Federal Court of Australia

AOU21 v Minister for Home Affairs [2021] FCAFC 60

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The parties file submissions on appropriate costs orders in the appeal on or before 4pm on 4 May 2021.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

THE COURT DECLARES THAT:

1.    The applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia.

2.    All of the preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) are met in respect of the applicant.

3.    Section 198AH(1) applies to the applicant.

THE COURT ORDERS THAT:

1.    The applicant’s claims for:

(a)    an order that the applicant be released from detention forthwith;

(b)    an order in the nature of prohibition preventing any officer from detaining the applicant pursuant to s 189 of the Migration Act 1958 (Cth) following his release; and

(c)    a declaration that the applicant’s immigration detention is unlawful;

be dismissed.

2.    Without limiting the discretion of the Judicial Registrar to permit other matters to be raised and agreed between the parties, the questions of:

(a)    whether the applicant will be removed to a regional processing country as soon as reasonably practicable, and if so when any such removal will occur;

(b)    whether the parties seek to have the question of relief by way of mandamus re-agitated before the Court in this proceeding, on the existing evidence or with new evidence; and

(c)    which party should pay the costs of this proceeding

be referred to mediation before a Judicial Registrar of this Court as soon as possible.

3.    Unless the question of costs in this proceeding is resolved by mediation, the parties file submissions on appropriate costs orders in the original jurisdiction proceeding five working days after the conclusion of the mediation.

4.    Each party have liberty to apply, on 24 hours’ notice to the other parties.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT:

1    These two proceedings were heard together. One (NSD1355/2020) is an appeal from orders of the Federal Circuit Court made on 16 December 2020. The other (NSD1378/2020) is an application in the Court’s original jurisdiction for orders in the nature of mandamus, habeas corpus, as well as declaratory and other associated relief. On 23 December 2020 and pursuant to s 20(1A) of the Federal Court of Australia Act 1976 (Cth) the Chief Justice ordered the original jurisdiction application be heard by a bench of three judges, constituted by the same judges hearing the appeal. For convenience, in these reasons we shall describe the appellant/applicant as the applicant.

2    At the hearing, counsel for the then respondents, both Ministers, submitted that given the nature of the applicant’s claims in the original jurisdiction proceeding, the proper respondent in that proceeding is the Commonwealth. The applicant’s counsel agreed the Commonwealth should be a respondent, but submitted the Ministers should remain as respondents for the time being. Accordingly, an order was made joining the Commonwealth as the third respondent. We consider it appropriate not to remove the two other respondents, given the conclusions we have reached on appropriate orders, and given also the responsibility of the Minister(s) for the administration of the Migration Act 1958 (Cth) (the Act).

3    While the applicant has been legally represented in both proceedings by a solicitor, he did not have the benefit of counsel experienced in this jurisdiction. The two proceedings raise important questions of public interest, and involve complex legal questions likely to affect other proceedings in this Court, and in the Federal Circuit Court. Accordingly, the Court considered it was appropriate, in the interests of the administration of justice, for a pro bono referral to be made under r 4.12 of the Federal Court Rules 2011 (Cth), for the appointment of counsel to appear on behalf of the applicant in both proceedings. Mr Johnson of counsel accepted the referral. The Court expresses its gratitude to him and acknowledges his considerable assistance to the Court and to the applicant, supported by his instructor Mr Taylor. The Court was also greatly assisted by the submissions of counsel for the Minister.

4    Both proceedings raise substantively the same underlying issues. First, is the applicant entitled to an order in the nature of mandamus compelling an officer to take him to a regional processing country pursuant to s 198AD(2) of the Act (read with s 198AH)? Second (and in the alternative), is the applicant entitled to an order in the nature of habeas corpus and a declaration that his detention at the date of Court’s orders (and for some time prior to those orders) is unlawful? In the original jurisdiction proceeding, the applicant moved on a further amended originating application filed on 5 March 2021. That is the claim for relief which we have considered.

5    For the reasons set out below, the appeal should be dismissed. In the original jurisdiction proceeding, the applicant is entitled to declaratory relief. He is not presently entitled to orders in the nature of mandamus. He is not in our opinion entitled to orders relating to his allegedly unlawful detention, nor any associated declaratory relief. There should be a referral to mediation for the substantive resolution of the remaining issues between the parties: see paragraphs [225]-[234] below.

Background

6    The appeal concerns orders made by the Federal Circuit Court on an application under s 75(v) of the Constitution, which had been remitted by the High Court to the Federal Circuit Court. In that proceeding the applicant sought relief in the nature of habeas corpus for his unlawful detention after having been brought to Australia from Papua New Guinea for medical treatment. The applicant sought other relief by reference to other causes of action but the Federal Circuit Court refused leave to rely on an amended application to raise these issues. Thus, the main issue before the Federal Circuit Court remained the question of the lawfulness of the applicant’s detention. There were some arguments about a request for the issuing of a subpoena both in the appeal and in the original jurisdiction matter, which were not pursued and need not be further considered.

7    The original jurisdiction application presses the same argument, but by reference to the facts and circumstances as at the date of this Court’s judgment, rather than as at the date of the Federal Circuit Court’s orders. It then adds an application for an order in the nature of mandamus compelling the removal of the applicant to a regional processing centre. This relief was also sought in the appeal, although it had not been sought before the Federal Circuit Court.

8    The difference in the parties’ submissions as between the two proceedings only concerned whether the applicant should be granted leave to rely on an amended notice of appeal in the appeal proceeding, which raised new grounds not raised before the Federal Circuit Court including the mandamus argument. The amendments came about as a result of the appointment of counsel under r 4.12 of the Federal Court Rules, to act for the applicant and therefore no criticism is to be made of the fact of the amendment application. Nevertheless, the respondents contended no leave to amend grounds of appeal should be granted, because the same points are made in substance in the original jurisdiction proceeding and therefore it is not in the interests of the administration of justice to allow new points on the appeal when the same matters can be ventilated in a related proceeding. The applicant’s counsel accepted the force of this submission and while not formally conceding the point, properly submitted that the real area of debate was in the original jurisdiction proceeding. The Court agreed and heard argument on the original jurisdiction proceeding first. That argument occupied most of the hearing. Oral argument on the appeal was heard briefly thereafter.

Evidence and orders

9    An order pursuant to s 37AF(1) of the Federal Court Act, on the grounds set out in s 37AG(1)(a) of that Act, was made at the start of the hearing prohibiting the publication or other disclosure of any information which may identify the applicant.

10    Due to the terms of s 27 of the Federal Court Act, the parties accepted that evidence should be admitted separately on the appeal and in the original jurisdiction proceeding.

11    In the appeal, the applicant read the following affidavit material, which was not all of the material before the Federal Circuit Court:

(a)    Affidavit of Ms Chloe Hillary affirmed 21 May 2020;

(b)    Affidavit of Mr Daniel Taylor affirmed 26 June 2020;

(c)    Affidavit of Dr Firestone affirmed 20 August 2020;

(d)    Affidavit of the applicant affirmed 10 December 2020; and

(e)    Affidavit of Ms Alana Sullivan affirmed 16 December 2020.

12    The respondents read the following affidavit material in the appeal:

(a)    Affidavit of Ms Chloe Hillary affirmed 21 May 2020;

(b)    Affidavit of Mr David Henderson affirmed on 17 November 2020; and

(c)    Affidavit of Ms Nerys Jones affirmed on 17 November 2020.

13    The material in [11] and [12] was also read in the original jurisdiction proceeding.

14    Separately, in the original jurisdiction proceeding alone, the applicant read the following affidavit material, which was not all of the material that had been filed:

(a)    Affidavit of Mr Daniel Taylor affirmed on 19 June 2020 annexing International Health and Medical Services’ (IHMS) clinical records;

(b)    Affidavit of Mr Daniel Taylor affirmed on 22 January 2021, annexing medical reports;

(c)    Affidavit of Ms Noeline Harendran affirmed on 22 January 2021; and

(d)    Affidavit of Mr Daniel Taylor affirmed on 25 January 2021 annexing court documents from the Federal Circuit Court proceedings.

15    The respondents read the following affidavit material in the original jurisdiction proceeding alone:

(a)    Affidavit of Ms Rosina Lacorcia affirmed on 2 February 2021;

(b)    Affidavit of Ms Tracy Byron affirmed on 2 February 2021;

(c)    Affidavit of Ms Rosina Lacorcia affirmed on 12 March 2021; and

(d)    Affidavit of Ms Belinda Gill affirmed on 12 March 2021.

16    Neither party took any objections to the other’s affidavit material. Broadly speaking, this affidavit material covered:

(a)    the applicant’s health and medical records from Papua New Guinea and Australia, kept by IHMS;

(b)    evidence about a medical procedure the applicant had in Melbourne in February 2021;

(c)    reports from independent psychiatrists about the applicant;

(d)    evidence about the applicant’s medical transfer to Australia;

(e)    evidence about the applicant’s requests to be removed from Australia and what has or has not been done about them; and

(f)    evidence about a possible exercise of power by the Minister under s 195A of the Act.

17    After the Court raised some matters with the parties, some additional evidence was adduced. First, the applicant gave oral evidence through an interpreter, and was cross-examined. Where necessary we refer to his evidence below.

18    Second, the respondents tendered the “Clinical Assessment” of the applicant by the Independent Health Advice Panel constituted for the purposes of what was then ss 199A and 198F of the Act. This was the assessment which recommended the applicant’s transfer to Australia for medical treatment, for the purpose of s 198F(2) of the Act. It is an important document in the proceedings.

19    The respondents accepted that since the applicant sought a writ of habeas corpus, and made a claim of unlawful detention, they bore the onus of proof in relation to the lawfulness of his immigration detention. It can be accepted that the applicant bears the onus of proving his claim for mandamus. We return to questions of the burden of proof later in these reasons.

The applicable legislative provisions

20    The aspects of the legislative scheme of the Act which are relevant to resolution of the applicant’s claims fall into two categories: those in the existing scheme of the Act; and repealed provisions relating to the way the applicant was brought to Australia for medical treatment.

21    It is agreed the applicant is a “transitory person”, as relevantly defined in s 5 of the Act:

transitory person means:

…

(aa)     a person who was taken to a regional processing country under section 198AD; or

…

Note 2:    A transitory person who entered Australia by sea before being taken to a place outside Australia may also be an unauthorised maritime arrival: see section 5AA.

22    The applicant arrived by boat at Christmas Island on 24 July 2013 and was taken to Manus Island, Papua New Guinea on 14 August 2013, pursuant to s 198AD(2):

198AD Taking unauthorised maritime arrivals to a regional processing country

…

(2)     An officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country.

…

23     By s 198AD(5), where there are two or more regional processing countries, the responsible Minister is authorised to direct an officer to take a person to a specified regional processing country.

24    The applicant was detained in Papua New Guinea for six years. His claims under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) as against his country of nationality, Iran, were accepted and he was recognised as a refugee in 2016. The evidence does not disclose whether after that recognition he was granted a visa by Papua New Guinea in order that he could remain lawfully in that country but since he remained in detention in Papua New Guinea, it would appear he was not.

25    The applicant experienced serious mental health problems in Papua New Guinea. More will be said later in these reasons about those problems. Under what was then colloquially called the “Medevac” provisions of the Act, introduced by the Sch 6 of the Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019 (Cth), those representing the applicant presented the Department with opinions from two treating doctors for the applicant, which triggered the process set out in what was then s 198E of the Act.

26    Relevantly, s 198E(1)-(4) provided:

198E     Minister’s approval to bring relevant transitory persons to Australia

(1)    If 2 or more treating doctors for a transitory person who is in a regional processing country have notified the Secretary that the person is a relevant transitory person, the Secretary must notify the Minister as soon as practicable.

(2)    A transitory person is a relevant transitory person if:

(a)    the person:

(i)    is in a regional processing country on the day this section commences; or

(ii)    is born in a regional processing country; and

(b)    in the opinion of a treating doctor for the person:

(i)    the person requires medical or psychiatric assessment or treatment; and

(ii)    the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

(iii)    it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

(3)     After being notified by the Secretary that a person is a relevant transitory person, the Minister must approve, or refuse to approve, the person’s transfer to Australia.

(3A)     The Minister must make a decision under subsection (3):

(a)    as soon as practicable after being notified; and

(b)    no later than 72 hours after being notified.

(4)    The Minister must approve the person’s transfer to Australia unless:

(a)    the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or

(b)    the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(c)    the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

…

27    The Minister did not approve the applicant’s transfer to Australia. The respondents adduced no evidence about why he did not do so. The Minister’s refusal to approve the applicant’s transfer engaged the terms of then s 198F of the Act, which involved an independent review of the applicant’s health. Section 198F provided:

198F     Review by Independent Health Advice Panel of refusal on ground that transfer is not medically necessary

(1)    If the Minister refuses to approve a relevant transitory person’s transfer to Australia on the ground set out in paragraph 198E(4)(a), the Minister must notify the Independent Health Advice Panel established by section 199A (the panel) as soon as practicable.

Note: The ground set out in paragraph 198E(4)(a) is that the Minister reasonably believes that it is not necessary to transfer the person to Australia for appropriate medical or psychiatric assessment or treatment.

(2)    As soon as practicable, and no later than 72 hours, after being notified by the Minister, the panel must:

(a)    conduct a further clinical assessment of the person (whether in person or remotely); and

(b)    inform the Minister of the findings of that assessment, including its recommendation that:

(i)     the decision to refuse the person’s transfer be confirmed; or

(ii)    the person’s transfer be approved.

(3)    If the panel does not inform the Minister of its recommendation under subsection (2) within the time required by the subsection, the panel is, at the end of that time, taken to have recommended that the person’s transfer be approved and informed the Minister accordingly.

(4)    After being informed by the panel of its findings and recommendation, the Minister must reconsider the decision to refuse to approve the person’s transfer and either:

(a)    confirm the decision to refuse; or

(b)    approve the person’s transfer.

(4A) The Minister must make a decision under subsection (4):

(a)    as soon as practicable after being informed by the panel of its findings and recommendations; and

(b)    no later than 24 hours after being informed by the panel of its findings and recommendation.

(5)    If the panel recommends that the person’s transfer be approved, the Minister must approve the person’s transfer to Australia unless:

(a)    the Minister reasonably suspects that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act; or

(b)    the Minister knows that the person has a substantial criminal record (as defined by subsection 501(7) as in force at the commencement of this section) and the Minister reasonably believes the person would expose the Australian community to a serious risk of criminal conduct.

(6)    If the Minister does not make a decision under subsection (4) within the time required by subsection (4A), the Minister is, at the end of that time, taken to have approved the person’s transfer under subsection (4).

