Federal Court of Australia

Hassan (formerly AFX21) v Minister for Home Affairs [2025] FCAFC 57

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant file any submissions (not exceeding five pages) and any relevant evidence on the question of costs by 4pm AEST on 6 May 2025.

3.    The respondents file any submissions in response (not exceeding five pages) and any relevant evidence by 4pm AEST on 13 May 2025.

4.    The question of costs be decided on the papers.

5.    In the event that the appellant does not file any submissions on costs in accordance with order 2, orders 3 and 4 be vacated and instead an order be made that the appellant pay the respondents’ costs.

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

REASONS FOR JUDGMENT

KATZMANN AND KENNETT JJ:

1    The appellant is a citizen of Somalia who arrived in Australia as an “unauthorised maritime arrival” in 2013 and was taken, pursuant to provisions of the Migration Act 1958 (Cth) (the Act), to Papua New Guinea (PNG). He was brought back to Australia in December 2019 for treatment of his mental health issues and was placed in immigration detention. In January 2020 the appellant made a request to be removed to PNG. He restated that request in June 2020. Nothing concrete was done about giving effect to those requests until February 2021, after the appellant had commenced proceedings in this Court.

2    Ultimately, the appellant was not returned to PNG. On 8 July 2021 the appellant was approved for resettlement in the United States of America (US). He left Australia for the US on 11 August 2021 and remains there.

3    By his originating application (filed on 22 January 2021) the appellant sought a declaration that his detention was not authorised by the Act and an order in the nature of habeas corpus. The originating application went through several changes in response to developments in the case law concerning detention under the Act and changes in the appellant’s circumstances. By the time of the hearing before the primary judge, the fifth further amended originating application sought (relevantly to this appeal) damages for breaches of a duty of care, alleged to be owed by the respondents, to limit the duration of his detention to that required for his removal to PNG as soon as reasonably practicable after his request in January 2020 or June 2020. The primary judge dismissed the application.

Relevant provisions of the Act

4    It is common ground that the circumstances of the appellant’s arrival in Australia in 2013 made him an “unauthorised maritime arrival” as defined by s 5AA of the Act. He still has that status for the purposes of the Act. Having arrived without a visa, upon entry into the “migration zone” he became an “unlawful non-citizen” (defined by s 14) and was required to be detained pursuant to s 189 of the Act.

5    Section 196 of the Act governs the duration of detention of an unlawful non-citizen. Section 196(1) provides (and has provided at all relevant times) as follows.

(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.

6    The appellant was never granted a visa or deported under s 200 of the Act, so that s 196(1)(b) and (c) can be put to one side.

7    General provisions for the removal of unlawful non-citizens who are in detention are contained in s 198. Relevantly here, s 198(1) provides as follows.

(1)    An officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed.

8    However, s 198AD creates a special regime for unauthorised maritime arrivals, which applies so long as there is at least one country designated as a “regional processing country” (RPC) under s 198AB. At all relevant times for this appeal, PNG and the Republic of Nauru (Nauru) were designated as RPCs. The general provisions of s 198 do not apply to a person to whom s 198AD applies (s 198(11)).

9    During the period in which the appellant was detained, s 198AD provided as follows.

(1)    Subject to sections 198AE, 198AF and 198AG, this section applies to an unauthorised maritime arrival who is detained under section 189.

Note:    For when this section applies to a transitory person, see section 198AH.

(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.

(2A)    However, subsection (2) does not apply in relation to a person who is an unauthorised maritime arrival only because of subsection 5AA(1A) or (1AA) if the person’s parent mentioned in the relevant subsection entered Australia before 13 August 2012.

Note 1:    Under subsection 5AA(1A) or (1AA) a person born in Australia or in a regional processing country may be an unauthorised maritime arrival in some circumstances.

Note 2:    This section does not apply in relation to a person who entered Australia by sea before 13 August 2012: see the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012.

Powers of an officer

(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.

(4)    If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:

(a)    subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and

(b)    section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.

Ministerial direction

(5)    If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(6)    If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.

(7)    The duty under subsection (5) may only be performed by the Minister personally.

(8)    The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(9)    The rules of natural justice do not apply to the performance of the duty under subsection (5).

(10)    A direction under subsection (5) is not a legislative instrument.

Not in immigration detention

(11)    An unauthorised maritime arrival who is being dealt with under subsection (3) is taken not to be in immigration detention (as defined in subsection 5(1)).

Meaning of officer

(12)    In this section, officer means an officer within the meaning of section 5, and includes a member of the Australian Defence Force.

10    Section 198B provides power to an “officer” to bring a “transitory person” to Australia for a “temporary purpose”. “Transitory person” is defined in s 5 to include a person who was taken to an RPC under s 198AD.

11    The duties in ss 189, 196 and 198AD are imposed, and the power in s 198B is conferred, on “an officer”. “Officer” is defined for these purposes in s 5 to include an “officer of the Department” (currently the Department of Home Affairs (the Department)) as well as officers under the Customs Act 1901 (Cth), members of the Australian Federal Police and the State and Territory police forces and persons authorised in writing by the Minister. For the purposes of ss 198AD and 198B, “officer” also includes a member of the Australian Defence Force (ss 198AD(12), 198B(3)).

12    Generally, a person who has been brought to Australia for a temporary purpose under s 198B (and who remains an unlawful non-citizen) must be removed from Australia under s 198(1A) when the person no longer needs to be in Australia for that purpose. However, again, there is a different provision for a person in that position who is also an unauthorised maritime arrival: a person in that category must (with some presently irrelevant exceptions) be taken to an RPC again when their presence in Australia is no longer necessary for the relevant “temporary purpose”. This is the effect of s 198AH(1), which provides as follows.

(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).

13    It is apparent from the terms of s 198AH(1) that an unauthorised maritime arrival, who has been brought back to Australia for a “temporary purpose” under s 198B, becomes subject once again to s 198AD at the point where the relevant temporary purpose no longer requires them to be in Australia (and at that point s 198(1A), which would otherwise apply to them, is excluded). However, until that time, s 198AD does not apply. A consequence is that, until that time, s 198 is not prevented from applying; so that a written request by the person to be removed from Australia can trigger an obligation under s 198(1) to remove the person. This somewhat convoluted relationship between the provisions was explained in Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 at [12]-[18] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ).

Agreed facts in the present case

14    The parties filed an agreed statement of facts covering the appellant’s immigration history and the attempts to return him to PNG. The basic facts relevant to the resolution of this appeal can be summarised as follows (based on that statement of facts and uncontroversial evidence before the primary judge).

