FEDERAL COURT OF AUSTRALIA

SBEG v Secretary, Department of Immigration and Citizenship (No 2)

[2012] FCA 569

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    The parties be heard as to costs and any other orders.

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

REASONS FOR JUDGMENT

Introduction

1    This is a claim in negligence by the applicant against the Secretary of the Department of Immigration and Citizenship, the Commonwealth of Australia and the Minister for Immigration and Citizenship. The applicant is an unlawful non-citizen who has been and is being detained by the Commonwealth pursuant to the provisions of the Migration Act 1958 (Cth) (“the Act”). He is also a person who has been granted refugee status under the provisions of the Act, but has not been and cannot be granted a Protection visa because he is the subject of an adverse security assessment under the provisions of the Australian Security Intelligence Organisation Act 1979 (Cth).

2    The applicant claims two forms of relief. First, he claims a permanent injunction with respect to his mental health needs and the circumstances and place of his detention. In this respect, he claims that the respondents have been and continue to be in breach of a duty of care they owe to him and that, in the circumstances, the following order should be made:

A permanent injunction to restrain the Respondents from continuing to commit a tort by their neglect of the mental health needs of the Applicant with respect to the places and circumstances of his detention.

3    Secondly, the applicant claims damages against the respondents for loss or damage he has sustained and continues to sustain as a result (so he alleges) of the respondents’ breaches of the duty of care they owe to him. On 9 January 2012, a judge of this Court made an order which had the effect of postponing to a later date the hearing and determination of the amount of the applicant’s damages, should it be decided that he is entitled to damages.

4    I start with a brief statement of the key events.

The Key Events

5    The applicant is a young man. His age is unknown. Until shortly before I heard closing oral submissions, the applicant presented his case on the basis that he was born on 31 December 1993, and therefore a minor throughout 2011.

6    The applicant and his family left Kuwait, where they were not citizens, and travelled through Syria, flew to Malaysia and then travelled by boat to Indonesia. In December 2010, and without his parents’ knowledge, the applicant travelled by boat from Indonesia to Australia. When the applicant arrived in Australia he was detained on Christmas Island.

7    On 15 May 2011 the applicant was taken to the Melbourne Immigration Transit Accommodation facility (“MITA”) and he remained in immigration detention at that facility until 21 August 2011. He was then taken to the Darwin Airport Lodge facility and he was detained there from 22 August 2011 to 29 November 2011. On the latter date, he was taken back to MITA where he remained until 20 January 2012. On 20 January 2012 he was brought to the Adelaide Immigration Transit Accommodation facility for the purposes of the trial and he remained at that facility during the course of the trial.

8    By letter dated 18 April 2011 the Department of Immigration and Citizenship (“the Department”) advised the applicant that his request for Refugee Status Assessment had been granted and that he had been found to be a refugee as defined in the Refugees Convention. However, he was also advised that that did not mean he would be granted a visa. He was advised that his eligibility for a visa was subject to health, identity, security and character checking processes. As it happened, the applicant did not pass the security checks. He was advised in December 2011 that he was the subject of an adverse security assessment under s 37 of the Australian Security Intelligence Organisation Act 1979 (Cth).

9    Since his arrival in Australia the applicant has been detained by virtue of the provisions of s 189 of the Act. The duration of his detention is governed by s 196 of the Act. As an unlawful non-citizen detained under s 189 of the Act, he is to be detained in immigration detention until one of the events in subs 196(1) occurs and he may not be released, even by a Court, unless he is granted a visa (subs 196(3)). The Minister has the power under s 197AB of the Act to make a residence determination. This enables a person to reside at a specified place instead of being detained at a place covered by the definition of “immigration detention” in subs 5(1) of the Act. From time to time, residence pursuant to a residence determination was referred to in the evidence as involving community detention or detention in the community. By reason of s 197AE of the Act, the Minister does not have a duty to consider the exercise of the power in s 197AB to make a residence determination. The Minister has issued instructions or guidelines concerning the exercise of the power in s 197AB, and those instructions or guidelines were tendered in evidence. The applicant does not seek an order in this case that will result in a residence determination. Nevertheless, the scope and nature of the power in s 197AB of the Act will be relevant to the question of whether the Court is able to make the injunctive order sought by the applicant and will be considered later in these reasons.

10    The evidence establishes that the Minister viewed the applicant’s adverse security assessment on 30 December 2011 and he declined to consider the exercise of the power in s 197AB of the Act in relation to the applicant.

The Witnesses

11    The applicant gave evidence through an Arabic interpreter. In addition, he called Sister Brigid Arthur, Ms Pamela Curr and Professor Jonathon Jureidini as witnesses. The respondent called Professor Paul Mullen and Mr Gregory Kelly as witnesses.

12    Sister Brigid is a Catholic nun who was appointed as the applicant’s litigation representative by order of the Court made on 15 December 2011. She was removed from that position by order of the Court made on 24 January 2012. Ms Pamela Curr is a campaign coordinator who works at the Asylum Seeker Resource Centre. Professor Jureidini is a child psychiatrist.

