Why do you ground the duty at common law and not under the statute?

MR BURNSIDE:   I did not have a role in preparing the statement of claim or running the trial so I cannot answer that is probably the only answer I can give.

KIEFEL J:   But would not the duty arise under the statute?  Would you not look for it first there?

MR BURNSIDE:   The fact that the statue permits indefinite detention, in our submission ‑ ‑ ‑

KIEFEL J:   Would usually carry with it correlative duties, would it not?  It would carry with it ‑ ‑ ‑

MR BURNSIDE:   I beg your pardon.

KIEFEL J:   Normally that power would carry with it correlative duties.

MR BURNSIDE:   Yes, and the most obvious duty, in our submission, is a duty to take reasonable care for people who are subjected to the provisions of the Act.  That is the way it has been argued up to the present.  Now, in our submission, the case is important because the High Court in Behrooz held that the conditions in which a person is held in immigration detention do not prevent that from being immigration detention as defined in the Act.

FRENCH CJ:   That went to the lawfulness of the legality of the detention in the context of escape, did it not?

MR BURNSIDE:   Correct.  The argument was that if the conditions were beyond anything that could have been explicitly authorised then it ceased to be immigration detention of the sort the Act speaks of.  The Court held against that argument but emphasised the point that a person who was mistreated in immigration detention would retain civil remedies.

FRENCH CJ:   But if there is a duty of the kind that you say there is and, as Justice Kiefel has put to you, an incident of the statutory powers and obligations, that would be a matter in which mandamus would be the appropriate remedy, would it not, in the original jurisdiction, for example, of this Court or in the 39B jurisdiction of the Federal Court?

MR BURNSIDE:   Yes, your Honour, and if it had been put that way below we would probably be here arguing that point.

FRENCH CJ:   It is just a very big superstructure on top of a common law tort.

MR BURNSIDE:   Yes.  I should say you will have noticed from the Commonwealth’s response that they do not deny that they owe a duty of care and it is plain from the findings that the court below identified features, non‑essential features we would say, of his conditions of detention which are causing him harm and which will continue to cause him harm, potentially fatal harm, and the question then is, if, taking Behrooz as good law, why should the Court not be able to grant injunctions which ameliorate the conditions by removing those which are not essential to the nature of immigration detention as defined in section 5?

FRENCH CJ: Well, now, what the Commonwealth puts against you is that you face concurrent findings of the primary judge and the Full Court that the applicant did not show that an alternative form of detention would both satisfy the requirements of section 5(b)(v), that is something susceptible of approval by the Minister as detention, and have a real likelihood of significantly alleviating the risk of harm, which is all of course tied back to the cause of action in negligence.

MR BURNSIDE: In our submission, they are wrong in saying that there were those findings. In fact, what was found is that there are elements of his present detention that are harming him and will continue to harm him. They are not elements which are essential to the section 5 definition of “immigration detention”. Well, what they seem to be referring to is the evidence that to eliminate the risk and be able to repair the damage which he has suffered it would be necessary for him to be able to come and go. Now, the ability to come and go would be more consistent with a community release under section 197AB.

FRENCH CJ:   Well, that is a non‑compellable power, so we are not in that territory.

MR BURNSIDE: Exactly so, but the question then was, well, if ameliorated conditions, short of a “come and go” entitlement, if ameliorated conditions are possible under section 5 does the existence of 197AB preclude an order requiring those conditions in circumstances where outwardly it may appear to be a 197AB release, which we would submit it is not. The fact that it looks outwardly like a 197AB release, in our submission, cannot prevent the conditions of what is, as a matter of law, immigration detention from being ameliorated as far as they can be, and one of the most important elements that would be removed, in our submission, is the constant presence of guards. He can still be held on behalf of or by an officer without there being prison guards present at all times.

FRENCH CJ: Section 5(b)(v) of course is only directed to “another place approved by the Minister”. It still has to ‑ ‑ ‑

MR BURNSIDE:   The evidence was that at least one of the Hotham Mission premises was already declared as an alternative place of detention.  The point is that given that there is statutory power for the Minister to declare any place at all to be an alternative place of detention, and to declare anyone appropriate to be an officer then, in our submission, the fact that the evidence disclosed that the harm that is continuing can be reduced, even if not eliminated entirely, by placement in an alternative place of detention with appropriate staff then, in our submission, there is no reason why it should be said that that cannot be done. 

It is a striking case given that it was common ground between the witnesses, or both parties, that this man is likely to end his own life unless the most intrusive aspects of the detention regime to which he is presently subjected are removed, and that can be done pursuant to section 5(b)(v). Can I say for clarity, the respondent at paragraph 20 point 6 of their submission is wrong in asserting that only a “come and go” style of detention was sought. That was not the case at all.