(a)    The appellant arrived at Christmas Island on 13 September 2013 as an unauthorised maritime arrival seeking asylum and was detained under s 189(3) of the Act.

(b)    On 28 October 2013 the appellant was taken to Manus Island in PNG under s 198AD.

(c)    On 23 October 2015 the government of PNG recognised the appellant as a refugee.

(d)    In November 2019 steps were taken under what was then s 198E of the Act for the transfer of the appellant to Australia for treatment of mental health issues. This included a recommendation from a Medical Officer of the Commonwealth (MOC) that the transfer should occur for that purpose. However, s 198E and associated provisions were repealed with effect from 5 December 2019.

(e)    On 6 December 2019 an officer in the Department approved the appellant’s transfer to Australia under s 198B for the purpose of receiving medical treatment.

(f)    That transfer occurred on 18 December 2019. On arrival in Australia the appellant was detained under s 189(1) of the Act.

(g)    During January 2020 the appellant attended some group wellbeing sessions.

(h)    On 21 January 2020 the appellant attended an interview with US authorities for potential resettlement in the US.

(i)    At 4.19 pm on 21 January 2020 the appellant made what the parties agreed constituted a request under s 198(1) of the Act. The request was contained in an email that he sent to a departmental officer which said (in part) “pull out my case from fucking slavery process, take me back to PNG”.

(j)    The parties agreed that no steps were taken until 16 February 2021 to give effect to the appellant’s request to return to PNG.

(k)    On 10 February 2020 the appellant made an oral request to be removed to Somalia. This request was referred to the relevant “removals team” in the Department but was withdrawn on 19 February.

(l)    A state of emergency was declared in PNG on 23 March 2020 in response to the COVID-19 pandemic.

(m)    On 2 June 2020 the appellant made what is referred to as a further request for removal to PNG. He did this by submitting a “detainee request form” which referred to the earlier request and said “please … consider my request”. This precipitated some correspondence but, as noted above, nothing was done to give effect to the request until February of the following year.

(n)    On 22 January 2021 the appellant filed his originating application.

(o)    On 16 February 2021 the Department requested approval from PNG to return the appellant. In principle approval was received on 25 February 2021 and clarification was sought regarding quarantine and entry requirements on 2 March 2021.

(p)    On 12 March 2021, the Department proposed to return the appellant to PNG on 23 March and informed PNG authorities that he had been assessed as fit to travel without an escort. He was transferred to Brisbane, and a flight to Port Moresby and a hotel room (for the purpose of COVID-19 quarantine) were booked. However, on 20 March 2021 PNG authorities suggested that his return be delayed until further notice for reasons related to the COVID-19 outbreak in that country.

(q)    A direction under s 198AD(5) of the Act was made on 25 March 2021 directing officers to take unauthorised maritime arrivals to PNG in prescribed circumstances, and otherwise to take such persons to Nauru. The next day, the Department began the process of taking the appellant to Nauru. However, the appellant sought injunctive relief to prevent his removal to Nauru. On 29 March 2021 the respondents gave an undertaking not to take any steps to remove the appellant to Nauru before that application was resolved. The attempt to take the appellant to Nauru was never revived.

(r)    Steps to take the appellant back to PNG began again on 20 April 2021. On that day PNG’s Chief Migration Officer approved his return. On 21 April the Department proposed to return the appellant on 13 May. However, approval was not received from PNG’s State of Emergency Controller until 3 June.

(s)    Following that approval a statement of identity was obtained; the appellant was assessed by a registered nurse as fit for travel; and flights, an escort and a hotel room were booked for the appellant to travel to Port Moresby on 21 June 2021.

(t)    However, on 17 June 2021 the appellant refused to undertake a COVID-19 test. He refused again on 18 June. As a result, the arrangements for his removal on 21 June were cancelled.

(u)    On 8 July 2021 the appellant was approved for resettlement in the US. He departed Australia for the US on 11 August 2021.

(v)    The appellant was attending appointments with mental health practitioners up to at least 4 June 2021. On 10 March 2021 the Department sought an opinion from an MOC as to whether the appellant still needed to be in Australia for the temporary purpose for which he had been brought from PNG. Neither the agreed facts nor the material before this Court included any response to that request. However, before this time, in an email of 16 February 2021 (discussed below at [44]-[45]), officers appear to have been proceeding on the understanding that the temporary purpose for which the appellant had been brought to Australia was “complete”.

The issues before the primary judge

15    The parties agreed on the issues requiring determination, recorded by the primary judge at [32] of her Honour’s reasons:

(1)    Did the respondents owe a duty of care to limit the duration of the applicant’s detention to that required for the purpose of removing the applicant to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020 to be returned?

(2)     Between 18 December 2019 and 16 February 2021, had the respondents established a system to administer requests for return to regional processing countries by medevac transferees such as the applicant?

(3)    If the answer to issue two is “no”, was the failure to establish such a system in breach of the respondents’ (alleged) duty of care?

(4)     Was the respondents’ failure to take steps to remove the applicant to PNG from the time of his requests for return to 16 February 2021 in breach of their duty of care?

(5)     Did any breach of duty cause foreseeable harm to the applicant in the form of loss of freedom from 21 January 2020 to 17 June 2021 and/or mental distress and anxiety?

(6)     Were the respondents’ attempts to remove the applicant to PNG between 16 February 2021 and 16 June 2021 frustrated by the applicant himself?

(7)     Did the 2021 s 198AD(5) Direction give the respondents authority to take the applicant to Nauru?

(8)     Do the civil liability laws of Victoria and/or Queensland apply to the applicant’s claim and, if so, to what effect?

(9)     Is the applicant entitled to compensatory damages and, if so, in what amount?

(10)     Is the applicant entitled to aggravated and exemplary damages, and if so, in what amount?

16    Issues (6) and (7) ultimately did not require determination, for reasons recorded by the primary judge at [33]. Her Honour dealt with the remaining issues under the following headings:

(a)    Did the respondents owe a duty of care to the appellant? The primary judge answered this question in the negative (at [88]-[102]).

(b)    If such a duty did exist, was it breached? This question did not strictly arise in the light of the primary judge’s finding that no duty existed. However, her Honour found (as to issue (2) above) that there was a system in place for dealing with requests by medevac transferees to return to RPCs (at [117]-[118]). As to issue (3), it was agreed that no steps had been taken up to 16 February 2021; however, the primary judge did not express a view as to whether this would constitute a breach of a duty of care if such a duty existed.

(c)    Which was the relevant governing law? The primary judge held that the civil liability law of Victoria applied to the dispute (at [159]).