(7)    The Minister’s powers under this section may only be exercised by the Minister personally.

(8)    A recommendation made by the panel for the purposes of this section must be agreed to by a majority of the panel’s members.

(9)    The regulations may prescribe processes in relation to the exercise of the Minister’s powers under this section.

28    The evidence was that after the Panel had reported, the Minister approved the applicant’s transfer in accordance with the duty imposed by s 198F(5). There was no evidence or argument in this proceeding that the applicant’s circumstances engaged subsections 198F(5)(a) or (b).

29    The applicant was transferred to Australia on 25 July 2019. We summarise what happened to him once he arrived in Australia below. Some time after the applicant arrived in Australia, the “Medevac” provisions were repealed, that repeal taking effect on 4 December 2019.

30    As an unlawful non-citizen, the applicant was detained when he entered Australia, pursuant to s 189 of the Act. Section 196 of the Act relevantly provides:

196     Duration of detention

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)     an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

31    The circumstances in which a person such as the applicant, who is brought to Australia from a regional processing country, is to be taken back to a regional processing country, are set out in ss 198AH(1) and (1A):

198AH Application of section 198AD to certain transitory persons

(1)    Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).

(1A)     A transitory person is covered by this subsection if:

(a)    the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and

(b)    the person is detained under section 189; and

(c)    the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).

Note:     Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).

…

32    Section 198AH(2) should be noted. It provides:

(2)    Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

33    If the terms of s 198AH(2) are met, s 198AD(2) applies to the applicant again, as it did when he first entered Australia.

34    It should be noted there is a provision in s 198 in similar terms to s 198AH(1A). That is s 198(1A), which provides:

(1A)    In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

Note 1:    Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).

Note 2:    Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).

35    On its face, this provision applies to people who are “unlawful non-citizens” rather than people who are “unauthorised maritime arrivals”. Of course, many people (including the applicant) may fall within the definitions for both terms. However, s 198(11) resolves any potential overlap in the operation of these provisions. Section 198(11) provides:

(11)    This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.

36    For that reason, it is only the terms of s 198AH(1A) which are in issue in these proceedings.

The parties’ submissions in summary

37    The parties each filed helpful written submissions before the hearing and, with leave, filed supplementary written submissions after the hearing.

Applicant

38    In his submissions, the applicant contends that from early 2020 he no longer needed to be in Australia for the “temporary purpose” for which he was brought here, and the respondents have failed to establish that he still needs to be in Australia (at [12]-[14]).

39    The applicant contends that at the time he requested to be removed from Australia to Papua New Guinea on 7 December 2020, the Department was of the view that the temporary purpose for which the applicant had been brought to Australia had not been resolved (at [13]). However, the applicant submits that it is a matter for the Court to determine whether the applicant’s presence in Australia is in fact for the temporary purpose. He submits that the evidence shows that his current mental health issues are attributable to detention fatigue, and while this means he may be receiving some ongoing treatment for his mental health, it does not mean that he “needs” to be in Australia for the temporary purpose (at [14]).

40    He alleges his detention is unlawful and the respondents have not taken steps in accordance with s 198AD(2) of the Act to remove him (at [22]). He submits (at [20]) that any belief on behalf of officers of the Department that he continues to require medical treatment for the conditions for which he was transferred is incorrect. He submits that a mistaken belief cannot justify the inaction to remove a person in accordance with the duty under s 198AD(2) of the Act and does not render his detention lawful, relying on AJL20 v Commonwealth of Australia [2020] FCA 1305 at [10].

Respondents

41    The respondents contend that the applicant’s detention is lawful, because, the applicant is still receiving medical treatment in Australia. The respondents submit that the applicant was brought to Australia for the temporary purpose of medical treatment of mental health issues and for treatment of his lipoma (at [8]).

42    The respondents submit that the applicant’s treatment is ongoing, and that there is nothing in the evidence to suggest that the applicant no longer needs to be in Australia for the temporary purpose of medical treatment from early 2020 or anytime (at [10]). Indeed, the respondents submit, an officer of the Department concluded on 12 March 2021 that she believes the applicant still needs to be in Australia for ongoing medical treatment (at [13]).

43    The respondents note that the applicant has been reviewed various times for mental health treatment since his arrival in Australia, and also at times that the applicant has refused to attend scheduled psychiatric appointments (at [6]-[7]). The respondents submit that the applicant’s ongoing medical appointments with a psychiatrist and appointments for removal of the lipoma indicate that the temporary purpose of medical treatment for which the applicant needs to be in Australia still applies (at [18]). During oral submissions, senior counsel for the respondents submitted that once the physical treatment for the lipoma was at an end, with no resulting problems, the temporary purpose would be at an end. He also accepted that the applicant was still undergoing mental health treatment, with various psychiatric appointments, but did not positively contend the applicant no longer needed to be in Australia for mental health treatment. There was some tension in the respondents’ submissions on this aspect.

44    The respondents submit that proper steps were taken in response to the applicant’s request on 7 December 2020 to be removed to Papua New Guinea (at [14]). Once the applicant decided he did not want to be removed to Papua New Guinea on 25 January 2021, the respondents contend the applicant was no longer required to be removed from Australia “as soon as reasonably practicable” pursuant to s 198(1) of the Act, relying on Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582 at [16] per Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ. Additionally, the respondents submit it is not reasonably practicable to remove the applicant to Papua New Guinea because of Ms Gill’s evidence about referral of the applicant for Ministerial intervention consideration.

45    In any event, the respondents submitted, even if the Court were to find that the applicant no longer needs to be in Australia for the temporary purpose, that fact would only trigger an obligation to remove the applicant from Australia “as soon as reasonably practicable”, but would not render his detention unlawful (at [14]). To the extent that an application of AJL20 suggests otherwise, the respondents contended AJL20 was wrongly decided, in summary because it is inconsistent with s 196(1) and the construction of that provision by the High Court in Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562.

Applicant’s supplementary submissions

Relief by way of mandamus

46    The applicant submitted an order in the nature of mandamus could be directed at a number of people. However he contended such an order would most appropriately be directed towards the Secretary of the Department, who is responsible for managing the affairs of the Department (at [4]).

Australia’s non-refoulement obligations

47    The applicant also submitted Australia’s non-refoulement obligations may be engaged if he is to be removed to Papua New Guinea, given his oral evidence that he thought his life would be in danger if returned to Papua New Guinea because of “sexual matters”, referring to his homosexuality (at [8]). The supplementary submissions also pointed to the applicant’s oral evidence that he feared being sent to Nauru. The applicant submitted it is for the respondents to ensure that removal from Australia to a regional processing country is conducted in accordance with, and not in breach of, non-refoulement obligations, and referred to Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; 243 CLR 319 at [27]. Whether it is “reasonably practicable” to remove the applicant to one of the regional processing countries would require, among others things, that the respondents ensure any non-refoulement obligations are properly assessed and taken into account (at [8]).

Respondents’ supplementary submissions

48    The supplementary submissions were expressed to be made on behalf of the third respondent, the Commonwealth. This reflected the respondents’ position that the Commonwealth was the sole proper party to the original jurisdiction proceeding (at least).

Relief by way of mandamus

49    The Commonwealth contended (at [5]) that the Secretary of the Department of Home Affairs is the most appropriate person to whom any order in the nature of mandamus should be directed. The Secretary is the “Agency Head” of the Department under the Public Service Act 1999 (Cth) and by s 20, has the powers of an employer over the officers who would in practice be responsible for arranging to take the applicant to a regional processing country.

Australia’s non-refoulement obligations

50    The Commonwealth pointed to the power of the responsible Minister to decide pursuant to s 198AE whether s 198AD applies to a person (at [8]). It submits that the “Regional processing – Minister’s s198AE Guidelines” (at [21]) state that a person should not be referred to the Minister for consideration unless the person, in the opinion of the relevant officer, has made a “credible claim” that his or her life or freedom would be threatened on a Convention ground, or another similarly serious claim, in each regional processing country. Those Guidelines are not in evidence in this proceeding.

51    The Commonwealth submits the applicant can be assessed under these Guidelines to determine if he has a “credible claim”. The Commonwealth contends that authorities of this Court have held that the fact consideration was being given to a possible determination under s 198AE(1) would not go to whether or not it was “reasonably practicable” to take the applicant to a regional processing country. It relies on NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [52]-[53] and M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131; 131 FCR 146. Despite those authorities, the Commonwealth submits that given the applicant appears to wish to have his claims for protection assessed, an order compelling removal of the applicant should not be made.

Resolution

52    It is apparent from the matters set out to this point that there are some tensions in the parties’ arguments, based on the admissible evidence. In particular, it is somewhat difficult to discern how strongly the applicant presses for an order in the nature of mandamus to compel his return to a regional processing country. We accept the applicant is in an invidious position. The evidence is overwhelming that his present, and acute, mental health conditions are attributed by him (and indeed also by some of the practitioners whose opinions are in evidence) to his ongoing immigration detention. He was clear in his oral evidence that he wishes to regain his personal liberty, an entirely human and understandable desire. His evidence suggested he understood the only way he could be sure of achieving his liberty was to return to a regional processing country where, it appeared to be accepted by all parties, he would not be detained. We pause to observe that if this is not the case, and the applicant is at risk of further deprivation of liberty in Papua New Guinea or in Nauru, the Court is entitled to expect the respondents to make the position clear to the Court, and to the applicant. No such submissions were made, and the applicant was not cross examined to the effect that his understanding about having his liberty in Papua New Guinea or in Nauru was wrong.

53    In those circumstances it is understandable the applicant presses for relief by way of mandamus to compel his return to a place where he can have his liberty. There is no basis in the evidence in this proceeding for the applicant to be confident there is any other way he can regain his liberty.

54    At the same time, his evidence was that his sexual orientation (which was not challenged by the respondents), and his previous experiences in Papua New Guinea which he attributes to that orientation, lead him to fear for his safety if returned to Papua New Guinea. In those circumstances, the submissions made on his behalf quite properly pointed to Australia’s international obligations, and quite properly submitted an assessment would be required before removal. Also quite properly, the Commonwealth accepted that was likely to be the case. It did so on the express basis of the power in s 198AE of the Act. Reliance on the exercise of that power would appear to consign the applicant to further immigration detention in Australia, unless there is a favourable exercise of power under s 195A. The evidence enables no finding to be made about the stage or state of any process in relation to s 195A, nor, what any favourable exercise of power under s 195A might mean for the applicant, in anything other than the immediate short term.

55    There was also some tension in the respondents’ submissions: first, concerning when the temporary purpose had ceased, or would cease; and second, concerning why an order in the nature of mandamus was resisted.

56    Nevertheless, relief by way of an order in the nature of mandamus is pressed, and the Court must ultimately decide that question, as well as the claim of unlawful detention.

Background facts found in the original jurisdiction proceeding

57    We make the following findings of fact, by way of background to the factual and legal issues to be resolved.

The applicant’s oral evidence to the Court

58    Notwithstanding the difficult circumstances of giving evidence over Microsoft Teams, with an interpreter who was in another place, the applicant’s evidence was, we find, genuinely given and clear. He listened carefully to the questions, and clarified his answers where necessary. It was clear he was giving evidence from his active recollection when speaking about past events. He made appropriate concessions in cross-examination. When speaking about his present circumstances, we found his evidence persuasive and reliable. We consider he gave a serious, and deeply felt, account of his current predicament and what he seeks to happen in order to regain his freedom.

59    The applicant repeatedly gave evidence that he felt his mental health had declined in detention, in particular in the last four to five months, and that he did not feel he had received proper treatment for his mental health since his transfer to Australia:

MR JOHNSON: Well, how would you describe the current state of your mental health?

THE INTERPRETER: He says that I swear to my mother life that I’m worse than before, because I can’t sleep at night and I have to take pills for sleeping. I’m trying myself to keep myself positive and help myself that way, and the only thing I do with my telephone handset, I’m watching movies in my room. That’s the way I’m helping myself.

MR JOHNSON: Mr Applicant, when you said that you’re worse than before, what do you mean? Worse compared to when?

THE INTERPRETER: I’m comparing to four/five months ago.

…

MR JOHNSON: So, Mr Applicant, you’ve explained that you can’t sleep or your sleep is affected at the moment; is that right?

THE INTERPRETER: Yes.

MR JOHNSON: And you’ve said that you feel stressed at the moment; correct?

THE INTERPRETER: Yes. At the moment, I have stress.

MR JOHNSON: And are there any other parts of your mental health that you believe are worse now than they were four or five months ago?

THE INTERPRETER: From mental point of view?

MR JOHNSON: Yes.

THE INTERPRETER: He says yes.

MR JOHNSON: And what are they?

THE INTERPRETER: I think a lot, and I have been in detention centre for the last eight years and I have been in limbo. I’m thinking to myself, “What happens to me and what will be my destiny?” One of the other problems that I have in loneliness when I am alone by myself, I’m talking. I don’t know I’m talking to someone or I’m talking to myself. I’m constantly talking, and this is something that makes me worry, as well.

…

MR JOHNSON: All right. Mr Applicant, you said before that in line with your detention for the last eight years that you’ve been in limbo.

THE INTERPRETER: Yes.

MR JOHNSON: And you describe how it makes you feel, that feeling of being in limbo.

THE INTERPRETER: This gives you a special feeling, the sort of strange feeling that gives you this feeling that you are not human and sometimes you cannot breathe and you are all the time in the detention.

MR JOHNSON: And is that feeling that you’ve described, Mr Applicant, is one that you say is getting worse over time?

THE INTERPRETER: Yes.

MR JOHNSON: Do you know, Mr Applicant, whether you are going to be receiving any more treatment for your mental health in the near future?

THE INTERPRETER: Nothing has been told to me. I don’t know anything about it.

…

MR JOHNSON: Mr Applicant, you mentioned a few moments ago that like you’re in limbo, and that that makes you feel not human and you can’t breathe. Are those matters that you have sought some assistance or treatment of in the last few months?

THE INTERPRETER: Okay. When I talk to the medical section, they say, “Talk to ABF”, when I talk to ABF, they tell me, “Go and talk to your case manager”. When I’m asking my case manager, they say that, “We are waiting for Mr Prime Minister to make a decision. So I’m like a ball. They’re passing me to each other. So that’s why I prefer not to talk and keep these things to myself.

60    The applicant’s evidence was that his mental health improved when he thought he would be leaving detention:

THE INTERPRETER: Last year for the first time I had a court hearing, I think it was in August. Okay. When I talk to the psychologist before the court, they ask me, and because they were telling me that I will be free from here, and I was exercising. I told them that I’m exercising, I’m feeling well. They took those positive points that I mentioned, they took it to the court against me, and they didn’t mention anything about the period that I have been in the hospital.

