FEDERAL COURT OF AUSTRALIA

A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship [2011] FCA 1497

THE COURT ORDERS THAT:

1.    The Minister for Immigration and Citizenship be joined as the third respondent.

2.    Leave to the applicant, through his litigation guardian to file and serve an Amended Originating Application in terms of the document which I now initial and sign today.

3.    In relation to Order 2, dispense with compliance with the Federal Court Rules for further service of the Amended Originating application.

4.    The application for interim interlocutory orders be refused.

5.    The application be adjourned to 9:00 am on 22 December 2011, including any further application for interlocutory relief.

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

REASONS FOR JUDGMENT

1    The applicant brings this application by his litigation representative appointed by the Court on an interim basis and reserving to the Minister for Immigration and Citizenship (the Minister) the right to apply to discharge or vary that order.

2    The applicant is a 17 year old male from Kuwait, born on 1 January 1994. He arrived at Christmas Island as an unaccompanied minor in early 2010, and promptly applied for a protection visa under the Migration Act 1958 (Cth) (the Act). His application was partly successful. He was recognised as having refugee status by reason of a well-founded fear of persecution for a Convention stipulated reason in December 2010, but he has not yet been issued with a protection visa under the Act. At the time of the application, he was still undergoing a security assessment. That is one of the criteria for eligibility for a protection visa: Sch 2, Subclass 866 Protection Visa, cl 866.225 and Public Interest Criterion 4002 that he has not been assessed by the Australian Security Intelligence Organisation (ASIO) to be directly or indirectly a risk to security, within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (ASIO Act). Consequently, he remains in immigration detention. He was, until yesterday, awaiting that assessment.

3    Between May and August 2011, and again from 29 November 2011, the applicant has been in the Melbourne Immigration Transit Accommodation. Between August 2011 and 29 November 2011, he was located at the Darwin Airport Lodge facility. From the respondents’ viewpoint, the transfer from Christmas Island and between Melbourne and Darwin have been motivated by the best interests of the applicant.

4    The evidence indicates that the applicant has become quite depressed, at least since July 2011, as a consequence of being kept in immigration detention notwithstanding that he has been recognised as having refugee status. Other young men who were with him when he arrived in Australia have apparently been either granted protection visas or released into the community under Residence Determinations: s 197AB of the Act. There have been a number of reported incidents of self-harm of the applicant, including inflicting cuts on himself, sewing his lips together and such things. On a number of occasions, he has unsuccessfully attempted to hang himself.

5    It appears the applicant’s condition has worsened in the last month or so. Professor John Jureidini, a psychiatrist, has provided reports dated 24 November 2011 and 2 December 2011. Those who have been dealing with him from the Asylum Seeker Resource Centre have observed a significant deterioration in his mental state and are very concerned for his ongoing safety.

6    Professor Jureidini’s views about the applicant’s medical condition have two elements. One is that he is at grave risk of self-harm, and the second is that whilst he remains in a detention centre (with the increased sense of social isolation and fear and frustration) his psychological difficulties are compounding and worsening. He is developing a “given up” state, requiring urgent addressing. He has recommended a form of immigration detention which involves treatment “in a supportive, preferably family based environment”.

7    It is important to note that the present interlocutory application is not for a Residence Determination by the Minister under Subdiv B of Pt 2 Div 7 of the Act. It is not the subject of a complaint that the Minister has not exercised, but should exercise, the power available under s 157AB of the Act. It is for an order that the respondents or one of them place him in a form of immigration detention which is not likely to cause him further detriment to his health, or continue to expose him to the risk of self harm.

8    The proposed order proposes to strike a very difficult balance between the physical safety of the applicant and his mental health. The order now sought on an interim basis is that until further order, the respondents be restrained by themselves, their servants or agents or howsoever otherwise from keeping the applicant in a place of immigration detention which is inconsistent with the recommendations contained in the medical reports of Professor John Jureidini as shall be reviewed from time to time by him or some other suitably qualified medical practitioner.

9    For the sake of clarity, it is sought that the Melbourne Immigration Transit Accommodation and the Darwin Airport Lodge are not currently suitable places of detention for the purpose of that order.

10    It is clear that, although expressed in prohibitory terms, the order sought would operate in a mandatory way. It would require the respondents or one of them to place the applicant in a form of immigration detention which is, in essence, residential rather than a more formal structured immigration detention centre.