(d)    Has the appellant established that the alleged breach caused loss or damage? The primary judge found that causation had not been established because border restrictions imposed by the PNG government would have limited the respondents’ capacity to take the appellant to that country after 20 March 2020. In short, the appellant had not proved that compliance with the alleged duty during the period of the alleged breach (up to 16 February 2021) would have led to his removal and release from detention at any time before 17 June 2021 (at [187]-[192]).

(e)    Does a statutory limit or bar apply to the claim? This question concerned whether the appellant’s general claim for damages was capped by s 28G of the Wrongs Act 1958 (Vic) (the Wrongs Act) and whether his claim for mental distress was barred by s 28LE of that Act. It was unnecessary to decide these issues in the light of the primary judge’s earlier findings, and her Honour considered it preferable that the issues of statutory construction be resolved in a case where they actually arose (at [204]).

(f)    What is the amount of damages for which the respondents severally or jointly are liable? This issue also did not arise. The appellant sought $3,584,000 in general damages, based on $7,000 per day for 512 days of detention from 21 January 2020, together with aggravated and exemplary damages. The primary judge rejected this approach and indicated that she would have awarded damages in the range of $100,000 to $150,000 (at [213]).

The issues in the appeal

17    The grounds set out in the amended notice of appeal are as follows.

1.     Her Honour erred in holding that the respondents did not owe a duty of care to the appellant in the terms claimed by the appellant.

2.     Her Honour erred in finding that the respondents had a system to administer requests for return to regional processing countries between 18 December 2019 and 16 February 2020 [sic] such that the appellant had not established that the respondents were in breach of the claimed duty of care on this basis.

3.     Her Honour erred in finding that the Papua New Guinea border restrictions in response to the Covid pandemic after 20 March 2020 broke the factual chain of causation as to abrogate the respondent’s liability for the applicant’s loss of freedom and consequent mental distress and anxiety.

4.     Her Honour erred in her assessment of the quantum of damages.

Duty of care (ground 1)

18    Whatever their scope, all duties of care are discharged by the exercise of reasonable care; they do not impose more stringent or onerous burdens: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [43] (Gummow J; Callinan and Heydon JJ agreeing). Thus, a duty to achieve a particular result (eg confining the appellant’s detention to a specified duration) is not one that the law of tort would impose.

19    The primary judge, at [88]-[92], reasoned that the “pleaded duty” was cast in absolute terms and a duty cast in these terms was not one that the common law would impose. For this reason alone, her Honour concluded, the application must fail.

20    The proposed duty of care referred to in the agreed list of issues referred to above was in the same terms as that pleaded against the respondents in the second further amended statement of claim (2FASOC) at [22] (the pleaded duty):

a duty of care to limit the duration of the applicant’s detention to that required for the purpose of removal of the applicant to PNG as soon as reasonably practicable from the time of the applicant’s written requests of 22 [sic] January 2020 and 2 June 2020 to be returned.

21    In its terms, as the primary judge observed, this was not a duty to take reasonable care but a duty to bring about a result. Counsel for the appellant did not seek to move away from this pleading or seek to submit that what was really meant by it was a duty to take reasonable care to avoid unnecessary prolongation of the appellant’s detention. He adhered stoically to the formulation in 2FASOC and sought to explain why the duty had been formulated in this way.

22    The explanation of thought processes behind the pleading did not make the pleaded duty any less problematic. Rather, what emerged was that the appellant conceded that a claim for damages for breach of statutory duty, based on a failure to comply with s 198(1), could not succeed (in the light of WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 at [56] (French J)); however, he sought to rely on breach of a duty identical in substance to that imposed by s 198(1) to found a claim ostensibly in negligence. This tended to emphasise the inconsistency between the pleaded duty and the basic concept of a duty of care.

23    The primary judge was therefore correct to hold that the respondents did not owe to the appellant a duty of care of the kind pleaded. No alternative duty was suggested. It followed from this conclusion that the claim for damages and associated declaratory relief had to be dismissed. Ground 1 must therefore be rejected.

24    In these circumstances it is preferable that we not express concluded views as to whether the respondents could be found to owe a common law duty to a person in the appellant’s position, to exercise reasonable care to bring about that person’s removal from Australia (and thereby the end of their period in detention) expeditiously. A duty of that kind was not pleaded; indeed it was disavowed. Discussion of whether such a duty can exist should await a case in which it is pleaded.

Breach (ground 2)

25    Because of the terms in which the alleged duty of care was formulated, the parties did not join issue before the primary judge as to whether the failure to take steps to remove the appellant to PNG prior to February 2021 amounted to a failure to take reasonable care. The respondents accepted that no steps had been taken to remove the appellant before 16 February 2021 but did not go into evidence as to what the justification for that inactivity might have been. Breach of the pleaded duty, if it existed, would be established simply by the appellant not having been removed within the period “required for the purpose of removing the applicant to PNG as soon as reasonably practicable”. Interestingly, there does not appear to have been any attempt before the primary judge to establish what that period was.

26    Meanwhile, the question whether the respondents had “established a system to administer requests for return to regional processing countries by medevac transferees such as the applicant” would likely have been an important one if the question of breach turned on whether the respondents had taken reasonable care. However, in circumstances where reasonable care was not an element of the pleaded duty, the existence or non-existence of such a system was irrelevant. The issue was hypothetical, as the primary judge noted at [104].

27    However, there was a specific challenge to the primary judge’s factual finding in this respect, and that finding was defended by the respondents. We should therefore record our conclusion that her Honour’s finding was correct (and ground 2 must therefore be rejected) and the reasons for that conclusion.

The argument below and the primary judge’s reasoning

28    The relevant allegation was, as the respondents’ submissions noted, a narrow one. It was not pleaded that the respondents had in place a system that was inadequate, or a system that had been suspended or was not being properly followed. Nor was it pleaded that the respondents had breached their duty by failing to implement a system specifically tailored to “medevac transferees” who requested return to an RPC (as distinct from, for example, one dealing more generally with the return, at the appropriate time, of all such transferees).

29    The primary judge summarised the parties’ submissions as follows.

108    The applicant’s submissions on this issue reduce to three core propositions.

109    First, whilst the applicant accepts that he bears the onus of proof in relation to proving the non-existence of any system to administer requests, he submits that the onus of proof which he bears in relation to this issue is slight. In support of this proposition, the applicant relies upon the principle that “only comparatively slight evidence is required for the plaintiffs to discharge their onus in … [a] case where the facts are peculiarly within the knowledge of the defendant”. Thus, the applicant submits that, as the existence of any returns policy was a matter peculiarly within the respondents’ knowledge, he need adduce only “slight evidence” to discharge the evidential onus.