61    The applicant said that he would like to leave immigration detention and live freely in Australian society:

MR JOHNSON: And you mentioned – sorry, I withdraw that. Is it your desire, Mr Applicant, to leave immigration detention?

THE INTERPRETER: You mean freedom?

MR JOHNSON: Perhaps just answer the question, if you can, put as it is.

THE INTERPRETER: Yes. I’m sick and tired of being in detention. I would like to be free in the Australian society and start a new life here.

62    The applicant said he felt very “afraid” to be returned to Papua New Guinea:

… I have this fear that I’m afraid to be sent back to the PNG, and this has made me so much stressed that I can’t sleep.

63    The applicant explained that he felt like his life would be in danger due to his sexual orientation if he were returned to Papua New Guinea, but did also say that he would rather return to Papua New Guinea and “risk his life” rather than remain in detention in Australia:

MR JOHNSON: And you said before, Mr Applicant, that you do wish to leave detention and to be free; is that right?

THE WITNESS: Yes.

THE INTERPRETER: Yes, correct.

MR JOHNSON: And would you seek to be free from detention in Australia, even if it might mean that you need to go back to Manus Island?

THE INTERPRETER: Okay. He says that I – of course, I like to be free and for the – in Australia or even the price is to pay for this freedom is going back to PNG, but because of the sexual matters that I have, I would think my life would be in danger in there.

MR JOHNSON: And when you say that you think your life might be in danger there from sexual matters, can you explain what you mean, Mr Applicant?

THE INTERPRETER: Okay. When I was in PNG, I was receiving the same sort of treatment from people that I was receiving in Iran, that is social violence, threaten to be killed because of my sexuality orientation. So I believe I’m gay and this is not acceptable in the society of Iran that I was living in and in PNG, because that’s a black country. They don’t accept these things and that gives me a fear of my life to feel all the time.

GRIFFITHS J: Does the applicant realise that in coming to the court he’s asking for an order from the court that he be removed from Australia and taken away from Australia to a regional processing country, of which, as I understand it, there are only two: Papua New Guinea and Nauru, as I understand it. Does he realise that?

THE INTERPRETER: Yes, that’s – you know, I’ve been in detention for a long time and I’m sick and tired of being in detention. I would like to be free. If that is possible to keep me in Australia and give me that freedom, that’s good, otherwise I prefer that instead of being in detention to go back to PNG and risk my life to start a life in there. That’s eight years I’ve been in detention and that’s too long.

MR JOHNSON: Mr Applicant, do you have any concern for your life if you were to be returned to Nauru?

THE INTERPRETER: I’m from PNG, not from Nauru.

MR JOHNSON: I appreciate that, but do you have any fear for your life if you were to go to Nauru?

THE INTERPRETER: ..... I don’t know anyone there. I don’t know the people out there, so I would be having fear for my life.

The applicant’s development of mental health problems in Papua New Guinea

64    It is clear from the available material that the applicant’s mental health deteriorated during his period in detention in Papua New Guinea from 2013 to 2019. The applicant’s treating doctor in Australia, Dr Firestone, was provided with documents by the applicant’s solicitor prior to assessing the applicant and he produced a report on 17 July 2020. In his report, Dr Firestone summarised much of this documentation.

65    On 28 September 2013, around a month after the applicant arrived at Christmas Island, the applicant was transferred to Manus Island and his depression, anxiety and stress were assessed by self-report and found to be in the normal range. Dr Firestone noted that he had been provided with a psychiatric interview between Dr Goriparti and the applicant dated 25 November 2013, where Dr Goriparti diagnosed the applicant with adjustment disorder in the absence of clinical depression. Over the next few months to February 2014, the applicant reportedly engaged in self-harm and was given anti-depressant medication. In May 2014 the applicant was given mental health medication and was noted to be sleeping well and attending the gym daily. By November 2014, the applicant changed compounds twice at his request and in December 2014 the applicant was reportedly in good spirits and not taking anti-depressant medication which Dr Firestone notes is indicative of the “volatility” of the applicant’s behaviour. During 2015, the applicant repeatedly raised his sexual orientation with various professionals and in particular his fear that individuals within the compound would find out the information as to his sexual orientation and bully him, and also that the information would be passed on to his family.

66    The applicant reported to various treating doctors that he was raped, first as a child, again in 2012 and also on Manus Island. Dr Firestone reported that the applicant was twice preparing to self-immolate with petrol in 2018 and 2019 but on both occasions was stopped by security staff. There are reportedly no health care records for the applicant between 12 June 2016 and 25 July 2019, and therefore no records of the applicant’s self-immolation attempts were made available to Dr Firestone.

67    In May 2019 the applicant was transferred from Manus Island to the Granville Hotel in Port Moresby, Papua New Guinea where he was assessed by two treating doctors, for the purposes of an application to be transferred to Australia under the “Medevac” legislation. The applicant was diagnosed on 22 May 2019 by his two treating doctors with major depressive disorder with psychotic symptoms or features. One of the applicant’s treating doctors opined that the applicant may also be suffering from paranoid psychosis with secondary depressive symptoms. The applicant reported feeling depressed every day for much of the year prior to May 2019, staying indoors for most of the day, experiencing weight loss, a poor appetite and poor sleep, frequently sleeping around one hour a night and staying up without sleep for 48 hours at a time. The applicant also reported a poor recollection of dates and times and ongoing low mood and feelings of worthlessness and hopelessness. The applicant reported severe anxiety symptoms that prevented him from sleeping, as well as, one of his doctor’s opined, undiagnosed post-traumatic stress disorder.

68    From early 2018 and continuing until at least when the applicant was seen by his treating doctors in May 2019, the applicant reported experiencing “constant” auditory hallucinations. One of the “voices” “told” the applicant to self-harm, which the applicant found “difficult” not to follow and the applicant engaged in self-harm.

69    The applicant was prescribed various medications to treat his mental health while on Manus Island. Once the applicant was transferred to Port Moresby in May 2019 it appears that the applicant’s access to this medication was restricted. One of the applicant’s treating doctors in May 2019 noted that “acutely ceasing” the relevant medication “can lead to significant side effects and withdrawal symptoms”.

70    On 11 June 2019 and 16 June 2019, the applicant had further interviews with his treating doctors, who each noted that the applicant had continued to have poor sleep as well having engaged in further self-harm episodes in the intervening weeks. The applicant was reported to have been prescribed mental health medication by a psychologist on 11 June 2019. However, one of the applicant’s treating doctors noted that the doses of the medication the applicant had been prescribed were lower than previous doses the applicant had been prescribed and were likely ineffectual to treat the applicant’s psychosis.

71    In the various reports by the applicant’s two treating doctors, under the heading “Is it necessary to remove [the applicant] from PNG for appropriate medical or psychiatric assessment and treatment?”, there is no reference to what was subsequently diagnosed as a lipoma as constituting a reason to transfer the applicant to Australia.

72    Each of the applicant’s treating doctors expressed the opinion that the applicant needed to be urgently moved to a closely monitored facility in Australia where mental health treatment could be administered, and that Papua New Guinea did not have the required facilities to treat the applicant. The applicant was found by one of his treating doctors to be in need of urgent transfer to Australia to be assessed by a multi-disciplinary mental health team and either an emergency specialist or general medical specialist team. The applicant’s other treating doctor determined that electroconvulsive therapy may be appropriate. The applicant’s two treating doctors both independently found that death from self-harm was a possible outcome of the applicant not receiving the relevant treatment.

The Panel’s assessment of why the applicant should be transferred to Australia

73    We have noted at [27] above that the Minister did not accept the opinions of the applicant’s two treating doctors, and refused to transfer the applicant to Australia for any medical treatment. That led to the review by the Panel pursuant to the then s 198F of the Act.

74    The Panel met to discuss the applicant on Saturday 13 July 2019 at 3 pm. Its report only briefly mentioned the applicant’s lipoma. It found that the applicant’s mental health was “deteriorating” and the treatment he was receiving at Pacific International Hospital in Port Moresby was “insufficient”. The Panel unanimously recommended the applicant be transferred to Australia as a matter of urgency. We make further findings about the Panel’s report below.

What happened to the applicant when he arrived in Australia

75    On 25 July 2019, the applicant arrived in Australia and was detained in Melbourne Immigration Transit Accommodation (MITA). The applicant appears to have not been seen by any health professionals until September 2019, where he was “reviewed” by an IHMS nurse, and again in December 2019, and January, March, April and May 2020.

76    The applicant was “monitored” by the IHMS mental health team after making threats of self-harm in September 2019, and also in March 2020 and April 2020. In particular, on 10 September 2019, the applicant made threats of self-harm and was found tying sheets together in the form of a noose and was put on “Supportive Monitoring and Engagement” observations, where he reported being unable to sleep and feeling overwhelmed due to being in detention and legal issues. He also refused antidepressant medication. The “Supportive Monitoring and Engagement” observations were stopped after a week on 17 September 2019.

77    On 14 October 2019, the applicant was “reviewed” by a psychiatrist, Dr Spencer, for (it appears) the first time since his transfer to Australia more than two months previously despite the Panel’s express recommendations. Dr Firestone noted Dr Spencer’s conclusion that in October 2019 the applicant was not taking any psychiatric medication. We return to this review below at paragraph [179]-[181].

78    In December 2019, the applicant was assessed by an IHMS nurse to have low mood and frustration associated with “detention fatigue”.

79    On 15 April 2020, the applicant was reviewed by an IHMS psychiatrist and noted to have no evidence of psychiatric illness, however was noted to have

psychological factors related to prolonged detention and uncertainty regarding the future. [Applicant] was for weekly counselling sessions, however did not attend his follow up appointment on 21 April 2020.

80    The applicant was hospitalised at various times during 2020 for mental health issues. On 5 May 2020, the applicant was taken to Northern Hospital because of “suicidal ideation” after he was unresponsive when asked if he could guarantee his own safety. The applicant was discharged from hospital back to the MITA the next day. In the discharge report, the treating doctor did not recommend follow up with a private consultant, but did recommended further psychological support via counselling.

81    On 10 May 2020, in its “health summary”, the IHMS noted the following ongoing treatment should be provided to the applicant:

•    GP review as required

•    Await confirmation of lipoma surgery date

•    Ongoing [Supportive Monitoring and Engagement] review and observations 

•    Follow up with mental health team.

82    On 11 May 2020, in a further IHMS “health summary”, the applicant was reviewed by an IHMS nurse and reportedly “appeared settled” and “denied” any current thoughts of self-harm. The applicant’s “Supportive Monitoring and Engagement” was downgraded from daily to weekly. On 18 May 2020 the applicant was reviewed by an IHMS nurse who apparently found the applicant “in good spirits”. The applicant’s “Supportive Monitoring and Engagement” was ended as a result. On 20 May 2020 the IHMS recommendations for ongoing treatment remained unchanged from its summary on 10 May 2020.

83    However, Dr Firestone noted in his report that on 14 June 2020, that the applicant was found at the MITA, “sitting outside, naked under a blanket”. The applicant was taken by ambulance to the Royal Melbourne Hospital Casualty department and two days later the applicant was transferred to the Broadmeadows Mental Health Unit. Dr Firestone noted that psychiatrist Dr Gabrielle made a provisional diagnosis of psychotic depression of the applicant and instituted anti-psychotic treatment. However, on 23 June 2020 the applicant was

still hearing voices…commanding him to hurt himself.

84    Dr Firestone summarised the medical certificate dated 26 June 2020 of Dr Miriyala of the Broadmeadows Psychiatric Inpatient Unit, which diagnosed the applicant with complex post-traumatic stress disorder, and expressed the opinion that detention was negatively affecting his mental health and potential recovery. Dr Miriyala apparently recommended the applicant continue to receive treatment following his discharge from the hospital, and that the applicant be held in a less stressful environment than the MITA.

85    The applicant attended the emergency department at Northern Hospital twice in July 2020, once after threatening self-harm after “allegedly hearing voices telling him to harm himself” and the second time for ingesting shampoo, where he was assessed by the mental health team at the emergency department and placed on “Supportive Monitoring and Engagement” for “enhanced compliance” for two weeks. The applicant stopped taking his mental health medication in August 2020 and an IHMS psychiatrist determined that

there were no current concerns to treat or intervene against his wishes.

86    Over the next few months to November 2020, the applicant’s mental health is recorded as “generally improved”, he was not taking any medication and reported “sleeping and feeling much better”. However, in contrast to this kind of record are other records, such as that contained in a “Case Plan report” identified as being “as at 27/10/2020”. This report states:

Comments: 24/04/2020 - SRIO Ilknur contacted detainee over the telephone as part of monthly review and discussion.

[The applicant] sounded frustrated about the length of time pertaining to his lengthy detention during this exchange.

He was also concerned that he was not receiving adequate treatment for his mental health condition in detention and stated:

•    The doctors here can’t help me.

•    They only ask me three questions:

•    do you want to hurt yourself?

•    Do you want to return to your country?

•    Do you love Australia ?

•    After that they only give me sleeping pills and let me go

•    I need to be in hospital because it affects me waking up and seeing the detention fence

He also made the below concerning comments related to self-harm, which I would like to raise:

•    Should I just be quiet and wait for death

•    Should I hang myself

MITA South FOM was notified regarding the above comments related to self–harm at 12:15hrs.

87    On 22 January 2021, the applicant’s migration agent Ms Noeline Dilhara Balasanthiran Harendran deposed that she spoke to the applicant, and he said:

“I am not in a good way” and could not continue the conversation.

88    The applicant did not resume mental health medication after August 2020 and did report having thoughts of self-harm. He attended appointments with a psychiatrist in December 2020 and February 2021 where the psychiatrist noted that the applicant’s threats of self-harm were made in the context of “severe detention fatigue”.

89    This evidence is consistent with the applicant’s own evidence, to the effect that the main “treatment” the applicant has received concerned whether he needed to be placed on what the applicant called “high watch”, but what appears in the IHMS records to be described as “keep safe”: see [173]-[174] below. It may also be the same monitoring as is referred to elsewhere by the term “Supportive Monitoring and Engagement”. The applicant’s evidence was as follows:

MR JOHNSON: Now, in relation to your mental health, what treatment have you received since you’ve been in Australia?

THE INTERPRETER: Okay. Last year the once when I was not mentally feeling well, I was naked outside and then they pick me up and took me to the mental hospital for about two weeks and that was, they told me, “This is the treatment you will receive for that”.

MR JOHNSON: So you’ve received some treatment in a hospital?

THE INTERPRETER: Yes, I was in mental hospital and they were only giving me pills.

MR JOHNSON: And you also received treatment for your mental health at the detention accommodation?

THE INTERPRETER: Yes. I can’t recall exactly, but that’s while that mental health is not calling me anymore.