11    If the applicant is placed in a form of immigration detention which is “residential”, it is not presently clear how the present supervision being given to him to prevent self harm can continue to be provided, or whether the risk of self-harm will be so alleviated by a changed environment with ongoing remedial treatment as to not require that degree of supervision. At least, that was one concern to be addressed at the time of the application. The Court also had concerns that it was not clear that there were forms of immigration detention which would satisfy Professor Jureidini’s requirements. There is scope for the Minister to declare places of immigration detention under cl (v) of the definition of “immigration detention” in s 5 of the Act, but there was no evidence that that power had been exercised. Moreover, the Court had concerns that the proposed order, in any event, was somewhat imprecise and that it would be preferable, if an order were to be made, to more clearly direct the respondents about what they are required to do.

12    Those two concerns were addressed firstly by the applicant nominating particular residential accommodation in Melbourne, and the respondents accepting firstly that the Minister had determined a number of residential-style accommodations as places of immigration detention under cl (v) of the definition, and secondly that the nominated residential accommodation was one of those places.

13    However, there is a further complication. On 14 December 2011, the applicant was informed that ASIO had apparently positively determined that he is a risk to security. The Court has not been provided with any detail of that assessment. It means that the public interest criterion referred to is not satisfied. I assume that means that the protection visa application will routinely now be refused.

14    The applicant will then be a minor, in immigration detention, indefinitely and until he can be deported. That may be a very long time. The precise material consequences of this adverse detention have not yet been addressed by Dr Jureidini.

15    Under the Immigration (Guardian of Children) Act 1946 (Cth), the Minister is the applicant’s legal guardian until he turns the age of 18 years. The Minister’s responsibilities as guardian are delegated to designated officers. There is now an affidavit from the designated officer responsible to fulfil the role of guardian for the applicant that he is fully aware of the present concerns about the applicant’s health. For the purposes of the order which I am asked to make, I appreciate that there is some uncertainty as to whether the appropriate order should be made against the Secretary or the Commonwealth: see Secretary, Department of Immigration & Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83. Counsel for the three respondents has not sought to take any technical points about that. However the outcome of the application is expressed, I will not seek to refine that issue in a formal legal sense.

16    What is apparent to me on the material before me is that the Secretary or the Commonwealth and, in a separate capacity, the Minister, each owes to the applicant a duty of care. In the case of the Minister, because the Minister is the legal guardian of the applicant, bearing in mind his age, and in the case of the Commonwealth or the Secretary because they are responsible for the provision of immigration detention to him.

17    Secondly, in my view, there is an arguable case that the applicant is seriously at risk of significant personal harm in the present form of his immigration detention. And that risk is a risk which has existed, is and has been known, at least for some months, from about August of 2011. It is referred to in the report of Dr Assadi of 17 August 2011 held on the applicant’s file. Subsequent documents in that file tend to confirm that the applicant has self-harmed significantly on a number of occasions in the last several months, including attempts to kill himself. I am also satisfied that there is a serious question to be tried, that at least at the present time and for the last week or two, there has been a breach of that duty on the part of the Secretary or the Commonwealth.

18    I am presently unclear as to the extent to which the information relating to the applicant is conveyed to the Minister by his delegate, so I am not so persuaded that the delegate is in breach of his duty as guardian, but the affidavit which has been provided indicates that the delegate is an employee of the Department of Immigration and Citizenship as its Director of Detention Operations in Victoria. At least recently, he has had access to information concerning the applicant’s condition, and the threat which he poses to himself. So I am prepared to take the step that each of the respondents is, arguably, in breach of their respective duty of care. That does not amount to a finding adverse to any of those persons or bodies, but simply that there is an arguable case on that matter. I may observe, however, that at least until very recently, those responsible have been somewhat insensitive to protecting the applicant from that risk of self harm, more probably that for some reason they have not appreciated the gravity of the risk despite Dr Assadi’s report or Professor Jureidini’s reports. A further explanation may be that, as a matter of resources, until very recently the respondents have been unable to take steps to fully protect the applicant from self harm and have not understood the need for urgent psychiatric treatment. It is unhelpful and unnecessary to dwell on those matters now. It is clear that each of the respondents is now well aware of the applicant’s circumstances and is exploring very actively the best way to address them.

19    The next step is to consider whether some interlocutory order should be made in the present circumstances, and if so, in what terms.