110    Secondly, the applicant submits that the evidence is sufficient to satisfy his onus of proof on this issue. In his submission, it can be inferred that any returns policy had been suspended by January 2020. That evidence includes, amongst other things, the facts that:

(1)    between 21 January 2020 and 16 February 2021, no steps were taken to give effect to the removal of the applicant from Australia;

(2)    this failure occurred despite the applicant twice requesting removal from Australia (on 21 January 2020 and 2 June 2020) under s 198(1) of the Migration Act;

(3)    there is no evidence specifically indicating that the applicant was unfit to travel during the relevant period, nor that PNG specifically refused to accept the applicant during that time; and

(4)    there is no evidence explaining the failure to take any steps to remove the applicant to PNG until 16 February 2021.

111    Thirdly, the applicant submits that the respondents have not provided any evidence which suggests the existence of any returns policy during the relevant period.

112    By contrast, the respondents submit that the evidence clearly establishes the existence of a system during the relevant period.

(Citations omitted; emphasis in original.)

30    It will be noted that the second and third of the appellant’s propositions did not completely align with the pleaded case of failure to “establish” a system. The respondents objected to the attempt to introduce an argument that any system had been “suspended”, and the primary judge agreed that it should not be permitted (at [114]). Her Honour concluded at [117] that:

…the totality of the evidence establishes that the respondents did have a system to administer requests for return to regional processing countries during the relevant period.

31    The reasons for that conclusion were explained, by reference to the evidence, from [118] to [140]. Her Honour held that the respondents had a threefold system in place for returning people brought from RPCs for medical reasons (at [118]). The first aspect was a “medical component” in which the health of detainees was assessed and determinations made as to whether each was fit to be transferred or not. The second aspect, which came into play if a detainee requested removal, involved the request being referred to the Regional Processing and Resettlement Taskforce (the Resettlement Taskforce) within the Department. The third aspect involved action by that taskforce. The primary judge referred to three bodies of evidence supporting this conclusion.

32    The first was a substantial body of evidence that there was a process for assessing whether a detainee was medically fit for removal (discussed at [119]-[129]). The second was evidence that, when a detainee requested removal, their status resolution officer (SRO) was required to refer the request to the Resettlement Taskforce (discussed at [130]-[132]). While there was no direct evidence of the work of the Resettlement Taskforce, the third was evidence from which it could be inferred that there was a system of legal checks and steps to be taken in handling matters referred to it (at [133]-[138]).

33    Additionally, her Honour rejected a submission by the appellant that no steps were taken to remove him before 16 February 2021 because of a policy of not carrying out such removals (at [140]).

The contentions on appeal

34    The appellant’s submissions began with the argument which was raised before the primary judge but not determined because it had not been pleaded, namely, that if a system existed it had been suspended. There was no application to amend the pleading and no attempt to establish that the primary judge had misunderstood its scope. This argument can be put to one side.

35    Reference was then made to the following aspects of the evidence.

36    First, emails exchanged shortly after the appellant’s request for removal included a reference to a “policy direction we are expecting shortly on returns to RPCs”. It was said that there was no evidence of any such policy.

37    The earliest email in this chain was the appellant’s brief and pithily expressed request for removal to PNG. Next in time was an email forwarding the request to the Melbourne Immigration Transit Accommodation (MITA) Status Resolution team, copying Sharon Edgerton (who was Director of Regional Resettlement, Resettlement Taskforce) and another person from the Department. Kui Grindlay, Assistant Director, MITA Status Resolution, responded:

As discussed, grateful if you/your team would please refer held cases that make contact with you back to their held SRO. There is a standard process for raising requests to see us and Mr MASSAN [sic] is clearly circumventing the process and may encourage others in held to do so.

…

Kindly disengage – we have carriage of this one.

(Emphasis added.)

38    Ms Edgerton responded the next day:

I note the below does not constitute a reasoned request to return to PNG, however, I have today just asked for the usual preliminary health and legal barrier checks to be conducted in the event we receive the policy direction we are expecting shortly on returns to RPCs and he continues to want to return.

The same checks have been requested for [another detainee] who she advised me today is also interested in return.

(Emphasis added.)

39    There are references in this chain of emails to an anticipated “policy direction” on return of detainees to RPCs, which might be thought to indicate a possibility that the Department had a (mistaken) view that such return was discretionary. However, this was not part of the pleaded case and the possibility was not explored. More relevantly, the email chain suggests the existence of (i) an established practice of requests for return to RPCs being referred to a specific team of officers and (ii) a set of “usual” checks to be undertaken when a request for removal was received (which were requested here even though the relevant officers seem to have had doubts about the appellant’s true intentions). These things are at least consistent with the existence of a set of procedures that can be described as a “system” for handling requests for return to RPCs.

40    Secondly, a SRO case review of the appellant dated 1 February 2021 (but expressed to be “as at 10/02/2021”) included the notation:

Case is dormant due to no immigration pathway onshore, current RPC return policies regarding RPC Transitory persons and current RPC placement policies.

41    We understand the word “no” in this sentence to apply to “immigration pathway onshore”, but not to what follows after the comma. If the author had intended to convey that there were also no “return policies” and no “current RPC replacement policies”, they would have been more likely to write “or” rather than “and” in the second line. On this understanding, the document is evidence that there were “RPC return policies regarding RPC Transitory persons” and “RPC placement policies”. Why those policies should have contributed to the appellant’s case being “dormant”, a year after he had made a request under s 198(1) of the Act, is somewhat mysterious and troubling; however, the case that was sought to be proved was one concerning the failure to establish a “system”. The reference to these policies tends, if anything, to support the existence of a relevant “system”.

42    Thirdly, in an email sent to other departmental officers on 14 February 2020 Mr Gary Jeffery (who was the appellant’s SRO) described a conversation with the appellant four days earlier as follows.

Other than the first occasion I met with him he has been quite argumentative and difficult to deal with. He ensures that his displeasure for being in immigration detentions is communicated very well. He appears very annoyed that he is in immigration detention.

When I engaged with him on Monday this week he again stated he wanted to leave detention. He stated he wanted to return to PNG or go home to Somalia. I let him know he could engage the PNG consulate himself or write me a letter expressing his wishes and I would pass it on to the relevant area of the department for him.

He was not happy with this so he requested to return to Somalia. We completed the DCI Part B interview and s l98 form however he refused to sign the s l98 form stating he wished to see an ABF officer in person before signing. I referred him to Vic Removals but as he did not sign I don't believe they will engage with him.