FRENCH CJ:   Which paragraph was that?

MR BURNSIDE:   It is point 6 of paragraph 20.  It is on page 102 of the application book.

FRENCH CJ:   Yes, line 20 something, I think.

MR BURNSIDE:   Correct.

FRENCH CJ:   Yes, paragraph 6.

MR BURNSIDE: That simply mistakes the way the case was put at trial and on appeal. We accept that a “come and go as he pleases” would not be compatible with section 5 detention, neither was it sought, and the court below accepted at paragraph 77 that immigration detention is a continuum running from the kind of harsh conditions that he is presently in through to something that looks like ordinary community living. Now, I notice the time ‑ ‑ ‑

FRENCH CJ:   Thank you, Mr Burnside.

MR BURNSIDE:   So does the clock.  Yes, if the Court please.

FRENCH CJ:   Yes, Mr Donaghue.

MR DONAGHUE:   Your Honours, in our submission, special leave should be refused in this case because the applicant has insufficient prospects of disturbing the key factual findings that were made against him by the trial judge and upheld unanimously by the Full Court, and that in those circumstances the case is a bad vehicle to raise any of the wider legal points that the applicant seeks to pursue.  As Mr Burnside pointed out in his submissions, it has never been in dispute in this case that the Commonwealth owes a duty of care to the applicant to take reasonable care for his safety while in detention. 

The applicant failed, not because of any dispute about the existence of that duty, but because he did not establish as a fact that there was a detention option available that would comply with the Act and that would improve his mental health.  There are really three passages in the Full Court’s judgment I should take the Court to to make that good.  The first is paragraph 57 on page 72 of the application book.  The Full Court said:

In this case the appellant did not present a coherent case of an alternative mode of detention which could feasibly have been adopted as a mode of “immigration detention”, and which would have alleviated his disorder.

Then their Honours go on to explain some of the details of that conclusion.

KIEFEL J:   Does the critical element come down to whether or not the accommodation to which they referred, the Hotham Centre, constitutes detention?

MR DONAGHUE:   Yes, whether there would be a restraint sufficient to meet the statutory meaning of the word “detention”.

KIEFEL J:   You say it means restraint by an officer?

MR DONAGHUE:   Yes, but it does not just mean in the company of an officer or living together with someone who has been designated as ‑ ‑ ‑

KIEFEL J:   As an officer being able to exert control?

MR DONAGHUE:   It does and that was the element that was missing.  It was never identified that there was a feasible way of achieving that kind of arrangement, as had been suggested, and really the applicant’s case below did not even really try to get there.  The main case was that the Commonwealth should devise such an arrangement so that the relief sought was to, by injunction, restrain the Commonwealth from detaining the applicant in any of the available detention options and then to say you sort it out in terms of creating a mechanism without it being at all clear that it was possible to do so in – now, your Honours, in addition to that finding, at 65 on page 74 their Honours refer to the:

fatal deficit in the appellant’s case that there was no coherent articulation of the arrangements which, while not allowing the appellant to come and go within the community free of compulsory restraint, would nevertheless reduce the adverse effects of detention –

Then, to the same effect, on page 77, paragraph 78, the conclusion:

For the reasons given above, we consider that the appellant has not established a factual basis for concluding that an order which might alleviate his condition would be made consistently with the statutory requirement for his detention.

So we submit that it is clear from those passages that the applicant lost on the facts and so for that reason, we submit there is no prospect that the applicant will overcome those factual findings on appeal and that the matter is therefore a bad vehicle to raise any wider questions. 

I should, your Honour, say something about the medical evidence and the factual findings that were made at trial because we take issue with the submissions that Mr Burnside has made about those matters this morning.  While the applicant says it was never their case that they never ran a “come and go as you please” case at the trial the effect of the medical evidence from both medical experts at the trial was that it was the detention experience itself rather than the place of detention or the manner of detention that was causing the applicant harm and so the only way to avoid that harm was to remove the detention experience.

FRENCH CJ:   Now, that was medical evidence that he could only be, in effect, cured by release from detention.  Was there a finding to that effect?

MR DONAGHUE:   There was, your Honour.  In paragraph 86 of the trial judge’s reasons on page 26 of the application book, the first sentence the trial judge said – and these, your Honour, if you look back at the previous page, paragraph 83, these are:

The findings I make with respect to the medical evidence . . . 

Thirdly, the only effective treatment for the applicant’s condition is release from the detention or incarceration environment.