MR JOHNSON: Have you received mental health treatment in detention in the past?

THE INTERPRETER: Okay. Whenever they were calling me to the mental health they were asking three questions. That if I am feeling okay, if I am having the suicide thoughts or am I going to harm anyone. If I was – one of my answers were negative, that was – I didn’t get what he said, I ask him – and then the otherwise I have to answer positively. Okay. If my answers were negative, then they would give me some security officer to watch me. They were forcing me to tell them that I’m okay.

90    The applicant said he had not seen a psychologist or other mental health care professional to discuss his mental health issues at all in the six to seven months prior to his evidence. The applicant said that although he had been visited in the last three months by a nurse or psychologist he had sent them away because he “wasn’t feeling well” and didn’t want to talk to anyone.

MR JOHNSON: Yes, your Honour. Mr Applicant, what mental health treatment have you received in the last four to five months?

THE INTERPRETER: Nothing.

MR JOHNSON: Has any security officer at the immigration accommodation been required to observe you during the last four to five months?

THE INTERPRETER: Yes. That is what their job is.

…

MR JOHNSON: In that period of time, the last four to five months, Mr Applicant, have you been assessed or been treated by a psychiatrist or other medical professional?

THE INTERPRETER: Okay. I have received these appointments and – I don’t know if you are aware of the system that exists here. They only ask you questions and they get the answers to the question and let you go.

MR JOHNSON: So when you say that you’re being asked questions, who is asking you the questions?

THE INTERPRETER: The nurse or psychologist.

MR JOHNSON: And I think you mentioned this earlier, is it the case that if you answer a certain question a certain way security officers then monitor you; is that right?

THE INTERPRETER: Yes. That’s called high watch.

…

MR JOHNSON: When was the last time, Mr Applicant, that a nurse or psychologist visited you to ask you questions about – that might result in the high watch?

THE INTERPRETER: Maybe more than five/six months. Maybe seven months ago.

…

MR JOHNSON: And do you consider that there has been a need for a nurse or psychologist to come and visit you in that period of the last few months?

THE INTERPRETER: Yes ..... especially, but I haven’t put a request in or I haven’t asked them to come.

91    In cross-examination, the applicant agreed that he ceased taking his mental health medication in August 2020 and attended an appointment with a psychiatrist where he confirmed this decision.

92    The applicant attended an appointment with an IHMS psychiatrist on 21 December 2020 where he

mentioned he contemplated suicide or self-harming to escape his stress the previous week however he had no specific plan or access to any means.

93    The applicant did not attend follow-up psychiatric appointments in early 2021 until 12 February 2021, where an IHMS counsellor documented that the relevant psychiatrist stated that the applicant’s mood was

within acceptable range and [the applicant] did not wish to engage with mental health support or continue with psychotropic medication…It should be mentioned however that [the applicant’s] threats of suicide and self-harm were in the “context of severe detention fatigue or possibly due to secondary gain” therefore [the applicant’s] mental health concerns are likely to remain ongoing while his immigration status remains uncertain and he resides in held detention.

Diagnosis and treatment for a lipoma

94    In November 2017, the applicant was diagnosed in Papua New Guinea with a “mobile occipital swelling that was thought to be a lipoma”. The applicant was offered lesion removal at the local general hospital in Papua New Guinea but refused.

95    Some months after the applicant had been brought to Australia, and during an IHMS consultation with a general practitioner on 20 November 2019, the applicant requested excision of the lipoma. The evidence discloses no medical assessment or treatment of the applicant’s lipoma between the period 25 July 2019 and 20 November 2019.

96    On 9 December 2019 the general practitioner referred the applicant for an ultrasound scan and on 24 January 2020 the applicant met with a surgeon who confirmed the diagnosis of lipoma and placed the applicant on a waitlist for non-urgent Category 3 surgery. The IHMS advised that the applicant’s surgery was postponed on 7 April 2020 and 13 May 2020 as a result of the COVID-19 pandemic. The Superintendent of Detention Health Mr David John Henderson, deposed that on 16 November 2020, he had been informed by IHMS staff that the applicant had consented to surgical removal of his lipoma.

97    On 30 January 2021 Ms Tracy Byron, Acting Superintendent of Detention Health Operations, deposed that she had been copied into an email from the IHMS as to the current status of the applicant’s lipoma surgery, being that there was no surgery date for excision of the lipoma at that time. On 2 February 2021, the Northern Hospital advised Ms Byron that the applicant’s surgery was scheduled for 17 February 2021.

98    On 24 February 2021 the applicant underwent surgery for the removal of his lipoma and on 3 March 2021 the applicant’s staples from the operation were removed. On 11 March 2021 the applicant had a follow-up tele-medical appointment with the relevant surgeon, however, Ms Lacorcia deposes:

On 11 March 2021 the hospital called IHMS and advised [the applicant] to prepare for the telehealth appointment and did not call back.

IHMS are currently sourcing the histopathology results (that were intended to be discussed at this appointment) in order to ascertain if a new appointment is necessary.

Until IHMS is aware of these results this treatment remains ongoing.

99    Senior counsel for the respondents informed the Court during oral submissions that a new tele-medical appointment had been made for the applicant with the relevant surgeon for 22 March 2021.

The applicant’s written request to be taken back to Papua New Guinea

100    On 24 April 2020, the applicant made an oral request to a Status Resolution Officer that he wished to be returned to Papua New Guinea. On 21 May 2020, a Status Resolution Officer contacted the applicant to clarify whether his request was to return to Nauru or Papua New Guinea and the applicant responded he meant Papua New Guinea. However, the Status Resolution Officer reported that the applicant refused to put his request in writing:

When I informed him to email me or put his request in a DRF in order for me to pass on to the relevant section to action his request to return to PNG he became defensive and some of the comments he made as per below:

“So you are asking me to put in a request to return to PNG”

“Why should I return to PNG, was I born there, am I a citizen of PNG”

…

“I don’t want to go back, I wasn’t born there, but I am also sick of detention”

…

“I wasn’t interested in coming to Australia, they first told me for only 3 months medical treatment, so I am not putting anything in writing but they can send me back the way they bring me here”

I stated that I will pass on the below information and stated to clarify or comment if he finds anything incorrect:

“So based on this conversation I will inform the relevant area that you are not requesting to return to PNG anymore, and that “they” can send you back the way “they” bought you here but at the same you don’t want to be in detention”

To which [the applicant] responded he has nothing to add.

101    On 7 December 2020 the applicant requested in writing to be removed from Australia to Papua New Guinea:

Please send me to Papua New Guinea

Thanks [applicant]

102    An email in evidence dated 16 December 2020 states that “MITA Status Resolution” will “initiate a referral for removal”. The date of that email is the same date that the Federal Circuit Court pronounced the orders which are now subject to appeal. While there is no direct evidence, it can be inferred from the contents of Ms Lacorcia’s file notes below, that a combination of the applicant’s indecision about whether he wished to return to Papua New Guinea if that was the only way to secure his liberty, combined with the outcome of the Federal Circuit Court proceedings, led Ms Lacorcia to contact the applicant in late January 2021. In her 2 February 2021 affidavit, she deposes to two conversations with the applicant. First:

I called [the applicant] today 25 January 2021 via Farsi interpreter…

I introduced myself to [the applicant] and asked if he wanted to discuss returning to PNG. [The applicant] stated he did not know why I was calling him to discuss this. [The applicant] stated he has court next week on 4 February 2021 and had been in contact with his lawyer.

I asked [the applicant] if he was aware of any decision made recently regarding the Minister. [The applicant] stated he was waiting for the minister. I asked if he had met with Status Resolution officer on Friday 22 January 2021 about any decisions. [The applicant] stated he was met by three officers a male and two female officers and claims was in total shock when he met the Officers. He claimed he did not understand what was being said and signed the paperwork that was handed to him.

I stated my colleagues on Friday did not have any paperwork to be signed and I was not sure what [the applicant] was referring to. Therefore I asked [the applicant] were the officers in uniform and he stated yes.

I advised I was not aware he was also being met by ABF officers on Friday.

I asked him what paperwork did he sign and [the applicant] stated it was to return to PNG. [The applicant] claimed he had spoken to the manager of ABF [redacted] and claims she told him he could withdraw the request he had signed to return to PNG.

[The applicant] stated when he was transferred to MITA on arrival he put in a request to see an Officer and he stated “it was my luck they did talk to me and that’s when I signed to go to PNG”

I explained he could withdraw this request and if he could confirm that he did not want to return to PNG. I asked if he could confirm if this all occurred last Friday 22 January 2021.

[The applicant] stated no it was on a Friday but it was a while ago. Again I asked him if my colleague had met with him on Friday 22 January 2021. [The applicant] stated yes he was met by a man and claims he was told [the applicant] “you are not lucky like my colleagues as the “Prime Minister” has not made any decisions”. I explained to [the applicant] my colleague would have advised the Minister has intervened to release detainees however In your case at this time the minister did not and you will remain in detention. [The applicant] claimed he was not advised of any outcomes regarding the Minister.

I asked [the applicant] if he could confirm he did not want to return to PNG. [The applicant] stated “I don’t want to return to PNG I wasn’t born there so why should I return there.

Again I confirmed if [the applicant] wanted to return to PNG and he said no.

I advised once he attends court or his legal representative attends court, a Home affairs Officer can contact him. [The applicant] stated ok.

Call ended.

After a few minutes I called [the applicant] again via Farsi interpreter … and explained now that he had stated/confirmed he did not want to return to PNG The Department would refer him to the Minister for a decision.

[The applicant] remained calm during the phone call.

103    Next, in her second affidavit, Ms Lacorcia deposed that she subsequently confirmed the applicant’s position and recorded in his case review file:

25/1/2021 - Confirmed he does not wish to be returned to PNG regional processing country (nor Iran). He wishes to be considered for release into community

104    In an affidavit affirmed on 10 December 2020, the applicant gave a different version of events:

I told my case manager 6 months ago, words to the effect of: “I want to go back to PNG”.

I was told to put in a request in writing, however, I didn’t think it would be efficient as some of the other guys who put in requests to go back to PNG were denied that request.

I finally submitted a written request to return to go to PNG on the 7th December 2020, because I am desperate for my freedom.

No one has contacted me or spoken to me about this written request for me to go back to PNG.

105    He was not cross examined about this. The differences in the versions of events are not material to the resolution of the original jurisdiction application, and no findings need be made. The most that need be found is that since April 2020 the applicant has seen return to Papua New Guinea as a way of ending his immigration detention in Australia.

Evidence about the s 195A power in relation to the applicant

106    Ms Chloe Ann Hillary, a lawyer employed by the Australian Government Solicitor, deposed that as at 9 August 2019, the applicant was referred for consideration against the s 197AB Ministerial Intervention Guidelines and that process was finalised without referral to the Minister under s 195A of the Act.

107    In an affidavit affirmed on 21 May 2020 and read before the Federal Circuit Court, Ms Hillary deposed that the applicant would be assessed against the s 195A Ministerial Intervention Guidelines in “due course”, but that the Minister was not at that time considering the exercise of this power due to the COVID-19 pandemic.

108    On 22 January 2021, a “Case Review” of the applicant confirmed that the applicant was not considered for Ministerial Intervention “as part of the recent bulk RPC M.I exercise in Melbourne”, whatever that is a reference to, which was not clarified by the evidence.

109    Ms Lacorcia deposes in her 2 February 2021 affidavit that on 29 January 2021, four days after the applicant confirmed that he did not wish to be returned to Papua New Guinea, the applicant was referred under s 195A(2) of the Act to the Minister for him to decide whether to grant a visa to the applicant:

On 29 January 2021, records indicate that the applicant was referred for MI consideration.

110    Ms Gill deposes that on 12 March 2021 she was asked by an officer in the “Ministerial Intervention Section” to

clear a final draft submission to the Minister concerning the applicant

111    She then deposes that on the same day, a few hours later, she

approved the submission which asks the Minister to indicate whether he wishes to exercise his power under s 195A of the Act to grant the applicant a Bridging E (subclass 050) visa. I sent the approved submission to the Parliamentary Coordinator. I understand from my experience that the Parliamentary Coordinator will send the submission to the Minister’s office.

112    There was no evidence about who the “Parliamentary Coordinator” was, or what her or his role was.

113    Ms Gill annexed her email to the “Parliamentary Coordinator”, but did not annex the whole of the submission she had approved. Instead, she annexed only the first page. This is how the first page appeared as an annexure to Ms Gill’s affidavit:

114    As we explain below, we do not consider the evidence can sustain a finding that an order for mandamus should not issue because of a process connected to s 195A of the Act.

Is the duty in ss 198AH(1A) and/or 198AD(2) engaged?

115    For the reasons outlined below, in our opinion the duty in s 198AD(2) is engaged in respect of the applicant. The terms of s 198AH(1A)(c) operate as a pre-condition on the duty of an officer to take a person back to a regional processing country under s 198AD. If there is, objectively, no longer a need for a person to remain in Australia for a temporary purpose, then the duty in s 198AD(2) is engaged. That is the case in relation to the applicant. There is no longer a need for the applicant to remain in Australia for the temporary purpose for which he was brought to Australia.

116    Therefore, the responsible officer has a statutory duty to take the applicant to a regional processing country “as soon as reasonably practicable”. In terms, s 197C does not apply to the duty under s 198AD(2). Aside from references to the power conferred by s 198AE, and Guidelines made under that provision which are not in evidence, the respondents did not suggest in argument, and adduced no evidence, that there was any executive action likely to occur because of any consideration of Australia’s non-refoulement obligations, which could or would affect a determination of when it was “as soon as reasonably practicable” to return the applicant to a regional processing country. The only executive action raised by the respondents related to s 195A. We explain below why we reject that as a justification for any ongoing non-performance of the duty in s 198AD.

117    As Kenny and Mortimer JJ explain in WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 55 at [113]-[124], the terms of s 198, even read with s 197C, do not preclude timely and genuine consideration by the executive of alternatives to removal. While it is possible similar reasoning might be applied to the duty in s 198AD, there are distinctive factors which would need to be considered. Plainly, also the inapplicability of s 197C on its face must be considered. These matters are likely to need to be considered further before a final decision is made about relief: see [229]-[231] below.

