WAJV v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1216

FEDERAL COURT OF AUSTRALIA

WAJV v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1216

MIGRATION – appointment of medical specialist – escape of applicant from custody – no reasonable basis for the application proceeding in the circumstances – application dismissed

Judiciary Act 1903 (Cth) s 39B

Federal Court Rules O 20 r 2, O 54B r 1, O 54B r 5

La Roche v Cormack (1991) 33 FCR 414 considered

WAJV V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W57 of 2003

RD NICHOLSON J
31 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W57 OF 2003

BETWEEN:	WAJV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	31 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The respondent’s motion dated 10 June 2003 be allowed.

2.The application dated 13 March 2003 be dismissed.

3.The applicant pay the respondent’s costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W57 OF 2003

BETWEEN:	WAJV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	31 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. For the respondent a motion is brought seeking orders from the Court that the application be generally dismissed on the ground that it discloses no reasonable cause of action, is frivolous or vexatious or is otherwise an abuse of process.

2. The relevant circumstances in which the notice of motion falls for consideration are as follows:

3. On 13 March 2003 an application was brought under s 39B of the Judiciary Act 1903 (Cth) for an order that the respondent appoint a medical specialist to certify whether the applicant can be properly cared for in immigration detention. Interlocutory relief was also sought restraining the respondent from removing the applicant into immigration detention pending the appointment of a medical specialist.

4. The application was supported by the affidavit of Ms Margaret Le Sueur sworn on 13 March 2003.  Annexures to that affidavit stated that on 15 January 2003 the applicant was transferred from the Port Hedland Immigration facility and admitted to Graylands Hospital.  There he was assessed by Dr Tielman, a consulting psychiatrist, as suffering from major depressive disorder.  The applicant was treated in the hospital with significant improvement but as at 6 March 2003 was not yet asymptomatic.  In a letter of 6 March 2003, Dr Tielman stated the applicant was expected to be ready for discharge in the near future.  He also expressed the opinion that the applicant was a high risk of relapse and suicide if returned to a detention centre and his best chance of recovery was to be managed in the community.  If that was not possible, Dr Tielman suggested accommodation in a detention centre that has a management unit to ensure proper supervision and care.

5. On 21 February 2003 the Department of Immigration and Multicultural and Indigenous Affairs (‘DIMIA’) was asked by Ms Le Sueur on behalf of the applicant to appoint a medical specialist to assess and certify that the applicant cannot properly be cared for in immigration detention.  In a reply dated 3 March 2003, DIMIA declined to seek further medical assessment stating it was satisfied that the applicant was receiving appropriate care and treatment.

6. In March 2003 the applicant was discharged from Graylands Hospital and, pending transfer to the Baxter Immigration Detention facility (‘Baxter’), was temporarily detained in a motel close to the Perth Airport Detention Centre.

7. On 18 March 2003 the applicant filed a notice of motion for leave to join DIMIA as a party to the application and amend the application.  By a consent order made on 19 March 2003 the application and the notice of motion were adjourned sine die.  In conjunction with that consent order, the respondent gave an undertaking to the Court that included:

   (a)writing to Dr Tielman requesting his opinion on whether the applicant can be properly cared for at Baxter;

   (b)not removing the applicant from his present location in the Perth metropolitan area until –

   (i)a decision is made as to whether to appoint a medical specialist for the purposes of reg 2.20(9) of the Migration Regulations;

   (ii)the applicant was given 3 clear business days written notice of the decision.

8. In the affidavit filed on behalf of the respondent and sworn by Mr Timothy Carey on 14 May 2003, it was stated among other things that a letter from DIMIA to Dr Tielman was sent on 14 May 2003 seeking his opinion on whether the applicant could be properly cared for at Baxter.  Dr Tielman answered by a letter dated 15 May 2003 in which he stated:

   ‘I have not seen [the applicant] for about two months or so, therefore I am not aware of his current state and circumstances.  His needs will depend entirely upon these.

   Under these conditions I can only provide a very general opinion.  The best place for [the applicant] is where he feels most comfortable to be.  If this is not possible, it is the responsibility of the Department of Immigration to decide on and provide the best environment, based on the assessment of [the applicant’s] current needs.’

9. On 10 June 2003 the respondent filed a motion for the application to be dismissed generally.  In Mr Carey’s affidavit sworn on 10 June 2003 in support of the notice of motion, he deposes that he had received instructions from DIMIA that between 1.00 am and 3.20 am on 27 May 2003 the applicant escaped detention at the motel where he was being kept in accordance with the undertaking and, despite attempts to locate the applicant, he remains at large.

10. Mr Carey’s letter dated 28 May 2003 to the applicant’s solicitors informed them of the applicant’s escape and that the undertaking had consequently been rendered inoperative and when the applicant is returned to detention DIMIA’s usual procedures will be followed. 

11. On 7 August 2003 the Court directed that the respondent’s notice of motion dated 10 June 2003 be determined in chambers upon the filing of any affidavits and submissions.

12. Before Dr Tielman can provide an opinion on whether the applicant can be properly cared for in immigration detention his current status must be assessed.  Some five months have now passed since Dr Tielman saw the applicant and the longer the applicant remains at large the more important is the need to assess the applicant’s mental state before any opinion can be given on whether the applicant can be properly cared for in immigration detention.  The applicant’s escape from detention has made the necessary assessment impossible, and with no present indications as to the applicant’s whereabouts this situation may continue indefinitely.

13. Even if the application proceeded and the Court decided to order the respondent to appoint a medical specialist as the applicant claims, the order would be ineffectual in the absence of the applicant for specialist medical assessment.  From these circumstances I find that there is a patent futility in the application proceeding.

14. Order 54B r 5 of the Federal Court Rules provides that in applying O 20 r 2 to applications to which O 54B applies, that rule is to be construed as if par (1)(a) read ‘no reasonable basis for the application is disclosed’. Order 54B applies to the making of an application under the Judiciary Act 1903 (Cth) in relation to certain decisions under the Migration Act 1958 (Cth): O 54B r 1. Where there is futility in an application there is no reasonable basis for the application.

15. This view is supported by authority that the Court has an inherent jurisdiction to stay its own proceedings where the circumstances have deprived an application of practical significance:  La Roche v Cormack (1991) 33 FCR 414.

16. It is relevant to this matter that the applicant’s rights as against the respondent will not be lost by the dismissal or stay of the present application. The High Court’s jurisdiction under s 75(v) of the Constitution and, subject to the Migration Act 1958 (Cth), the Federal Court’s jurisdiction under s 39B of the Judiciary Act 1903 (Cth) exists generally over the actions of Commonwealth officers and can be invoked by the applicant should the need subsequently arise.

17. I do not consider that the inadvertent failure on the part of the respondent to comply with the requirement of undertaking number 3 to copy any communication received from Dr Tielman to the applicant as soon as reasonably practicable after receipt has any disentitling effect.  The breach was accepted on the part of the respondent and is not in contest that it was the consequence of inadvertence arising upon a change of staff. 

18. For these reasons I consider that the respondent’s notice of motion should be granted.  In this case, as the applicant has occasioned the futility as a consequence of his escape from custody, I see no reason why the application should not be dismissed. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice
RD Nicholson.

Associate:

Dated:             31 October 2003

Counsel for the Applicant:	Mr M Howard
Solicitor for the Applicant:	Pullinger Readhead Steward
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Last Written Submissions:	25 August 2003
Date of Judgment:	31 October 2003