His Honour then goes on to discuss some of the supporting evidence.  The “come and go as you please” reference is a reference to Professor Jureidini, the applicant’s expert.  There is then a reference to a passing remark made by Professor Mullen, the respondent’s expert, that – and I am looking at about line 18:

that “anything that moves towards giving him greater freedom and greater hope for the future will improve –

his condition.  The trial judge notes, and the Full Court picked this up as well, that the applicant built an argument, tried to build a case around that statement, but that was rejected by the trial judge at paragraph 118 of his Honour’s reasons in a finding supported by the Full Court.  So, if your Honours look at the end of paragraph 118 on page 44, his Honour found:

The applicant has not established that the alternative form of detention which he has identified in a very general way would improve his mental health in a material way.  Having regard to the evidence as a whole, general evidence of the type given by Professor Mullen, and referred to above –

which is the reference I have just shown your Honours –

does not establish that proposition.

So, while the applicant now contends in this Court that they did not seek an “all or nothing” arrangement, the effect of the evidence at trial was that they had no choice but to seek such an arrangement because anything falling short of an “all or nothing” arrangement was not going to help on the medical evidence accepted by the trial judge.

Your Honours, having regard to those findings we submit that there are really two independent reasons why the applicant could not succeed.  The first arises from the terms of the statute itself because there can be no breach of a duty of care if there was no power in the Commonwealth to adopt an arrangement that would not have caused the harm.

Your Honours will see the relevant provisions extracted on pages 60 and 61 of the application book. Starting at the bottom of page 60 there is an extract from 189, with which your Honours are well familiar, the important point being that that is the source of the statutory duty to detain. The word “detain” is defined in section 5 of the Act and the Full Court give a partial quotation from the definition in paragraph 22. It means to:

“take into immigration detention or to keep, or cause to be kept, in immigration detention.”

What is missing from the definition, or not quoted by their Honours, are the closing words, which are “and includes taking such action and using such force as are reasonably necessary to do so”.  So in order to comply with the statutory duty under 189 to detain, the officer must not only take the person into detention and keep them there, but must use such force as is reasonably necessary in order to do so and that, in my submission, supports the answer I gave to your Honour Justice Kiefel a moment ago and, indeed, the finding that the Full Court ultimately makes at paragraphs 53 and 54 of its reasons that detention - if your Honours could go to paragraph 53 on page 71 you will see the argument is summarised in paragraph 53 about the Hotham Mission type arrangement, and their Honours then say at the end of the paragraph that that argument fails:

to pay sufficient regard to the terms in which “immigration detention” is defined.

Their Honours then conclude, in the middle of paragraph 55, that the:

more relaxed form of accommodation, especially one with no constraint on the appellant’s ability to come and go as he pleases, is not available under s 5(1)(b)(v) of the Act. Immigration detention involves, in terms, restraint by an officer and being held by –

We submit their Honours were plainly correct in that construction of the relevant statutory provision so that as a matter of law the arrangement that the evidence suggested would be desirable was not available to the Commonwealth.  So on that basis the statute provided a complete answer to the alleged breach.  It is not the case that the Full Court read down the definition of “immigration detention” by reference to the residence determination provisions.  They did make the point that one could have achieved the outcome the applicant sought by making a residence determination, but the Minister declined to do so and there was no challenge to that decision, so it was not in issue before the Full Court.  But, other than making that point, their Honours were not, in an Anthony Hordern‑type sense, seeking to read down or narrow the ordinary meaning of the words of the definition, they simply applied those words. 

So, we submit that the applicant failed, both because the option that the medical evidence suggested was necessary was not available and that they had not proved any intermediate or lesser position that would have been feasible under the Act while causing a benefit to the applicant’s medical position. 

Your Honours, two other points briefly, insofar as our friends rely upon the weight given to the adverse secure assessment, we submit that having regard to the submissions I have already made, it is apparent that the decision in the case would have been exactly the same even if there had been no adverse secure assessment.  The applicant lost on that reasoning, not because some heightened level of detention was necessary because of the adverse security assessment, but because ‑ ‑ ‑

FRENCH CJ:   Well, the legal requirements of detention relevant to the applicant’s argument on special leave are the same regardless of whether there is an adverse security assessment.

MR DONAGHUE:   Precisely, and the essential reasoning of the Full Court is likewise the same.  The adverse security assessment was relevant principally because it seems, as a matter of fact, to have been the reason the Minister decided not to exercise the residence determination power, but for

the ASA it may well be that that power would have been exercised and the situation would have been avoided, but in terms of the relevant legal issues, the ASA was not, we submit, critical.  Had there been an available alternative detention option shown then the question would have arisen, was it a breach of duty to fail to exercise the power ‑ ‑ ‑

FRENCH CJ:   ASA, of course, is not a mandate for continuing detention.  The ASA, and of course that was the subject of recent consideration by the Court, but detention is only justified for the purposes of assessment and removal, is it not?