The matters in s 198AH(1A) are jurisdictional facts

118    Whether s 198AH(1A) creates a jurisdictional fact, or instead requires the formation of an opinion by a decision maker, is a question of statutory construction: see Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 at [53], referring to Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135; and Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8; 46 NSWLR 55 at [39] per Spigelman CJ (with whom Mason P and Meagher JA agreed). As part of this task, the Court considers whether it can be said Parliament intended the existence of a fact to be an essential precondition to the engagement of a statutory power: see for example Cabal v Attorney-General of the Commonwealth [2001] FCA 583; 113 FCR 154 at [50]. The nature of the task performed is also relevant – are policy questions or value judgments involved? If so, that may tend against it being a jurisdictional fact: see Australian Heritage Commission v Mount Isa Mines Limited [1995] FCA 947; 60 FCR 456 at 465-466 per Black CJ. The Chief Justice was in dissent in the Full Court, but his Honour’s dissent was in substance upheld in the High Court: see Australian Heritage Commission v Mount Isa Mines Limited [1997] HCA 10; 187 CLR 297. See also Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32; 244 CLR 144 at [57] per French CJ, and Construction, Forestry, Maritime, Mining and Energy Union v Anglo American Australia Limited [2019] FCAFC 109; 271 FCR 22 at [107].

119    Even if some kind of qualitative judgment is involved, that will not necessarily preclude a fact being characterised as an essential precondition which must objectively exist for the power to be engaged: see Timbarra at [89]-[90].

120    In Timbarra at [42], Spigelman CJ explained that where a factual reference appears in a statutory formulation which also refers to a state of mind, such as “opinion”, “belief”, “satisfaction” – the presence of those words would usually tend against construing the provision as a matter for the Court to decide. Without such words, as Spigelman CJ observed, the construction exercise is more difficult.

121    That is the case here. No such words are present. If the existence of the need to which s 198AH(1A) refers depends on the state of mind of a person, that must be implied into the statute. As we explain below, precisely what implication should be made is unclear. This is a situation where, in our opinion, it is important to recall the very limited purpose for which Courts might read words into a statute. Spigelman CJ explained this purpose in R v PLV [2001] NSWCCA 282; 51 NSWLR 736 at [81]-[82]:

It is no part of the function of a judge to supply words believed to have been omitted by the legislature per se. What a court does is to construe the words actually used by the legislature, with an effect as if certain words appeared in the statute. The words so “included” reflect in express, and therefore more readily observable, form, the true construction of the words actually used.

The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say. …

122    For the reasons we explain, the respondents’ submissions invite the Court to go beyond this purpose.

123    The purpose of s 198AH is to prescribe how the removal provisions in s 198AD apply to persons who have been brought to Australia from a regional processing country. Section 198AD is the principal mechanism whereby the Commonwealth’s “offshore processing regime” is implemented. It is the provision which requires (subject to s 198AE) any “unauthorised maritime arrival” to be taken to an offshore processing country, and thus not to be able to remain in Australia. It bifurcates the treatment of those who are, by the Act, classified as “unauthorised maritime arrivals” from the treatment of all other people who arrive in Australia without a visa. This absolute and policy-driven bifurcation is apparent from the terms of s 198AA:

198AA Reason for Subdivision

This Subdivision is enacted because the Parliament considers that:

(a)    people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b)    unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c)    it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d)    the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

124    Section 198AD confers a range of powers, including the use of reasonable and necessary force on “officers” as defined in s 5 of the Act, read with s 198AD(12) which expressly includes members of the Australian Defence Force:

officer means:

(a)    an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or

(b)    a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or

(c)    a person who is a protective service officer for the purposes of the Australian Federal Police Act 1979, other than such a person specified by the Minister in writing for the purposes of this paragraph; or

(d)    a member of the Australian Federal Police or of the police force of a State or an internal Territory; or

(e)    a member of the police force of an external Territory; or

(f)    a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or

(g)    any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given.

125    The text of s 198AD(3) makes it plain that the reason the word “take” is used, is because the process of removing a person may have several stages, including taking them off vessels and onto other transportation:

(3)    For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:

(a)    place the unauthorised maritime arrival on a vehicle or vessel;

(b)    restrain the unauthorised maritime arrival on a vehicle or vessel;

(c)    remove the unauthorised maritime arrival from:

(i)    the place at which the unauthorised maritime arrival is detained; or

(ii)    a vehicle or vessel;

(d)     use such force as is necessary and reasonable.

126    That would appear to be why s 198AD(11) speaks of a person being “dealt with” under s 198AD(3), and provides that such a person is

taken not to be in immigration detention (as defined in subsection 5(1)).

127    Officers are subject to Ministerial direction about which regional processing country a person is taken to: see s 198AD(5).

128    The Minister can determine that s 198AD does not apply to a person. That power is a personal one and is conditioned by the Minister’s opinion that such a determination is in the public interest: see s 198AE. That provision is relevant to demonstrate the otherwise absolute intention behind s 198AD: those who fall within its terms are intended not to be able to remain in Australia.

129    The offshore processing regime contained in Div 8 of Part 2 of the Act does recognise that people may subsequently be brought to Australia in some circumstances. It does so by the terms of s 198B, which applies to those who meet the definition in s 5 of the Act of “transitory persons”. This was also the part of the Act where ss 198C-198J were located, prior to their repeal on 4 December 2019. Those provisions dealt with a specific kind of temporary purpose; namely, the transfer of people for the purpose of medical treatment. Section 198B is not limited to medical treatment.

130    With that context, we turn to s 198AH. This provision contemplates that the now repealed medical treatment provisions continue to be the reason that individuals may be presently in Australia. That is apparent from the terms of s 198AH(1A)(a).

131    By s 198AH(1), emphatic language is used about the circumstances in which the “taking” obligation in s 198AD will apply to transitory persons in Australia – “if and only if” a person is “covered” by subsections (1A) or (1B).

132    The use of the term “covered” suggests an objective determination whether a person falls within, or outside, the terms of either provision. The use of “if and only if” does not suggest Parliament intended to leave any leeway for reasonable minds to differ. Rather, it suggests Parliament intended that the facts in subsection (1A) objectively exist.

133    Next, the language of subsection (1A) is entirely objective. It posits three, cumulative, factual circumstances:

(a)    first, the status of a person as defined by the Act – an “unlawful maritime arrival”;

(b)    second, a person being detained; and

(c)    third, that the person “no longer needs” to be in Australia for the temporary purpose.

134    In our opinion, it is clear that subsections (1A)(a) and (b) are directed to objective facts which either exist or do not: that is, first, a person does or does not have the requisite status; and second a person is or is not detained. Subsection (1A)(b) is not expressed in the same language as s 189, a provision directed to an officer’s state of mind. Rather, it is directed to the fact of detention.

135    This conclusion is reinforced by the language used at the start of subsection (1A) – a person “is covered”, which is definitional in nature.

136    It is not impossible that subsection (1A)(c) could have been framed to operate differently from (a) and (b), and could have been expressed to depend upon the opinion of an identified person. If that were to be the case, one would have expected Parliament to say so expressly. As it is structured, it is but the third of a three-pronged definition providing for when a person is “covered” by s 198AH.

137    While it is true that there is some aspect of fact and degree in a determination as to whether a person “needs” to be in Australia, it is not a complicated factual question. The “need” is likely to be ascertained through information from third parties, whoever is the repository of the fact finding, an officer, the Minister or a delegate, or the Court. Rather than suggesting a value judgment, the use of the word “needs” suggests some kind of objectively justifiable reason. The words in brackets in subsection (1A)(c) – “(whether or not the purpose has been achieved)” support the view we have just expressed that the word “needs” is directed at the establishment of some kind of justification. It is consistent with the purpose and context of these provisions, as exceptions to the otherwise bifurcated and absolute policy that “unlawful maritime arrivals” are to be taken to, and to remain in, a regional processing country, that “needs” is a word used as meaning there must be an objective justification for a person to continue to remain. That is because the presence of the person in Australia is otherwise inconsistent with the policy evinced by these provisions, and has been permitted for a specific purpose – a “temporary” purpose. The word “temporary” obviously suggests a purpose which will not continue.

138    The provision is directed at the justification for a person remaining in Australia, contrary to the general policy of these provisions.

139    The absolute nature of the policy is apparent from the terms of s 198AH(2), which makes it clear that even any recognised refugee status is not intended to preclude a person from being subject to removal back to a regional processing country.

140    Further, as the authorities note, another method of understanding Parliament’s intention is to examine other parts of the statute here. As Gageler J observed in Plaintiff M96A at [39], this is a statute where Parliament makes it clear when it is conferring a power which is conditioned upon the formation of a particular state of mind. Section 65 is an obvious example. So too, s 189 – an officer must hold a “reasonable suspicion”. So too provisions such as the one discussed above, s 198AE, where the Minister “thinks that it is in the public interest”. The Minister can determine an individual should not be taken to a regional processing country. Also in previous s 198E, introduced after s 198AH, the requirement for the Minister to approve a transfer does not exist if the Minister “reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment”. Subsections 198E(4)(b) and (c) also use express language directed to the Minister’s state of mind. In (b) – “reasonably suspects”. In (c) – “knows”. The text of s 198AH(1A) is markedly different. In a statutory context such as this, the Court can be confident that if Parliament had intended to make the question of “need” or justification dependant on a person’s state of mind, it would have said so.

141    As for Plaintiff M96A, as the respondents submitted, the majority held (at [32]) that it was not necessary to construe s 198AH(1)(c) and to decide if the need to remain for a temporary purpose was, or was not, a jurisdictional fact.

142    What the majority had said, however, at [31], by reference to Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 253 CLR 219, was that it was necessary for there to be objectively determinable criteria for detention, so that courts could determine the legality of any detention. While this principle may not control one construction of s 198AH(1)(c) over another, it is also not irrelevant. The respondents’ contention inserts words into the provisions relating to the state of mind of an unspecified person. While in argument, when pressed, senior counsel for the respondents submitted that person could be an “officer”, that is in our respectful opinion no more than speculation and is not derived from the text, especially given it is not an officer who had the legal responsibility for deciding if a person should be brought to Australia for the temporary purpose in the first place. That legal responsibility rested with the Minister, and for a limited time, with the Panel. The respondents’ construction in our opinion tends towards making the criterion for a person’s continued detention more vague than the competing construction – because the identity of the person who has to form the relevant state of mind is opaque on the text of the provision.

143    In contrast, Gageler J in Plaintiff M96A said at [38]-[42]:

The answer to the question which arises under s 198(1A), and under s 198AH(1A) where it applies, of whether the transitory person any longer needs to be in Australia for the temporary purpose for which the person was brought to Australia, does not depend, expressly or by implication, on the opinion, satisfaction or belief of any officer. I reject the argument of the defendants that answering of the question is committed by the terms of ss 198(1A) and 198AH(1A) to the evaluative judgment of an officer, subject perhaps to the “general principle of law ... that a discretion allowed by statute to the holder of an office is intended to be exercised according to the rules of reason and justice, not according to private opinion; according to law, and not humour, and within those limits within which an honest man, competent to discharge the duties of his office, ought to confine himself”. The question of whether the duty to remove is triggered is in that respect separate from, and anterior to, the question of what is required of an officer to remove the person from Australia as soon as reasonably practicable in the performance of the duty once triggered.

Established drafting techniques are available to be used to make the holding of a particular state of mind by the repository a precondition to the performance of a duty or to the exercise of a power. Techniques of that kind are used throughout the Act. They are not universally observed. But their availability cannot be assumed to have been overlooked by the parliamentary drafters, especially those who framed s 198AH(1A) for insertion into the Act in the aftermath of Plaintiff M70/2011 v Minister for Immigration and Citizenship. Those available techniques have been eschewed in s 198(1A) and in s 198AH(1A) in favour of casting the precondition to the performance of the duty to remove in manifestly objective terms.

The objectivity apparent in the statutory expression in s 198(1A) of the criterion for the triggering of the duty imposed by s 198(1A), and in s 198AH(1A) for the triggering of the duty imposed by s 198AD(2), is reinforced by the manner in which ss 198 and 198AD are expressed to interrelate. Section 198AH(1) relevantly states that s 198AD “applies” to a transitory person if the person is “covered” by s 198AH(1A). Section 198(11) states that s 198, including s 198(1A), “does not apply” to a person to whom s 198AD “applies”. A person is either covered by s 198AH(1A) or is not. Section 198AD either applies to a person or does not. Section 198(1A) applies to a person if s 198AD(2) does not.

Neither of the duties imposed by s 198(1A) or by s 198AD(2) is imposed on a particular officer. Whether one or other of those duties applies to a transitory person who has been brought to Australia under s 198B must be capable of discernment independently of the state of mind of a particular officer.

Whether a transitory person who has been brought to Australia under s 198B for a temporary purpose any longer needs to be in Australia for that temporary purpose, so as to trigger the obligation imposed on an officer by s 198(1A) or by s 198AD(2) to remove the person from Australia, is thus an objective question. That is to say, the question is one which in the event of dispute falls to be answered by a court.

144    We respectfully agree. That approach is consistent with the authorities to which we have referred, and is to be preferred in the text and context of the provision itself. Although the respondents briefly contended that the provision should be read as if referring to a specific individual because the Court did not have the expertise to engage in the necessary fact finding, as that submission developed it became clear the respondents’ contention was that the person would be an “officer”. There is no basis offered to support the proposition that any or all “officers” as defined in the Act possessed any particular skills, knowledge or experience that would place them in a better position than the Court to make a finding whether a person “needs” to remain for a temporary purpose.

145    Section 198AH(1A) creates three cumulative jurisdictional facts, as essential preconditions to the engagement of s 198AD.

Are the preconditions in the terms of s 198AH satisfied?

146    There was no debate that the first two preconditions in s 198AH(1A) were met. As to s 198AH(1A)(c), there was a difference between the parties in how specifically the temporary purpose must be expressed, for the purposes of that paragraph. The respondents’ position is that the temporary purpose need merely reflect the statutory language of previous s 198C: that is, being brought to Australia for “the temporary purpose of medical or psychiatric assessment or treatment” (s 198C(2)). The applicant contended that, when deciding if s 198AH is engaged, the purpose should be more specifically identified. We agree.

147    The terms of s 198B(1) impose no express restrictions on what might, and what might not be, a “temporary purpose”. Appropriately so, because Parliament cannot foresee the myriad of circumstances which might require a person to be brought to Australia. Those circumstances may or may not be for the person’s benefit, or directly related to the person’s circumstances. For example, a person may be brought to Australia to testify in a people smuggling prosecution. Or, a person may be brought to Australia for the purposes of being interviewed for a safe third country placement, or to undergo certain tests before being approved for such a placement. A person may be brought to attend a funeral, or to see a sick relative, or for the birth of a child. Dealing as it does with circumstances in the future, there is no basis to construe it narrowly.

148    However, with the introduction of the Home Affairs Amendment Act in 2019, the Parliament sought to address a specific situation which had arisen, especially on Nauru.