(Emphasis added.)

The request to return to Somalia was not pursued. There was a further conversation about that request on 20 February 2020 but the appellant, according to Mr Jeffery, “would not commit to returning to Somalia and has not signed a Request to be Removed”.

43    It was submitted that Mr Jeffery’s suggestion to the appellant that he could contact the PNG consulate itself was indicative of the Department not having any system of its own for processing requests by transitory persons to return to that country. We disagree. The appellant had formally been recognised as a refugee by the government of PNG and thus had a recognised status in that country. Making direct contact with PNG authorities might have been a way for him to accelerate the necessary clearances to re-enter PNG if that was what he wanted to do. It was not a surprising suggestion to make. Meanwhile, for the appellant’s return to occur, arrangements would presumably also need to be made for matters such as flights and escorts at the Australian end. Had Mr Jeffery been aware that there was no process for making those arrangements, it is unlikely that he would have encouraged the appellant to make contact with the PNG consulate. If anything, the suggestion tends to point to the existence of a “system” of some kind for dealing with cases such as that of the appellant. Mr Jeffery’s reference to a “relevant area of the department”, to which he could refer correspondence from the appellant, also points to the existence of such a system.

44    Fourthly, on 2 June 2020 the appellant made what was described as a “further” request for return to PNG but is probably better understood as a plea for something to be done about his existing request. A departmental officer (recorded only as “Clint”) wrote the following on the bottom of the request form, apparently as a record of a conversation with the appellant.

I met with you today and informed you that your name is on the list of people who want to return to PNG.

I recommend you contact The Ombudsman to discuss your concerns

45    It was submitted that no evidence of a “list” has been adduced. This is incorrect. The note itself was admitted for all purposes and is evidence of the truth of what it says, which necessarily involves the existence of the list to which it refers. The suggestion that the appellant should contact the Ombudsman says nothing one way or the other as to the existence of processes within the Department for handling requests by people in his position for return to RPCs.

46    Fifthly, the steps that were taken in relation to the appellant from 16 February 2021 began with an email of that date from Ms Edgerton to Ms Alana Sullivan (a First Assistant Secretary, also apparently part of that Taskforce). In that email Ms Edgerton said:

In response to a request made on 12 February 2021, Detention Health have provided late yesterday summarised medical advice from IHMS relevant to the request to return. This information indicates that the temporary purpose for which he was transferred to Australia is now complete, and that he is at this time fit for travel.

On available information, it would appear that the duty to take Mr HASSAN to a regional processing country as soon as practicable applies (s198AD) as he no longer needs to be in Australia for the temporary purpose.

On current advice there are no health or legal barriers to taking Mr HASSAN to a regional processing country.

The duty to take Mr HASSAN to a regional processing country will be subject to agreement that the country will accept Mr HASSAN.

47    Ms Sullivan responded as follows.

Thank you for your email. On the balance of the information provided, I agree it would appear that the Department now has a duty to return Mr HASSAN to a regional processing country.

Noting that both PNG and Nauru have previously indicated there are no practical barriers preventing a transfer, I am minded to approach both countries to ascertain their amenability to receive Mr HASSAN while he awaits his resettlement departure to the United States.

…

We will also need to take steps to advise Mr HASSAN that we are taking action to implement his request and that Nauru could be the receiving location.

48    The point was made that this exchange suggests an (incorrect) understanding on the part of the officers concerned that the appellant was liable to be taken to an RPC (which could be PNG or Nauru) pursuant to s 198AD of the Act rather than removed, pursuant to his request, under s 198(1). This is true, but neutral as to whether or not the Department had a “system” for dealing with requests for return. The point was also made that Ms Sullivan’s email gives no explanation as to why no steps had been taken to return the appellant to PNG prior to 16 February 2021. This is also true, although why Ms Sullivan would be expected to set out that explanation in an email to a subordinate (who was probably more familiar with the case) was not explained. The absence of such an explanation does not advance the case of either party.

49    Sixthly, the appellant criticised the primary judge’s conclusion (at [140]) that the absence of any action to remove the appellant prior to 16 February 2021 was not proof of the lack of a system. Her Honour observed there that there was no evidence of a “policy not to return medical detainees” and observed that the “better inference from the evidence” was that no steps were taken because of difficulties caused by the COVID-19 pandemic. The appellant submits that there was “no evidential basis” for the latter of these “findings” and it had not been pleaded.

50    By itself, the lack of action to implement the appellant’s request did not prove the absence of a system, although it might have assisted the drawing of an inference to that effect. The lack of action was at least as likely to have resulted from some other factor, such as a decision (for whatever reason) not to effect returns to PNG or a simple mistake. The primary judge therefore did not err in rejecting the submission that the lack of action proved the absence of a system. In coming to this view her Honour observed as a matter of inference that a more likely explanation for the Department’s inaction (ie, more likely than the lack of a system) was that difficulties were caused by the COVID-19 pandemic. An inference from surrounding circumstances does not require direct evidence. The inference suggested by her Honour was not implausible: it was an agreed fact that a state of emergency had been declared in PNG in March 2020, and it is widely known that restrictions imposed by governments seeking to limit transmission of the virus disrupted the ordinary flow of travel and government business in many ways. Her Honour listed at [188] several specific steps taken by the PNG government which would at least have complicated, if not prevented, the return of the appellant to that country during parts of the period from January 2020 to February 2021. In any event, the inference was not essential to her Honour’s conclusion.

51    Seventhly, the appellant submitted that the primary judge erred by reasoning that the onus on the respondents to lead evidence of the existence of a system was “inverted by Briginshaw principles”. This submission was not developed orally.

52    At [115] the primary judge referred to the well-known line of authority establishing that, where a matter is particularly within the knowledge of the respondent, an applicant may only need to adduce “comparatively slight evidence” in order to satisfy the onus of proof: in such cases, once there is some evidence to support the applicant’s claim, that evidence may be accepted unless effectively contradicted by evidence from the respondent (see, eg, Hampton Court Ltd v Crooks (1957) 97 CLR 367 at 371–372 (Dixon J) (Hampton Court); Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 65 (ER 970) (Lord Mansfield CJ); CQR17 v Minister for Immigration and Border Protection [2019] FCAFC 61; 269 FCR 367 at [32]–[33] (Jagot J)). Her Honour accepted that the existence of any system for managing return to RPCs was a matter peculiarly within the Department’s knowledge, but noted that a complexity arose because the evidence had all been adduced by the appellant. This was because the respondents had made a late decision not to read several affidavits deposed by departmental officers and the appellant had responded by reading some of those affidavits himself: those affidavits were now the appellant’s evidence.