MR DONAGHUE:   That is correct.

FRENCH CJ:   A removal or grant of a visa.

MR DONAGHUE:   One or the other, and perhaps it will set – possibly depending on the effect of the matter your Honours have recently heard, segregation from the pending removal.  But this case of course is not about the applicant’s immigration status.  Finally, your Honours, were the Court otherwise to get to it, and we say that the Court would not for the reasons I have already identified, there are manifest problems with the injunctive relief that is sought, not only from the point of view of principle in relation to the question of injunctive relief to restrain the commission of the tort of negligence, but because of the detail of the injunction sought here, which does not, in our submission, come close to giving the Commonwealth sufficient guidance as to what it would need to do in order to comply with the order of the Court.  So, for that reason also, the case is not a good vehicle to explore any questions about the availability of injunctive relief in that context.

FRENCH CJ:   Thank you, Mr Donaghue.

MR DONAGHUE:   Thank you, your Honours.

FRENCH CJ:   Yes, Mr Burnside.

MR BURNSIDE: If the Court please, could I deal with that last point first? In our submission, if the Court was otherwise disposed to grant special leave, we accept that the terms of any injunctive relief that may be granted ultimately would be a matter for further consideration. The important thing, in our submission, is to achieve an outcome in which this applicant is no longer subjected to conditions likely to lead to his death and that, so far as consistent with the definition in section 5 of “immigration detention”.

My learned friend referred to paragraph 57 in the Full Court judgment. Paragraph 57 refers to the requirement of restraint. Justice Kiefel asks about the requirement in section 5. Immigration detention is, amongst other things, being restrained by or held by or on behalf of an officer.

We would submit that there is a difference between being held and being restrained and, in our submission, the Full Court was wrong in assuming that being held necessarily requires the presence of guards.  It is clear from the evidence which was accepted below that the presence of guards was one of the aspects of his detention which was a significant cause of his problems.  There is no reason, in our submission, why a care worker, social worker or whatever, employed by the Hotham Mission could not be appointed an officer and effectively prevent the person from leaving the premises as required for the purposes of immigration detention.

Our learned friend made a point based on paragraph 65 of the Full Court’s reasons.  In our submission, what the applicant did below was to put forward an arrangement which at least in principle was capable of alleviating the damaging conditions whilst remaining within the definition of “immigration detention”. 

It is significant though in this context to remember the evidence given by Mr Kelly on behalf of the Commonwealth, Mr Kelly who is employed by the Department, who agreed – and this is set out at paragraph 38 of the Full Court reasons – that all the Commonwealth had looked at was existing forms of detention and had not considered any other form of detention which might be less damaging to the applicant.

In our submission, it misses the point to say what we do already is just good enough, even though it may kill a man.  In our submission, it is plain enough from the evidence he gave that they simply did not consider an alternative that might be less harmful.

Finally, can I draw attention to paragraph 66 of the Full Court reasons in which it is clear that the Full Court thought that guards were needed because of the fact of the adverse security assessment. In our submission, that mistake permeates the judgment because it permeates the idea that guards are a necessary feature of immigration detention. Section 5 does not justify that idea.

FRENCH CJ:   Thank you, Mr Burnside.  The Court will adjourn briefly to consider what course it should take.

AT 10.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

FRENCH CJ:   The applicant seeks special leave to appeal against a decision of the Full Court of the Federal Court which dismissed his appeal against a decision of a judge of that Court dismissing his claim for injunctive relief and damages against the Commonwealth.  His asserted cause of action was negligence in relation to his mode of detention as an unlawful non‑citizen under the Migration Act 1958 (Cth). He suffered mental illness, including a major depressive disorder, an effective treatment for which would have been his release from detention. He contended that immigration detention within the meaning of s 5 of the Migration Act could encompass his housing in a supported residential environment approved by the Minister. However, as has been submitted by the Commonwealth, he faces the obstacle of overcoming concurrent findings of the primary judge and the Full Court that he had not shown that an alternative form of detention would both satisfy the requirements of immigration detention under s 5(b)(v) of the Migration Act and have a real likelihood of significantly alleviating the risk of harm which he faces if he remains in the forms of immigration detention which otherwise exist under the Act.  That submission should be accepted.  In our opinion, the prospects of success on appeal are insufficient to warrant the grant of special leave.  Special leave will be refused.

MR DONAGHUE:   With costs, your Honour?

FRENCH CJ:   Can you resist an application for costs, Mr Burnside?

MR BURNSIDE:   No, your Honour.

FRENCH CJ:   Special leave will be refused with costs. 

AT 10.33 AM THE MATTER WAS CONCLUDED