149    It was this Act which introduced s 198B(4), which provided:

Without limiting the generality of subsection (1), a temporary purpose may include:

(a)     medical or psychiatric assessment or treatment; or

(b)     accompanying a person who has or will be brought to Australia in accordance with subsection (1) or section 198C, if that person is a member of the same family unit or if recommended by a medical practitioner.

150    The chapeau to this sub-section makes the point which in our opinion was already clear; namely that what might constitute a “temporary purpose” is not intended to be construed restrictively.

151    Therefore, so long as the purpose for which a person is brought to Australia is first, a temporary one, and second, otherwise capable of falling within what on any view is a wide statutory term, there will be power to bring the person to Australia. To make that finding says little about the question of when s 198AH(1A) is engaged. It is to answer this question that more specificity is required.

152    So much is clear as a matter of text in s 198AH(1A)(c). First, it looks to “the temporary purpose” (our emphasis), directing the reader to “the” temporary purpose for which a person was brought to Australia. While it is true that both the respondents’ and the applicant’s constructions could accommodate the use of the definite article, the use by the Parliament of the verb “needs” cannot. As we have explained, by the use of that word Parliament requires there to be a justification for a person remaining in Australia, in circumstances which are otherwise contrary to the intention of the legislative scheme concerning offshore processing. It is clear the justification is intended to match the reason the person was brought to Australia in the first place.

153    The concept of “needs” however suggests an assessment of the individual’s circumstances, and does not preclude consideration of the person’s own wishes or views. The latter factor may be especially important in some circumstances of medical treatment, where an individual’s assessment of her or his own recovery, and capabilities, may affect her or his ability to cope in a reasonable and practicable way with life in an offshore processing country when returned.

154    Similarly to the indications arising from the use of the verb “needs” in s 198AH(1A), so too the words in brackets in para (c) (“whether or not the purpose has been achieved”), suggest some factual specificity. For example, if a person is brought to Australia to testify in a people smuggling operation prosecution and once the person is here, the charges are withdrawn, the purpose for bringing the person to Australia would not have been achieved, but there is no longer any justification for the person remaining in Australia. However, in order to apply this provision to an individual, the specific factual details of the trial for which a person was brought to Australia need to be identified, as do the specific factual details of what has happened which means the person no longer “needs” to remain in Australia.

155    In our opinion, where the purpose relates to medical or psychiatric treatment, the approach is no different. The factual circumstances of why a person was brought to Australia for medical or psychiatric treatment must be ascertained, because it is those circumstances that will inform the assessment of the “needs” of a person to remain, and will also inform the question about whether the bracketed exception (“whether or not the purpose has been achieved”) has a role to play in that assessment or not. In short, the provision directs attention to factually specific circumstances for each individual.

156    This approach is confirmed by the terms of the now-repealed provisions under which the applicant was in fact brought to Australia. Two of the three criteria in the former s 198E(2) direct attention to specific kinds of conditions. In s 198E(2)(b)(ii), the individual’s treating doctor must be of the opinion that the person is not receiving “appropriate” medical or psychiatric assessment or treatment in the regional processing country. In sub-paragraph (iii) of the same provision, the individual’s treating doctor must be of the opinion that it is necessary to remove a person from a regional processing country for “appropriate” medical or psychiatric assessment or treatment. The question of appropriateness cannot be determined by a treating doctor in a vacuum, nor in any hypothetical or general context. What is or is not “appropriate” treatment will depend very much on the particular conditions suffered by the individuals, and the particular treatments needed. Similarly, the Minister’s duty in s 198E(4) to transfer a person is not applicable if the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for “appropriate medical or psychiatric assessment or treatment”. Just as with the treating doctor in the earlier provisions, the Minister could not form the necessary opinions about the appropriateness of medical or psychiatric assessment or treatment without some specificity regarding an individual’s underlying condition, and available and necessary treatments. The same is true of the assessment of the Panel to be carried out under the former s 198F, which as sub-section (2)(a) makes clear, involves a “clinical assessment”. This assessment must be specific to the medical or psychiatric conditions experienced by an individual.

157    This approach is also consistent with the terms of s 198AE, whereby the Minister has a personal power to determine (if she or he think it in the public interest to do so) that s 198AD does not apply to a person and that person should not be removed to a regional processing centre. Very plainly, any such determination is fact specific, and concerned with the individual circumstances of a person (although the aspect of the public interest in issue may of course be wider).

158    For these reasons, in order to determine whether the precondition to the duty in s 198AD is engaged, the correct assessment requires findings about what were the specific conditions for which the applicant was brought to Australia, so as to access “appropriate medical or psychiatric assessment or treatment”; and whether by reason of the “appropriate medical or psychiatric assessment or treatment” for those specific conditions, the applicant still “needs” to be in Australia.

159    That said, the scheme nevertheless also accommodates medical or psychiatric issues which arise after a person is brought to Australia. For the reasons we have explained they do not enter into the assessment as to whether the preconditions in s 198AH(1A) are engaged. However, they are likely to affect when it is “reasonably practicable”, for the purposes of s 198AD, to remove a person back to a regional processing country. In our opinion, the applicant’s lipoma, and the medical treatment he has received here for it, falls into this category. As we explain below, unless the factual situation has altered for the worse after the hearing on 19 March 2021 in this matter, at the time of the Court’s orders it is likely to be reasonably practicable to remove the applicant to Papua New Guinea as the medical treatment for his lipoma will be complete.

The temporary purpose for which the applicant was brought to Australia

160    Returning however to the fact finding about the specific conditions for which the applicant was brought to Australia, and in addition to the findings at [58]-[99] above, we make the following findings of fact.

161    Although the applicant was diagnosed with lipoma in November 2017 in Papua New Guinea, and was offered lesion removal at the local general hospital, this did not occur. Other IHMS records indicate this was because the applicant refused the treatment.

162    The applicant requested a transfer to Australia for treatment of his mental health issues in June 2019. He did so on the basis of medical reports from two specialists. First, Dr Sharat Lal (in reports dated 22 May 2019 and 16 June 2019), who expressed the opinion that the applicant needed to be brought to Australia for urgent psychiatric treatment. Second, two reports from Dr Arun Illancheran (Consultant Emergency Physician) dated 22 May 2019 and 11 June 2019. While there is reference in some of the reports to the need to investigate the cause of the lipoma and consider treatment, the focus of each report is on the applicant’s mental health. It is that which is given as the reason the applicant needs to be removed from Papua New Guinea. For example, in his second report Dr Illancheran expresses the opinion that the applicant “needs an urgent mental health assessment with a multi-disciplinary team” in conjunction with a psychiatrist (pp 19-20) and “investigation of and management of depression with psychotic symptoms requires inpatient investigation and management in a facility that is capable of admitting psychiatric or medical patients for 24 hours a day” (p 21). As to the urgency of the transfer, Dr Illancheran’s opinion in his second report was that this depends on the applicant’s current clinical status (p 21).

163    The Minister refused to approve a transfer for the applicant under (then) s 198E(4)(a). There is no evidence before the Court about the Minister’s reasons for that refusal. As the legislative scheme then contemplated, this refusal meant the matter was referred to the Panel. Its report revealed a dire situation for the applicant. It stated the Panel had determined that it was not appropriate to conduct an interview because of risk of harm to the applicant. It found that “[f]ollowing [Panel] document review”, the applicant had been diagnosed with the following psychological / psychiatric conditions:

- Major depression with psychotic features

- A possible organic medical condition leading to psychotic features

- Anxiety symptoms

- Probable Post-traumatic Stress Disorder

164    The report also referred to the “occipital swelling of unknown causes” as a “physiological/organic disease” with which the applicant had been diagnosed. This is a reference to what was subsequently agreed to be a lipoma.

165    The unanimous opinion of the Panel was:

The Panel shared concern about the nature and severity of [the applicant’s] mental health issues. The Panel agreed that [the applicant’s] condition is deteriorating and the treatment he is receiving at [Pacific International Hospital] in Port Moresby is insufficient. The panel noted that one of treating doctors have recommended that [the applicant] undergo Electroconvulsive Therapy (ECT). The panel noted that there was a discrepancy between the recommendation of ECT on one hand and reduction in dosage of antidepressants on the other hand.

The Panel agreed that the medical notes were difficult to follow at times, and ambiguous, given the self-harm attempts and unresponsiveness of [the applicant] to the treatment he is receiving at [Pacific International Hospital].

The Panel agreed that, while the severity of [the applicant’s] mental issues is unclear, he is likely to be quite unwell and requires inpatient treatment for his health issues. The Panel agreed that the treatment [the applicant] is receiving at [Pacific International Hospital] is inadequate as he has refused to attend [Pacific International Hospital].

All six Panel members present at the meeting agreed that [the applicant] be transferred to Australia to receive treatment for his physical and psychological symptoms.

The Panel acknowledged the correspondence from Minister Dutton in relation to [the applicant] provided to them on 11 July 2019. The Panel agreed that the Minister’s input was not a factor in the Panel reaching their recommendation. The Panel noted that it was not appropriate for them to conduct a security/identity review, and therefore this had no bearing on their recommendation.

The Panel noted that there was significant delay between the treating doctors preparing their reports (following their initial review) and submitting for Minister review. The Panel consider this to be particularly concerning considering the doctors reports stated an urgent transfer to Australia was required. The Panel was especially concerned with the delay noting this was a second review for [the applicant] and there has been no improvement in his condition since last [Panel] review.

166    The Panel then unanimously recommended that the applicant’s transfer to Australia for medical treatment be approved. The report stated that recommendation was based on the following reasons:

1. [The applicant’s] mental health has been deteriorating.

2. The treatment [the applicant] is receiving at [Pacific International Hospital] is inadequate and his mental health is not being adequately dealt with in his present circumstances.

3. His medication dosage has been changed numerous times and there are potentially several different differential diagnoses present, which need to be urgently clarified.

4. [The applicant’s] condition has not improved since last IHAP review. The Panel notes that it’s previous recommendation was to treat the applicant at [Pacific International Hospital]. However, there has been no improvement in [the applicant’s] conditions.

167    There was no recommendation for transfer because of the occipital swelling. However, the presence of that diagnosis in the report supports the inference that the Panel were conscious that the applicant had a physiological condition which might need further investigation.

168    After the applicant arrived in Australia on 25 July 2019, there was an “induction health assessment” the following day. The applicant’s medical records exhibited to Mr Taylor’s affidavit (and not said by the respondents to be incomplete) demonstrate that although the applicant underwent a number of immunisations and consultations, including with a general practitioner and a nurse, the applicant was not admitted as an inpatient to any psychiatric hospital, contrary to the Panel’s recommendations.

169    Instead, he was detained at one of the Commonwealth’s immigration detention centres, the MITA, in Melbourne. Putting matters such as immunisations to one side, the IHMS records show entries for “well-being” sessions by “MITA Groups counsellor”; “keep safe” entries (also noted as a “mental health consultation” by a MITA mental health nurse but otherwise unexplained); and events completely unconnected with the material in the Panel report, such as a session on sexually transmitted infections. This continues until 4 October 2019, where there is a record of the applicant having a booking with a “MITA psychiatrist”. The appointment on this date, and two other dates in early October 2019 are noted as “rescheduled”. There is an entry indicating the applicant attended a “mental health screening” with a psychiatrist on 14 October 2019. As we find below, this is the first psychiatrist appointment but is also later identified as the point at which the applicant’s psychiatric treatment ceased.

170    Even that scheduled appointment was almost three months after he arrived. Nothing in the applicant’s health records to this date suggests those responsible for his detention followed the recommendations of the Panel at all. His IHMS records show him mostly being administered paracetamol during this time, nothing else.

171    On 20 November 2019, the IHMS records have an entry for a general practitioner consultation at MITA, with the annotation

Please r/v client for constant headache and chronic lump on back of his head.

172    This is the first reference in the medical records to the lipoma after the applicant’s arrival in Australia. This entry is consistent with other evidence, in the affidavit of Ms Hillary dated 21 May 2021, where the following appears in an IHMS report dated 20 May 2020:

A discharge summary from the Pacific International Hospital noted [the applicant] had declined excision of the lipoma in Papua New Guinea. During an IHMS GP consultation 20 Nov 2019, [the applicant] requested excision of the lipoma. The GP referred [the applicant] for an ultrasound scan which returned results confirming a lipoma and on 09 Dec 2019 the IHMS GP referred him to the Northern Hospital for surgeon assessment. [The applicant] attended a specialist consultation at the Northern Hospital plastic and hand surgery clinic on 24 Jan 2020. The specialist confirmed a diagnosis of lipoma and [the applicant] was placed on a waitlist for non-urgent (Category 3) surgical excision. On 07 Apr 2020, IHMS was advised that due to the Covid-19 pandemic, [the applicant’s] surgery had been postponed.

173    Returning to the records attached to Mr Taylor’s affidavit, there are further entries for reviews and “keep safe”, until the import of this phrase becomes apparent in an entry on 3 March 2020:

High Priority: place on Keep Safe due to suicidal intention. Email sent to you.

174    The reasonable inference to draw is that “keep safe” is some kind of self-harm/suicide watch. The applicant’s oral evidence indicated this had been also been a feature of his detention in Australia. His evidence was that this self-harm/suicide watch occurred without any psychiatric treatment, and the IHMS records appear to confirm this; at least, not treatment of the kind recommended by the Panel. This appears to be confirmed by the IHMS summary report dated 20 May 2020, to which we have referred above. The 20 May 2020 report confirms the applicant was admitted to a psychiatric hospital for one night on 5 May 2020, after he was reported as expressing suicidal ideation, and was reported to be unresponsive when asked if he could guarantee his own safety. He was discharged the next day and received no ongoing in-patient treatment as far as the evidence discloses. Consistently with the applicant’s oral evidence to this Court, the discharge summary states:

31 y.o. from detention centre, worsening suicidal ideation and thoughts on b/g of previous suicidal attempts (hanging and cutting). States worsening mental state 2/52 ago, was put in isolation post a protest episode, slates that being in isolation is like being tortured,. Stated that they have also stepped up security outside his door in that they are checking up on him every 30min by knocking on his door. States that he felt that he had to do something today as he cannot tolerated be in detention anymore. States that he arrived here in 2013 and was on Manus Island off shored processing and that he was tortured there and feared for his life. States that he injured his back during an episode where he tried to escape a guard who had a knife and chased after him and killed one of the other asylum seekers on Manus Island. Not sleeping well the last 2/52, felt that though he was brought to Australia due to his mental health issues that he has not received appropriate care, though mostly he reports that he just want to have freedom. Reports ongoing suicidal thoughts being in detention

175    It is apparent that by this stage, that is, May 2020, the applicant was not receiving any “treatment” for his mental health issues, certainly not of the kind recommended by the Panel, and indeed to the extent those issues persisted, it was his ongoing detention upon which he focussed as the cause.