53    Later in her reasons, the primary judge noted what she described as the seriousness of the allegation made by the appellant and referred to s 140(2) of the Evidence Act 1995 (Cth), which aligns with well-known statements concerning the civil onus of proof in cases such as Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J). Her Honour regarded the allegation of failure to establish a system as a grave one in the sense that it would place the respondents in breach of statutory obligations under s 198 of the Act (at [134]) and, seemingly for that reason, inherently improbable (at [137]).

54    In making these observations, the primary judge was not inverting principle. The statements in Hampton Court and other cases concerning the parties’ respective capacities to adduce evidence do not provide an exception from the usual principles as to where the onus of proof lies. They concern the weighing of evidence. Here, the onus always lay on the appellant; and the degree of persuasion required to meet that onus was necessarily affected by the principles embodied in s 140(2). Thus, when Dixon CJ said in Hampton Court that “slight evidence may be enough”, his Honour was not excluding the general rule that what is or is not “enough” is affected by the nature of the allegation sought to be proved.

55    The appellant had no inside knowledge of the Department’s internal workings and we have not been taken to anything filed by him that was probative of his allegation that the respondents had failed to establish a system. He could only seek to draw that inference from the lack of any concrete action in his own case. The respondents, evidently alive to this, decided not to read several of the affidavits they had filed. The appellant was left to read the affidavits himself and try to tease out of their annexures something supportive of his allegation.

56    We do not consider that this course of events affected the application of the principle drawn from Hampton Court in any significant way. The appellant was stuck with what the respondents had filed and, if there was relevant evidence other than what the respondents had chosen to file, he was not in a position to adduce it. However, unless he adduced something from which the absence of any system could be inferred, the principle in Hampton Court would not assist: there would be no case requiring contradiction by the respondents.

57    The primary judge’s conclusion at [117], part of which we have set out above, was expressed in the following way.

Nonetheless, even assuming in the applicant’s favour that he only has a slight evidential burden, the totality of the evidence establishes that the respondents did have a system to administer requests for return to regional processing countries during the relevant period. As such, the applicant has not discharged his burden, slight though it may be, to prove the non-existence of any returns system.

58    Her Honour thus proceeded on the basis that “slight” evidence would be enough, in the absence of evidence from the respondents, but found that this threshold had not been reached. There was no error in approaching the issue in this way. Further, for the reasons set out above, no error has been identified in her Honour’s analysis of the evidence.

59    Ground 2 is therefore rejected.

Causation (ground 3)

60    Questions of causation do not arise because, for reasons outlined above, the common law does not impose a duty in the terms pleaded. Further, if such a duty did exist, causation of loss (like breach) would be built in. Put simply, the pleaded duty is to limit the appellant’s detention to a certain period; if that period expired without his detention ending, the duty was breached; and the harm relied on (ie, continued detention) is the corollary of that breach. If the pleaded duty were accepted as existing, therefore, there would be no need to engage in any analysis of causation.

61    Any discussion of causation is therefore hypothetical at three levels. It is necessary to assume that a different duty of care had been pleaded; that the respondents had been found to owe that duty to the appellant; and that some aspect of the respondents’ actions (or failure to act) between 21 January 2020 and 16 February 2021 was shown to involve a want of reasonable care so as to breach the duty.

62    We also note that the period of “loss of freedom”, which the appellant alleged to be part of the “foreseeable harm” caused by the respondents’ breaches of duty (at 2FASOC [24]), was from 21 January 2020 to 17 June 2021. As the primary judge observed at [192], no shorter period was pleaded in the alternative. This, too, is problematic. The appellant’s request for removal was made on 21 January 2020. Even with the most energetic pursuit of the duty to remove the appellant, it is hard to imagine removal being achieved until at least some days or weeks later. However the relevant duty of care is framed, therefore, it is hard to see how a breach of the duty could be held to be the cause of the harm that was pleaded.

63    We will therefore confine ourselves to some relatively brief observations on the particular complaint that is made about the primary judge’s reasoning.

64    Ground 3 in the amended notice of appeal alleges that the primary judge erred “in finding that the Papua New Guinea border restrictions in response to the Covid pandemic after 20 March 2020 broke the factual chain of causation as to abrogate the respondents’ liability for the applicant’s loss of freedom and consequent mental distress and anxiety”.

65    The primary judge addressed the issue of causation after considering the arguments as to what was the governing law (issue (8) in the agreed list) and concluding that the question of causation was governed by the Wrongs Act. That conclusion is not challenged in the appeal. Section 51(1) of the Wrongs Act provides:

A determination that negligence caused particular harm comprises the following elements—

(a)     that the negligence was a necessary condition of the occurrence of the harm (factual causation); and

(b)     that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).

(Emphasis in original.)

66    A determination that the first element is made out involves nothing more than the application of the “but for” test, ie a determination on the balance of probabilities that the harm that actually occurred would not have occurred but for the negligence of the respondent: Wallace v Kam [2013] HCA 19; 250 CLR 375 (Wallace) at [16] (French CJ, Crennan, Kiefel, Gageler and Keane JJ). In a novel case, the second element requires a court “explicitly to consider and to explain in terms of legal policy whether or not, and if so why, responsibility for the harm should be imposed on the negligent party”: Wallace at [23]. Their Honours went on to say in Wallace at [24]:

A limiting principle of the common law is that the scope of liability in negligence normally does not extend beyond liability for the occurrence of such harm the risk of which it was the duty of the negligent party to exercise reasonable care and skill to avoid. Thus, liability for breach of a duty to exercise reasonable care and skill to avoid foreseeable harm does not extend beyond harm that was foreseeable at the time of breach.

(Footnotes omitted.).

67    Under the Wrongs Act, a risk of harm is foreseeable if the alleged tortfeasor knew or ought to have known of it at the time precautions against it should have been taken: Wrongs Act, s 48.

68    On the question of “factual causation”, the primary judge first considered and rejected an attempt by the appellant to frame the question as one of the “loss of a chance” to be returned to PNG (at [178]). Her Honour then said, at [180]:

The second form of causation pleaded by the applicant appears to engage with the “but for” test. However, I consider that there is considerable force in the respondents’ submission that the applicant cannot establish, on the balance of probabilities, that if the Department had commenced taking steps to remove the applicant on 21 January 2020, he would have been removed from Australia to PNG prior to the PNG Government introducing border restrictions on 20 March 2020. If one accepts, notwithstanding the evidential difficulties, that the applicant would have been removed to PNG prior to 20 March 2020 then, applying the rudimentary “but for” test, it would be open to find that, “but for” the alleged breach of the respondents, the applicant would not have been detained in Australia relevantly from the date of any such removal to 17 June 2021. The critical issue that the applicant faces is in satisfying me that it is appropriate for the scope of the respondents’ liability to extend to the harm so caused.