20    I am mindful of the terms of the interlocutory relief as expressed in the Amended Originating Application. Even as now refined, they present some difficulty because of their generality. It is very difficult for the applicant and his legal representatives in circumstances such as the present to be more precise, but as the application is as to the form of immigration detention as defined in s 5 of the Act and not in relation to any Residence Determination under s 197AB of the Act, it is necessary for the Court, if it is to make an order in the exercise of its discretion, to be satisfied that the order is one which can lawfully be complied with and which is appropriate.

21    As a result of the additional information which has now been provided, I am satisfied that in Victoria, where the applicant now is, there are some places approved by the Minister in writing which can constitute immigration detention within subclause (v) of the definition of “immigration detention” within the Act and which would provide more of a residential element to the applicant than the present style of his accommodation.

22    The question is whether I should make some specific order about that now. In making a decision on that I have also to bear in mind that the medical evidence of Professor Jureidini was provided in the context of the applicant then being in a intermediate stage of the process of securing a protection visa because he had been accepted as being a refugee as defined in the Convention but he had also to satisfy the public interest criterion 4002 as one of the criteria for eligibility for a protection visa. At the time of the application, the question of whether he did satisfy that criterion had not been determined. That was because there had been no assessment by the ASIO as to whether he was directly or indirectly a risk to security, as that expression is defined in the ASIO Act. That process was still ongoing.

23    One of the things which Professor Jureidini referred to was the applicant’s distress at being treated differently from others of about the same age who had also become categorised as refugees upon their application for a protection visa and had either then been granted a protection visa or had been placed in residential accommodation under a Residence Determination, whereas he had not. It is not presently clear to me what is the consequence of the applicant now having been told that he has been assessed by ASIO as a risk to security. That is, he has been told that he would not be eligible for a protection visa. The formal decision has not yet been made. I note that in the correspondence or other material before me, once that formal decision was made those representing him intend to pursue such avenues as available to set aside that decision, but that is for another time.

24    The point is that it is not clear what the consequence to his mental state will be by being given, at this stage at least, a definite rejection of his protection visa.

25    Consequently, I am concerned in exercising the discretion whether to make an order along the lines sought, about the extent to which the applicant’s mental state may be worsened, or his propensity to self-harm worsened, by knowing definitely that he is not, at least at present, to be granted a protection visa. It is not clear whether the less supervised style of accommodation in what is apparently residential accommodation controlled or approved by the Department would expose him to the opportunity to self-harm at a time when he is much more disposed to self-harm than he may have been previously. In my view, at present, there is not sufficient information to form a judgment about that.

26    Thirdly, an observation made with some concern and regret, at this point the basis for the ASIO assessment is not known, quite apart from the applicant’s own personal interests. I do not know whether that style of immigration detention which is represented by apparently residential accommodation under subclause (v) of the definition would be appropriate, having regard to the security assessment. That is a matter of public interest and not a matter of the interest to the applicant. I say that with some regret because I do not have any idea why the assessment has been made by ASIO, so it is not possible to know whether the security concerns would be preserved within that style of residential accommodation. Consequently, it is not possible to balance properly the public interest element of that determination apparently made by officers of ASIO in relation to a 17-year-old person, against those other considerations.

27    However, principally, for the reasons that I have expressed about the welfare of the applicant, if he were to be placed in residential accommodation by order of the Court at present without a more updated medical report, I am not prepared at this stage to make the order which is sought, even if it were specifically that he be placed in immigration detention in the identified establishment operated under the aegis of the Department, namely St Alban’s Community Detention House operated by the Hotham Mission at 2 Elm Street, South Melbourne, or some similar accommodation. I remain concerned that with the rejection of his visa, although he may be put in a more liberal and suitable environment in one sense for his treatment, in circumstances where he is very prone to self-harm and in circumstances where that propensity which he clearly has might be given effect to, that accommodation may be too unsafe for him.

28    For that primary reason, I therefore decline to make the interlocutory order which is sought at the present time.

29    Rather than simply refuse the interlocutory application with no further date, I propose to decline to make an order at present but to stand the matter over to a time next week to review it to see whether further information is available which may either have enabled one of the respondents to procure alternative accommodation for the applicant or to receive further information, either through Professor Jureidini or otherwise, as to whether providing him with such accommodation might not, as I otherwise fear, expose him to such grave risk of self harm as is inappropriate..

30    At an appropriate time I will also consider whether this matter should be referred to the Victorian Registry of the Court, but at present I will not take that step.

Associate:

Dated:    22 December 2011