176    Exhibited to Ms Lacorcia’s affidavit of 12 March 2021 are further responses from IHMS, answering questions posed to IHMS about the applicant’s health, and the status of his lipoma surgery. Initially IHMS advised the department that

[the applicant] underwent surgery to remove his lipoma on 24 February 2021. A follow-up appointment with the surgeon is scheduled for 11 March 2021. Treatment for this health issue will be considered complete or ongoing dependant on the outcome of this appointment.

177    And, as to his mental health:

On 12 February 2021 the IHMS counsellor documented that the IHMS psychiatrist stated that [the applicant’s] mood appeared within acceptable range and he did not wish to engage with mental health support or continue with psychotropic medication. No acute psychological concerns were noted to require treatment. It should be mentioned however that [the applicant’s] threats of suicide and self-harm were in the “context of severe detention fatigue or possibly due to secondary gain” therefore [the applicant’s] mental health concerns are likely to remain ongoing while his immigration status remains uncertain and he resides in held detention.

178    IHMS was then pressed to answer three questions more specifically. Those questions were:

Advice as to if the treatment for which they were transferred to Australia is considered complete or ongoing? If considered complete, what date would it have been considered completed?

Any outstanding treatment related to reason for transfer to Australia

179    IHMS provided the following response:

Advice as to if the treatment for which they were transferred to Australia is considered complete or ongoing?

[The applicant’s] treatment for which he was transferred to Australia is considered ongoing. A follow-up appointment with his surgeon for review of his lipoma surgery is scheduled for 11 March 2021. A ‘date of completion’ of treatment is somewhat arbitrary but it would be reasonable to consider the treatment complete when the review appointment scheduled for 11 March 2021 has been attended.

With respect to the mental health reasons for which [the applicant] was transferred, a ‘date of completion’ is somewhat arbitrary. However, [the applicant] attended an appointment with the psychiatrist on 14 October 2019 when the conclusion was that there was ‘No Evidence of Mental Illness’. It is therefore reasonable to conclude that 14 October 2019 was the date of completion of treatment. Since that time, [the applicant] has developed further mental health concerns due to prolonged and ongoing immigration uncertainty and residing in held detention in Australia - as a result of this, he will require ongoing mental health support until his immigration uncertainty is resolved and he is released from detention.

If considered complete, what date would it have been considered completed?

N/A

Any outstanding treatment related to reason for transfer to Australia

A follow-up appointment with the surgeon is scheduled for 11 March 2021. Treatment for [the applicant’s] lipoma will be considered complete or ongoing dependant on the outcome of this appointment.

(Emphasis added.)

180    In our opinion, the temporary purpose for which the applicant was brought to Australia is to be found primarily in the report of the Panel, which the Minister ultimately accepted as the basis for his transfer to Australia. The temporary purpose revealed by the Panel’s report was for the applicant to receive “inpatient treatment for his health issues”; “treatment of his physical and psychological symptoms”, and urgent clarification of his medication dosage, as well as potentially several different differential diagnoses.

181    While it remains unclear on the evidence before the Court whether the respondents sought to fulfil any or all of these purposes as a matter of urgency (which is what the Panel recommended) when the applicant arrived in Australia, what the evidence does make clear is that from around 14 October 2019, the opinion of those within IHMS who were responsible for the provision of medical care to the applicant, was that the applicant was presenting with “no evidence of mental illness” by this date. We infer that opinion refers back to the diagnoses which led the Panel to recommend his transfer to Australia. Whether the opinion expressed by the IHMS was correct, or well-founded, was not put in issue in these proceedings. The expression of opinion in these records was sought by those responsible for the applicant’s detention, and on the evidence, was not questioned. Thereafter, IHMS attribute the applicant’s psychiatric health issues to his reaction to his ongoing immigration detention in Australia. There is no reason in these circumstances not to accept the opinion expressed by IHMS. We do so particularly in light of the other parts of IHMS’ medical records for the applicant which are in evidence and to which we have referred, as well as the applicant’s own evidence. All this evidence establishes the applicant received almost none of the treatment contemplated for him by the Panel. Further, the evidence is overwhelming that any ongoing mental health issues suffered by the applicant, from around October 2019, are attributable to his reaction to his ongoing detention in Australia.

182    While the preferable finding on the evidence in our opinion is that the applicant was not transferred to Australia for any temporary purpose related to his lipoma, even if the contrary were to be accepted, then the evidence demonstrates that in the opinion of IHMS, the applicant did not need to be in Australia for that purpose after his follow up post-surgery appointment. That appointment did not occur on 11 March 2021 as scheduled, but senior counsel for the respondents informed the Court it was to occur on 22 March 2021.

183    In the absence of being informed to the contrary by the respondents, we consider the Court can infer the appointment has occurred, and there are no ongoing medical issues for the applicant about his recovery from the removal of the lipoma. The evidence as it stands establishes the surgery went well. If, after the hearing in these proceedings, there was some adverse or deleterious change in the applicant’s recovery from his lipoma, the Court can expect the respondents, as model litigants, to have informed the Court. Therefore, even if medical treatment for the lipoma was part of the temporary purpose for which the applicant was brought to Australia, we find he no longer needs to be in Australia for that purpose.

184    Therefore, we find the three preconditions in s 198AH(1A) to be met.

When was it, or when will it be, “reasonably practicable” to remove the applicant?

185    The numerous previous cases dealing with the onus of proof in a proceeding where there is an allegation of unlawful detention (either in tort or by application for writ in the nature of habeas corpus), establish the detaining authority bears the onus of proving the detention is lawful. See Dien v Manager of Immigration Detention Centre at Port Hedland [1993] WASC 579; 115 FLR 416 at 418-419 per Malcolm CJ; sub nom Truong v Immigration Detention Centre, Port Hedland (Sup Ct, WA, Malcolm CJ, Seaman and Ipp JJ, 24 June 1993); 31 ALD 729 at 731 per Malcolm CJ and Seaman J; Ruddock v Taylor [2005] HCA 48; 222 CLR 612 at [97], [140]; Hicks v Ruddock [2007] FCA 299; 156 FCR 574 at [53]-[56]; Commonwealth v Fernando [2012] FCAFC 18; 200 FCR 1 at [92]; State of New South Wales v TD [2013] NSWCA 32; 83 NSWLR 566 at [53]-[54]; Tanioria v Commonwealth [2016] FCA 1253 at [28(a)]; Plaintiff M47/2018 v Minister for Home Affairs [2019] HCA 17; 265 CLR 285 at [39]; Burgess v Commonwealth [2020] FCA 670; 276 FCR 548 at [68], by reference to the decision of Jagot J in Guo v Commonwealth of Australia [2017] FCA 1355; 258 FCR 31 at [83]; Lewis v Australian Capital Territory [2020] HCA 26; 94 ALJR 740 at [24] per Gageler J; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 at [56], [60] per Allsop CJ, [90] per Besanko J and [282] per Mortimer J. The approach taken in AJL20 at [91] (and accepted by the Commonwealth in that case) is the same.

186    We put to one side, for reasons we explain below at [193], the Commonwealth’s burden of proof in relation to the continuing lawful purpose for the applicant’s detention, in terms of the principles outlined in AJL20.

187    However, on the first aspect of the applicant’s case, if s 198AH was engaged, the duty in s 198AD(2) arises for performance “as soon as” it is “reasonably practicable” to take the applicant to a regional processing country. It would be unlawful for the Commonwealth to detain the applicant beyond the point where it was reasonably practicable to remove him back to a regional processing country. Again, putting AJL20 to one side, the present state of the authorities suggests the appropriate relief in such a situation would be an order in the nature of mandamus, compelling the Commonwealth, by its officers, to remove the applicant. That is indeed one of the forms of relief he seeks.

188    There was little evidence adduced by the respondents about the reasonable practicability of the applicant’s removal. Ms Lacorcia’s evidence in her 12 March 2021 affidavit primarily went to her state of mind about the temporary purpose for which the applicant was brought to Australia. We have found her state of mind is irrelevant. That question of fact is for the Court to decide.

189    However Ms Lacorcia did also depose (at [11] of that affidavit):

Further, if the applicant’s surgical review on 11 March 2021 meant that he no longer needs to be in Australia for the temporary purpose for which he was brought to Australia (see paragraph 4 above), then within the scope of my responsibilities as an SRO I would refer him for removal, subject to any protection claim which the applicant may still wish to assert in respect of Papua New Guinea, and any decision by the Minister to consider whether or not to grant the applicant a visa pursuant to s 195A of the Act (I refer to paragraph 5 of my previous affidavit).

190    In our opinion, it is unclear from the terms of the Act that the applicant must be returned to Papua New Guinea, as Ms Lacorcia’s evidence assumed. The terms of the Act require removal to a regional processing country, without specifying which country. The specification of which country is, at least in the initial stage, a matter for direction by the Minister under s 198AD(5).

191    It is also unclear why removal under s 198AD would not be practicable until “any protection claim” made by the applicant had been made and determined. No executive policy was adduced in evidence by the respondents in this case, which was said to affect the performance of the duty under s 198AD(2). As we have noted, s 197C in terms does not apply to s 198AD.

192    It is clear from the applicant’s oral evidence that he sees removal as the lesser of the two evils he considers he is facing – the other being remaining in detention. As we explain below, the prospect of a positive exercise of power under s 195A is, at best, no more than a temporary reprieve, and a prospect that remains hypothetical.

193    In our opinion, there is no evidence presently before the Court to suggest that removal under s 198AD is not reasonably practicable. However, that is unlikely to be sufficient for the grant of an order in the nature of mandamus. The parties with the capacity to adduce relevant evidence are the respondents, not the applicant. Yet, there is a question of how far the respondents’ burden travels in relation to an application for mandamus to compel performance of the duty in s 198AH(1A). In the setting of AJL20, it may be more readily accepted the burden of proof as to reasonable practicability remains with the Commonwealth. That is because the Commonwealth must prove there continues to be a lawful purpose for an individual’s detention, and if the lawful purpose is said to be removal, it will bear the onus of proving it continues to take steps towards removing a person “as soon as reasonably practicable”.

194    In our opinion, it is less clear that is the case in the present circumstances. Therefore, the familiar propositions to be drawn from Blatch v Archer [1774] EngR 2; 98 ER 969 at 970, to the effect that “all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”, are not as prominent. The approach described in Blatch v Archer applies to the party with the burden of proof. In G v H [1994] HCA 48; 181 CLR 387, Brennan and McHugh JJ said at 391 to 392:

when a court is deciding whether a party on whom rests the burden of proving an issue on the balance of probabilities has discharged that burden, regard must be had to that party’s ability to adduce evidence relevant to the issue and any failure on the part of the other party to adduce available evidence in response.

See also Australian Securities and Investments Commission v Hellicar [2012] HCA 17; 247 CLR 347 at [165]-[170].

195    Where a party seeks an order in the nature of mandamus, the onus lies on that party to prove the facts necessary to justify the grant of such relief. That is because the grant of this remedy lies for a refusal, actual or constructive, to perform a duty which, in law and in fact, ought to have been performed: see Re Media, Entertainment and Arts Alliance; Ex Parte Hoyts Corporation Pty Ltd [1993] HCA 40; 178 CLR 379 at 394. In the present circumstances, and especially if (contrary to our principal finding) the treatment for the lipoma was part of the temporary purpose for which the applicant was transferred to Australia, it is simply not possible on the evidence to make any conclusive findings one way or the other as to whether there has been an actual or constructive refusal to perform the duty in s 198AD(2).

196    The supplementary submissions filed on behalf of the Commonwealth do not clarify the position in a way which enables findings to be made on the balance of probabilities. The equivocal nature of the applicant’s own position, because of his expressed fears of returning to Papua New Guinea, also mean no findings can be made on the balance of probabilities, on the current state of the evidence.

197    Therefore, the appropriate course is to find that, on the evidence, the applicant has not discharged his burden of proof in relation to mandamus, and no such relief should presently be granted.

198    However, the applicant has discharged his burden of proof in relation to s 198AH and is entitled to declaratory relief: see [227]-[229] below.

Does the evidence about the Minister’s potential consideration of the power in s 195A affect reasonable practicability?

199    It is appropriate to make findings about the respondents’ contention that the potential consideration of an exercise of power under s 195A affects the reasonable practicability of removing the applicant, especially in light of the further orders being made by the Court.

200    Section 195A provides:

195A Minister may grant detainee visa (whether or not on application)

Persons to whom section applies

(1)    This section applies to a person who is in detention under section 189.

Minister may grant visa

(2)    If the Minister thinks that it is in the public interest to do so, the Minister may grant a person to whom this section applies a visa of a particular class (whether or not the person has applied for the visa).

(3)    In exercising the power under subsection (2), the Minister is not bound by Subdivision AA, AC or AF of Division 3 of this Part or by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4)    The Minister does not have a duty to consider whether to exercise the power under subsection (2), whether he or she is requested to do so by any person, or in any other circumstances.

Minister to exercise power personally

(5)    The power under subsection (2) may only be exercised by the Minister personally.

Tabling of information relating to the granting of visas

(6)    If the Minister grants a visa under subsection (2), he or she must cause to be laid before each House of the Parliament a statement that (subject to subsection (7)):

(a)    states that the Minister has granted a visa under this section; and

(b)    sets out the Minister’s reasons for granting the visa, referring in particular to the Minister’s reasons for thinking that the grant is in the public interest.

(7)    A statement under subsection (6) in relation to a decision to grant a visa is not to include:

  (a)    the name of the person to whom the visa is granted; or

(b)    any information that may identify the person to whom the visa is granted; or

(c)    if the Minister thinks that it would not be in the public interest to publish the name of another person connected in any way with the grant of the visa—the name of that other person or any information that may identify that other person.

(8)    A statement under subsection (6) is to be laid before each House of the Parliament within 15 sitting days of that House after:

(a)    if the decision to grant the visa is made between 1 January and 30 June (inclusive) in a year—1 July in that year; or

(b)    if the decision to grant the visa is made between 1 July and 31 December (inclusive) in a year—1 January in the following year.