(Emphasis in original.)

69    It is apparent from her Honour’s recitation of the parties’ submissions earlier in the reasons that one focus of the debate had been whether, had proper efforts been made, it was probable that the appellant would have been returned to PNG before the imposition of border restrictions in response to the COVID-19 pandemic. This explains the reference in [180] to 20 March 2020 (the date the PNG government issued a notice prohibiting entry into the territory except for certain categories of individuals). In short, therefore, if proper efforts were likely to have led to removal to PNG before that date, the detention of the appellant from the date of such removal until his actual release (17 June 2021) could be seen as a form of harm that would not have occurred but for the alleged breach of duty. While expressing scepticism, the primary judge did not definitively reject the argument that the taking of proper steps would have secured the appellant’s return to PNG before the notice prohibiting entry into the territory was issued. The “critical issue” in her Honour’s view, arose at the second stage of the analysis required by s 51(1).

70    It was at the second (scope of liability) stage, which involves a normative aspect, that the primary judge considered whether the border restrictions imposed by PNG relevantly broke the “chain of causation”. Her Honour concluded that the “chain” had been “broken” in this sense (at [188]). She made the following points in this regard.

(a)    The border restrictions imposed in response to COVID-19 limited the respondents’ capacity to remove the appellant from Australia after 20 March 2020 (at [188]). If the respondents had complied with the alleged duty after 20 March 2020, the appellant would have been removed (and would not have been detained until 17 June 2021) “but for the COVID-19 pandemic and border restrictions” (at [190]).

(b)    “As the respondents submit, I do not consider that the COVID-19 pandemic was reasonably foreseeable, nor were the unprecedented events which arose in response to it” (at [190]).

(c)    The type of harm for which responsibility was sought to be engaged was ongoing; however, after 20 March 2020, the respondents were not in a position to remedy any breach of duty. “As a matter of legal policy, I do not consider that the respondents should be held responsible for this type of harm in those circumstances” (at [191]).

(d)    The appellant pleaded the harm he had suffered as including detention from 21 January 2020 to 17 June 2021. He had not pleaded detention from the date of potential removal to 20 March 2020 as an alternative form of that damage. Her Honour therefore did not consider any such shorter period for the purposes of the causation analysis (at [192]).

71    The question of foreseeability (point (b) above) lies at the heart of this analysis. If the imposition of border restrictions arising from the COVID-19 pandemic by PNG was reasonably foreseeable as at (or soon after) 21 January 2020, and the taking of reasonable care could have achieved the return of the appellant to PNG before such restrictions were imposed, it is difficult to see why (if they owed a relevant duty of care and breached that duty) the respondents should not be held liable for the harm that flowed from the failure to return him before 20 March 2020 and the inability to return him thereafter. On the other hand, if it was not reasonably foreseeable, we see no error in the other steps in her Honour’s reasoning.

72    The evidence adduced by the appellant included extracts from COVID-19 Health Situation Reports, issued jointly by the PNG National Department of Health and the World Health Organisation between 27 January 2020 and 5 April 2021. These are the kinds of documents the respondents should have been reviewing if they were turning their minds to the task of removing the appellant to PNG in the days and weeks following his arrest, and we infer that the information contained in them would have come to light if relevant inquiries had been made.

73    The report dated 27 January 2020 recorded that PNG had had no reported cases of COVID-19 but was on high alert and was considered to be at high risk of importing the disease because of “limited capacity and resources”. Similar observations were made on 29 January 2020. The report of this date also referred to the introduction of measures for screening passengers at the airport. The 29 January report also recorded the establishment of a “National Emergency Operations Center” and work on a preparedness and response plan. It was thus evident by late January 2020 that PNG health authorities were concerned about COVID-19 and about the capacity of the country’s health system to deal with a significant outbreak. They were also noting the spread of the virus from its point of origin in China to 10 other countries (as at 27 January 2020) within a relatively short time. These factors made the imposition of restrictions on travel into PNG at least a possibility.

74    However, the chance of such restrictions being imposed as at late January 2020, and how rigorous those restrictions were may have been, are difficult to assess. Hindsight must be excluded from the analysis as much as possible. As at 28 January 2020 only around 4,600 cases had been reported globally of which only 56 were outside China. According to the report of 29 January 2020, it was regarded as clear that human-to-human transmission was occurring but the full extent and the means of such transmission was not yet known. Clearly, the situation was changing fairly rapidly: by 25 February 2020, for example, over 79,000 cases had been confirmed globally including around 2,000 in 29 different countries outside China. On 14 February 2020, the PNG government had issued a declaration denying entry to all persons who had been in designated regions of mainland China within the previous 14 days. Even then, however, there was no reference to consideration of broader entry restrictions. Measures preventing entry by a person coming from Australia (who, as a recognised refugee, presumably had a right to return to PNG) might still have been regarded as unlikely. Additionally, even if stringent restrictions on travel from Australia to PNG were reasonably foreseeable by this time, it is doubtful that the necessary arrangements to return the appellant to PNG could have been made and carried out before the issuing of the notice prohibiting entry into the territory roughly a month later.

75    In our view, the appellant did not adduce evidence sufficient to establish that the imposition of border restrictions by PNG on and from 20 March 2020 was reasonably foreseeable at a time when the exercise of reasonable care by the respondents could have achieved his return to PNG before those restrictions came into effect. On the evidence, at the time when a duty of care was alleged to have arisen, compliance with which could have avoided lengthy further detention, the potential consequences of the COVID-19 virus over the coming months were very unclear. The primary judge therefore did not err in finding that the imposition of restrictions was not reasonably foreseeable for the purposes of the reasoning summarised above.

76    Even if that finding were erroneous, the result would be that the issue left open by the primary judge (“factual causation”) required determination. No ground of appeal addressed that issue. For this reason, also, ground 3 does not assist the appellant.

Damages (ground 4)

77    The primary judge did not assess damages, and the allegation that her Honour erred in making such an assessment (ground 4) is therefore misplaced. The issue did not arise; and her Honour did not go further than to make some observations about the appellant’s arguments and indicate a range in which damages would likely have been assessed. To attempt to arrive at a specific figure would have been an artificial exercise in circumstances where the pleaded duty of care was not capable of being recognised and her Honour had not made favourable findings, even on a hypothetical basis, as to breach and causation.