201    In our opinion, the evidence of Ms Gill about the Minister’s potential consideration of the power in s 195A is not relevant to the question of when the duty in s 198AD arises for performance. That is because the powers are specific powers, directed at “unlawful maritime arrivals”. It is not clear from their terms that the remainder of the scheme of the Act is intended by the Parliament to be capable of affecting the question of reasonable practicability under s 198AD. For example, the Minister is given a specific power by s 198AE to exempt individuals from the operation of s 198AD, and thus permit them to remain in Australia, although likely in detention unless other powers are exercised in their favour. Of its nature, the scheme enacted for the taking of “unlawful maritime arrivals” to regional processing countries, and the exceptional transfer back to Australia for temporary purposes, does not contemplate that once they no longer need to remain for that temporary purpose, they can continue to be detained in Australia only because of the potential for the Minister to exercise a non-compellable power under s 195A, or to consider exercising such a power. To say as much is not to deny the ability of the Minister to exercise the power conferred by s 195A in respect of a person who is in Australia for a temporary purpose: plainly, such people otherwise may well fall within the terms of that provision. Rather, it is to find that prolonging a person’s detention (and their removal) because of the possibility of the exercise of that personal power is not intended by the scheme of the Act to fall within what is meant by “as soon as reasonably practicable” in s 198AD(2). The Minister has the power in s 198AE available if he considers it is in the public interest that an individual not be taken back to a regional processing country after they no longer need to be here in Australia.

202    This stands in contrast for example to the way other aspects of the legislative scheme (including s 195A) might affect the timing of the performance of the duty in s 198. See generally Plaintiff M61 at [35]; SZSSJ v Minister for Immigration and Border Protection (No 2) [2015] FCAFC 125; 234 FCR 1 at [48]-[52]; Plaintiff M96A at [28]; and NATB at [42] and [48]. See also WKMZ at [113]-[136].

203    On the evidence, there are some indications that the Minister has decided to consider whether or not to exercise the power, and has in that sense embarked upon such a consideration, of the kind described by the High Court in Plaintiff M61 at [9], [78]-[80], in relation to a different non-compellable power, with the same textual formulation.

204    Ms Gill’s evidence is that

On 12 March 2021 at 17:58, I approved the submission which asks the Minister to indicate whether he wishes to exercise his power under s 195A of the Act to grant the applicant a Bridging E (subclass 050) visa.

(Emphasis added.)

205    In fact, the memorandum describes two proposed (and presumably sequential) visas: a Humanitarian Stay (Temporary) visa (subclass 449) valid for seven days, and a final departure Bridging E (subclass 050) visa (FDBVE).

206    The timing of this proposal was left unexplained by the evidence. It happened to be one week before the hearing in these proceedings, after the applicant had been detained in Australia, with overwhelming evidence from the Commonwealth’s own health providers about the effect that detention was having on him, for more than 18 months.

207    Other indications are an email sent by Ms Gill on Friday, 12 March 2021 at 5:58 PM, which refers to its subject as

195A – 2nd Stage Submission – [applicant] – CID

208    This suggests the Minister may have already decided to consider whether or not to exercise the s 195A power.

209    The first page of the memorandum to the Minister (being the only part of that memorandum adduced in evidence by the respondents) states, under the heading “timing”

Not applicable. [The applicant] in held immigration detention. Should the Minister wish to intervene, please arrange with the Department in advance a suitable time for the signing to take place.

(Emphasis added.)

210    The wording on this page of the memorandum, in terms of the options given to the Minister, also suggest the Minister has decided to consider whether or not to exercise the power. The options are “intervene/decline to intervene”. There are no references to “deciding” whether or not to consider exercising the power.

211    The wording also asks the Minister to choose the length of any visa to be granted, as between 6 or 12 months.

212    However, no positive contention or submission was made on behalf of the respondents that this was the stage of the Minister’s consideration. Relevantly, this is what was put to the Court:

Now, I mentioned that Ms Gill deposes to a process having started leading to consideration by the Minister of the possible grant of a visa. She, as part of her duty, has approved a submission on that subject, which was sent to the Parliamentary coordinator who will, in the ordinary course, send it to the Minister’s office, paragraph 6 of her 35 affidavit, and we say in paragraphs 19 to 22 of the submissions that where duty to remove a person or to take a person to another country under section 198AD should be read as subject to the pendency of any process of that kind.

213    And a little later there was this exchange:

GRIFFITHS J: I just wonder whether you might help me on another point, Mr Kennett, and it arises – it relates to what you say in paragraphs 16 and 19 of your submissions. You’ve already made reference to section 19. Has the Minister indicated that he is prepared to consider the exercise of non-compellable power and, if so, where is the evidence of that decision? ..... from the High Court authorities that there’s two steps in this. There’s the consider “whether or not I will exercise the 35 power”, and then there’s the consideration of the exercise of the power after you’ve decided to consider it, and when I look at Ms Hillary’s affidavit in the appeal book at page 63, paragraph 10:

On 9 August the plaintiff was referred for consideration against the guidelines. That process was finalised without referral to the defendants.

And then:

The plaintiff’s case will be assessed against the guidelines in due course. If appropriate, will be referred for consideration.

In any event, on the evidence as it stands there is an insufficient basis to find on the balance of probabilities that the Minister is even considering whether to exercise the power in s 195A in relation to the applicant.

Now, I assume she’s referring there that consideration is the exercise of the power or not, but where is the evidence that the Minister has given a green light to his department to send him a submission on the substantive exercise of the non-compellable power? Because I can’t find it.

MR KENNETT: Yes, your Honour. 197AB is a different power, but 195A is referred to in paragraph 11.

GRIFFITHS J: Sorry, that’s what I meant to refer to.

MR KENNETT: Yes.

GRIFFITHS J: I beg your pardon. It’s 11 and 12 I’m talking about.

MR KENNETT: Yes. 15

GRIFFITHS J: Yes. Ignore 10.

MR KENNETT: Yes. The evidence that your Honour is seeing is the evidence that we have. I have seen something about it being at the second stage rather than the first, but I don’t think I can refer your Honour to anything in the material that confirms that.

GRIFFITHS J: That’s what makes it so hard for us, Mr Kennett. I mean, you’ve got – your clients have got the onus in this, and it just – there seem to be too many unfortunate gaps in this material, I have to say for my own part.

MORTIMER J: Mr Kennett, how do you submit we should read that single page to the NBN [MBN] that we’ve got, at the end of Ms Gill’s affidavit where – I will try not to give you the PDG [PDF] page this time. Page 6, where the recommendation is that the Minister should indicate whether you wish to exercise your power and then the Minister is given two choices: intervene/decline to intervene, and given a choice about the length of the bridging visa.

MR KENNETT: Yes.

MORTIMER J: Going to Justice Griffiths’ question, how do you submit we should read that?

MR KENNETT: If the Minister agrees to consider the submission, he will be considering the exercise of the power, rather than the preliminary question of considering whether to consider it. These are recommendations or choices – possible courses of action being put to the Minister. No more than that. One possibility, of course, is that the Minister declines to intervene, but what’s being suggested to him by the department if he does wish to intervene is a short humanitarian stay temporary visa followed by a bridging visa which would last for either six months or 12 months.

214    The respondents’ submissions remained somewhat equivocal and refrained from giving the Court a clear indication whether the Minister was, at the time of the hearing, deciding whether to consider exercising his s 195A power; or had decided to consider doing so and was in the process of deciding whether or not to grant the applicant a visa. There had also been an obviously deliberate forensic decision not to adduce evidence of the entirety of the Ministerial Briefing Note, and only to adduce evidence of its first page.

215    In those circumstances, on the evidence we do not consider we can be satisfied on the balance of probabilities about what stage of consideration the Minister was engaged in at the time of the hearing. The failure on the respondents’ part to clarify this matter supports our view that the s 195A process (whatever it might be) is not relevant to the time for the performance of the duties in s 198AD(2). Further, there is no evidence of any directions given to any officers that they should not be taking steps towards the removal of the applicant because of any process under s 195A. There was only evidence from Ms Lacorcia that in her capacity as a “Status Resolution Officer” she “would refer [the applicant] for removal” if the applicant’s surgical review on 11 March 2021 means that he no longer needs to be in Australia for the temporary purpose for which he was brought to Australia. This evidence exposed no connection with the s 195A process.

216    Finally, the potential, or possibility, of the grant of a bridging visa to enable the applicant to depart Australia, with a possible duration of 6 or 12 months, cannot of itself affect the question whether it is reasonably practicable to remove the applicant to a regional processing country.

217    The visa is not a visa to remain in Australia for any purpose other than arranging departure. There was no evidence the applicant had any capacity, or intention, to arrange his own departure to any country. There was no evidence the respondents had made any third country arrangements for the applicant.

218    The possible visa is a visa to nowhere. It may give the applicant some temporary liberty (on what conditions – for example, work rights, access to Medicare and social security were not the subject of any evidence from the respondents) but in the absence of evidence of the kind just referred to, it does no more than briefly postpone the return of the applicant to the very position he is in now – in detention awaiting removal back to a regional processing country.

219    Accordingly, to the extent the respondents submitted that it was not reasonably practicable to take the applicant to a regional processing country because of what the evidence established about a process having commenced in relation to s 195A, that submission should be rejected.

The unlawful detention argument

220    In resolving the present application, it is not necessary to address the merits of the parties’ arguments about the correctness, or incorrectness, of AJL20. That question is before the High Court and will be determined in due course.

221    It is not necessary to do so because the applicant’s arguments based on AJL20 suffer from factual difficulties. First, whether or not treatment for a lipoma formed part of the temporary purpose for which the applicant was brought to Australia, the evidence is – and we have found – that once here the applicant requested treatment for that condition, he received it. There were substantial delays – initially unexplained (from July to December 2019) and then explained by the COVID-19 pandemic and the cessation of elective surgery in Victoria. That treatment was part of the discharge of the Commonwealth’s duty of care to the applicant, as a person detained in Australia. At the time of the hearing, that treatment had almost, but not quite, finished. The lipoma having been treated, it would not have been reasonably practicable to remove the applicant until the treatment was complete, especially given the fact the applicant had refused treatment for it in Papua New Guinea and if returned too soon, may not have the required post-surgery examinations.

222    Second, and unlike the circumstances in AJL20, it is clear on the evidence that the purpose for the applicant’s detention was to ensure he was available to be removed to a regional processing country once he no longer needed to remain in Australia for the temporary purpose for which he had been brought to Australia. On the view of the facts we have taken, after October 2019 he no longer needed to be in Australia for the temporary purpose for which he was brought: see [179] above. Yet it was in November 2019 that the applicant requested treatment for his lipoma. Why he could not have been released into the community in Australia, and received treatment for the lipoma in late 2019, and then been returned to a regional processing country, was not explained on the evidence. The facts were, that by the time his elective surgery was scheduled, it had to be cancelled because of the COVID-19 pandemic. As Perry J pointed out in argument, there is no evidence before the Court about the effects of the pandemic on removals to regional processing countries. Nevertheless, the surgery having been scheduled (but postponed), the applicant’s detention in Australia (and his non-removal) is explained by the need to wait for that elective surgery to be available again. It was not suggested on behalf of the applicant that his elective surgery, when it did occur, was unreasonably or unjustifiably delayed in the circumstances.

223    The facts are sufficiently distinguishable from AJL20 that even if the Court were to proceed on the basis that the decision is correctly decided, the applicant would not be entitled to the relief sought on the evidence.

Conclusion

The appeal

224    For the reasons advanced by the Minister, the appeal in NSD1355/2020 should be dismissed. The parties should file and serve brief submissions on the question of costs in the appeal.

The original jurisdiction proceeding

225    Due to the factual differences which we have outlined above, the applicant has not proven he is entitled to relief of the kind granted by the Court in AJL20, assuming that case to be correctly decided.

226    On the evidence before the Court, the applicant has established on the balance of probabilities that

(a)    the three preconditions in s 198AH(1A) are met; and

(b)    the duty in s 198AD(2) is engaged.

227    That is sufficient for the grant of declaratory relief in favour of the applicant. The applicant sought a declaration that

the applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia.

228    A declaration should be granted in those terms. So that there is no doubt about the Court’s findings, declarations as to the satisfaction of all three pre-conditions in s 198AH(1A) should be made, as should a declaration that s 198AH(1) applies to the applicant. The combination of those three declarations means that the duty in s 198AD(2) is engaged, and the applicant must be removed to a regional processing country “as soon as reasonably practicable”.

229    As to the claim for relief by way of mandamus, there is no evidence before the Court which would explain or justify the non-removal of the applicant under s 198AD(2) to a regional processing country in the immediate future. We have found that whatever the true nature of the process under s 195A in relation to the applicant, the current evidence about that process does not affect our conclusion about the time for the performance of the duty under s 198AD(2).

230    However, the applicant has not discharged his burden to establish on the balance of probabilities that it is reasonably practicable to remove him to a regional processing country, and that there has been an actual or constructive refusal to perform the duty imposed by s 198AD(2). Therefore, mandamus should not issue at this point. That is not to say that it will never be appropriate for an order in the nature of mandamus to issue in this proceeding, if the respondents fail to act in a timely manner, and no other resolution of his migration status in Australia is achieved. If the applicant’s parlous circumstances are not otherwise resolved, it would be unsatisfactory, and not in the interests of the administration of justice, for the question of when it will be reasonably practicable to remove the applicant to be left without judicial determination, on proper evidence.

231    The applicant has been deprived of his liberty for a considerable period of time and, so far as the evidence demonstrates, without any substantive psychiatric treatment of the kind contemplated by the Panel which recommended his transfer to Australia. After the completion of his lipoma surgery, the evidence does not suggest any justification for the non-performance of the duties for which the Act provides. The evidence hints at a number of possibilities, but they rise no higher than that. The applicant seeks performance of the removal duty as the lesser of the two evils facing him, because he remains deprived of his liberty by the executive. That continued deprivation of liberty, especially in the circumstances of the evidence before the Court, is a serious matter.

232    It is appropriate that in order to comply with its duties under s 22 of the Federal Court Act, and resolve all matters in controversy between the parties, while avoiding a multiplicity of proceedings, the Court make orders which are designed to facilitate the final resolution of the applicant’s presence and status in Australia. In substance, that is what he has sought to do by this proceeding. Now that the Court has made the findings it has, it is to be hoped that the parties can engage constructively to find an agreed solution, without the need for further protracted hearings, and the expenditure of further costs and resources. The parties will be directed to attend and participate in a mediation before a Judicial Registrar of this Court for that purpose.

233    However, the referral to mediation will also allow for the parties to agree on any further litigated steps in this proceeding, if they cannot reach any final substantive agreement. It will be apparent from the text of the order that the referral is not intended to be limited to the specific questions there set out but, at the discretion of the Judicial Registrar, to allow the parties to address other questions or matters in the confidential setting of a mediation. To avoid any doubt, the Court confirms the direction to attend and participate in mediation is directed at all three respondents.

234    The question of costs in the original jurisdiction proceeding should also initially be the subject of mediation. If it cannot be resolved in that setting, the parties are to file brief submissions on the question of costs, in accordance with the time set out in the Court’s orders made today.

Associate:

Dated:    27 April 2021