78    The same is true of the appeal. Like the primary judge, we are not persuaded that the taking of reasonable care by the respondents between January 2020 and February 2021 would have led to the appellant being returned to PNG any earlier than the flight that was eventually booked for him on 21 June 2021 (which did not go ahead for reasons unrelated to any default on the part of the respondents). There is no particular date of return to PNG that suggests itself as likely in the event that we are wrong on the issues of breach and causation as well as the existence of the pleaded duty of care. To assess damages on the footing that our conclusions on these issues are wrong would therefore involve an imaginative exercise on several levels with no clear guideposts. Any such assessment would almost certainly need to be carried out afresh in the event that our judgment is set aside. To embark on such an assessment would not be a useful exercise.

Disposition

79    The appeal must be dismissed.

80    The appellant sought to be heard on the question of costs in the event that he was unsuccessful in the appeal. Our orders will therefore provide for the parties to file submissions (and any relevant evidence) on costs and for the issue to be decided on the papers.

Associate:

Dated:    22 April 2025

REASONS FOR JUDGMENT

THAWLEY J:

81    Mr Hassan lived in Papua New Guinea (PNG) from 28 October 2013 until 18 December 2019 when he was removed to Australia under s 198B of the Migration Act to receive urgent medical treatment. PNG was a “regional processing country” under the regional processing regime established by the Migration Act 1958 (Cth). Mr Hassan was held in immigration detention in Australia for 568 days, until 8 July 2021. On two occasions, 21 January and 2 June 2020, he requested that he be returned to PNG. By reason of s 198(1) of the Migration Act, Mr Hassan’s requests triggered a statutory obligation that he be removed to PNG “as soon as reasonably practicable” – see: Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; 261 CLR 582 at [16]. No steps were taken until 16 February 2021 to give effect to Mr Hassan’s request.

82    On 20 May 2024, a judge of this Court dismissed Mr Hassan’s claim for damages for negligence in relation to his detention, which he had brought against the Commonwealth (and Commonwealth officers), the Minister for Home Affairs, the Minister for Immigration Citizenship and Multicultural Affairs and the Secretary of the Department of Home Affairs: Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527 (J). Relevantly, Mr Hassan had sought:

(a)    a declaration that the respondents owed him a duty of care “to limit the duration of [his] detention to that required for the removal of [him] to PNG as soon as reasonably practicable” after his written requests for such removal made on 21 January 2020 and 2 June 2020: Fifth Further Amended Originating Application at [10] (5FAOA);

(b)    a declaration that the respondents’ failure to establish a system for the administration of requests of return to regional processing countries by those brought to Australia for temporary purposes under s 198B of the Migration Act, or to take steps to remove the applicant to PNG from either of his requests for return of 22 January 2020 or 2 June 2020 until 16 February 2021 was in breach of the respondents’ duty of care to limit the applicant’s detention: 5FAOA at [11];

(c)    damages for the breaches of the duty of care, including “aggravated and exemplary damages for the length and remoteness of the extended detention and the resulting mental anguish and anxiety suffered”: 5FAOA at [9].

83    The central issue at trial (delineated by a Second Further Amended Statement of Claim (2FASOC)) was Mr Hassan’s claim in negligence. Mr Hassan alleged that “the respondents were under a duty of care to limit the duration of [Mr Hassan’s] detention to that required for the purpose of removal … to PNG as soon as reasonably practicable from the time of the … written requests of 22 January 2020 and 2 June 2020 …”: 2FASOC at [22].

84    The Commonwealth denied the existence of a such a duty of care, but it was not in dispute that the Commonwealth was vicariously liable for any negligent acts or omissions of its officers in relation to Mr Hassan’s detention: 2FASOC [4] and [16]; Defence [4.1] and [16.1].

85    It was common ground that there was no available cause of action for breach of a statutory duty based on s 198(1). Counsel accepted that the form of the pleaded claim in negligence was the same as the form of a claim for breach of statutory duty. Counsel for Mr Hassan submitted that the substance of what was pleaded was different from a claim for breach of statutory duty because a cause of action for breach of statutory duty was concerned with public duty whereas a claim in negligence related to a private duty: T15.35–8.

86    On appeal as before the trial judge, Counsel would not countenance that the claim in negligence might be understood as alleging that the respondents had breached a duty to take reasonable care. It was not put, for example, that the respondents had a duty to take reasonable care to avoid unnecessary prolongation of Mr Hassan’s detention or to take reasonable care in implementing Mr Hassan’s request for removal as soon as reasonably practicable. The case advanced was that the respondents had a duty to achieve an outcome, not a duty to take reasonable care.

87    Casting the duty in this way meant that breach would be established by proving that the outcome was not achieved, namely that detention was not limited to that required for Mr Hassan’s removal to PNG as soon as reasonably practicable. The respondents accepted at trial that no steps had been taken to remove Mr Hassan to PNG before 16 February 2021. The respondents did not seek to justify its acts or omission in this respect by evidence, because a failure to take reasonable care was not an issue.

88    Mr Hassan alleged that no system had been established to administer requests for return. That allegation was of questionable relevance in circumstances where there was no allegation of a duty to take reasonable care. The allegation was disproved by the fact that Mr Hassan’s requests received attention, including in the form of action being taken such as requesting the “usual preliminary health and legal barrier checks” the day after Mr Hassan’s first request: AB577; 579. Whether Mr Hassan’s requests received proper attention, or whether the system was adequate, were not in issue. The pleaded case was confined to a failure to establish a system at all and no application was made to depart from that case.

89    The primary judge’s first reason for dismissing Mr Hassan’s claim was that the pleaded duty was not one that the common law would impose: J[88]–[92]. Her Honour was correct in this respect. The tort of negligence is concerned with duties of care. Duties of care are obligations of a particular scope, which may be more or less expansive depending on the relationship in question, but – whatever their scope – “all duties of care are to be discharged by the exercise of reasonable care and do not impose a more stringent or onerous burden”: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at [43]; Sydney Water Corporation v Turano [2009] HCA 42; 239 CLR 51 at [47]–[48]. A duty to achieve an outcome is not a duty of (or to take) reasonable care.

90    Mr Hassan could not succeed on the duty advanced by him. It follows that the appeal must be dismissed. It would not be appropriate to address whether a cause of action for breach of a duty to take reasonable care was capable of succeeding on the present facts given that such a question was not an issue at trial and the evidence was not directed to the issues which would arise if such a duty had been advanced.

91    I agree with the orders proposed by Katzmann and Kennett JJ.

Associate:

Dated:    22 April 2025

SCHEDULE OF PARTIES