13    Professor Mullen is a forensic psychiatrist. He prepared a medical report jointly with a Professor James Ogloff, who is a clinical forensic psychologist. It was agreed between the parties that Professor Ogloff was not required to give evidence. Mr Kelly is a public servant employed by the Department as a First Assistant Secretary and, since 18 April 2011, he has held the position of First Assistant Secretary, Detention Operations Division. Since 19 December 2011, he has been acting in the position of Deputy Secretary, Immigration Detention Services Group.

14    I will refer to the evidence of the various witnesses during the course of these reasons. At this stage, I record the fact that I did not think that there was any reason to doubt the general credit of any of the witnesses.

15    In an appendix to his written submissions the applicant identified a number of potential witnesses the Commonwealth could have, but did not, call. The applicant did not identify the precise inferences which he said should be drawn from the Commonwealth’s “failure” to call the witnesses he identified. As it happens, the applicant’s case fails independently of whether there were potential witnesses to events described in these reasons who were not called by the Commonwealth.

The Parties and the Applicant’s Age

16    The applicant accepts that in view of information which came to light concerning his age, which I discuss below, he does not have a claim against the third respondent, the Minister for Immigration and Citizenship. The duties of the third respondent with respect to non-citizen children who arrive in Australia do not arise in this case (Immigration (Guardianship of Children) Act 1946 (Cth) ss 4AAA and 6) and the claim against the third respondent must be dismissed.

17    The claim against the first respondent, the Secretary, Department of Immigration and Citizenship, must also be dismissed. Whether a claim of the nature brought by the applicant in this case can be brought against the Secretary was considered by this Court in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour and Anor (2004) 207 ALR 83 (“Mastipour”) at 89 [35] per Lander J (with whom Finn and Selway JJ agreed) and in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Anor (2005) 143 FCR 217 (“S”).

18    It is sufficient to refer to S. In that case the applicant brought proceedings against the Secretary and the Commonwealth. Finn J said that whosoever the officer in a given case, the detaining and holding is both on behalf of the Commonwealth and by the Commonwealth. His Honour referred to the words in paragraph (b) in the definition of “immigration detention” in subs 5(1) of the Act. He said that the Commonwealth clearly owed a duty of care to those it detained or held. He said that, by contrast, the Secretary was not properly joined as a party because it could not be said that the applicants in that case were being detained or held “by, or on behalf of” the Secretary.

There is no basis upon which he can be said to be the relevant officer or that, as such, he owes a duty of care to S and M as detainees.

(At 260 [207]).

19    His Honour went on to reject an argument that the Secretary was an “officer” within the Act by reason of s 57 of the Public Service Act 1999 (Cth) (at 260 [208]).

20    In my respectful opinion, the decision of Finn J in S on this point is correct, and it follows that the claim against the first respondent must be dismissed.

21    The Commonwealth owed a duty of care to the applicant while he was being held in immigration detention: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs and Others (2004) 219 CLR 486 at 499 [21] per Gleeson CJ; at 515 [81]-[82] per Kirby J; at 542-543 [174] per Hayne J; at 559-560 [219] per Callinan J. Serco Australia Pty Limited (“Serco”) provides detention services to the Commonwealth under a contract which was tendered in evidence and became exhibit R6. International Health and Medical Services Pty Limited (“IHMS”) provides health services to the Commonwealth under a contract which was tendered in evidence and became exhibit R7.

22    In S, Finn J (at 259 [205]) said that the duty of care is a non-delegable duty of care and that meant that the Commonwealth did not discharge its duty to detainees, to use the words of Mason CJ, Deane, Dawson, Toohey and Gaudron JJ in Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 (“Burnie Port Authority”) at 550, “merely by the employment of a qualified and ostensibly competent independent contractor”. The Commonwealth accepted that the duty of care it owed to the applicant was a non-delegable duty of care and that concession would appear to be correct. It seems that while the applicant was being held in detention in any of the four places relevant in this case, the relationship between the Commonwealth and the applicant had the features identified by Mason J (as his Honour then was) in Kondis v State Transport Authority (1984) 154 CLR 672 at 686-687 and the Court in Burnie Port Authority at 551-552. Other forms of detention may raise different considerations. I note that the question whether the Commonwealth’s duty to detainees is non-delegable has not been resolved at High Court level: Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 at 62 [111] per Kirby J. In this case the issue is not decisive because of the way the applicant has presented his case and the medical evidence.

23    The evidence in this case suggested, so the applicant contended, two types of negligence by the Commonwealth. First, there was the alleged negligence of the Commonwealth in keeping the applicant in what Professor Jureidini described as an environment of incarceration, which included not only the incarceration but “the guards, the bureaucratic cruelty, the exposure to other people’s distress, all those things”. I will refer to this as the applicant’s form of detention case. Secondly, there was the alleged negligence of the Commonwealth in failing to treat the applicant properly. Particular examples of this type of alleged negligence were the failure by the Commonwealth after 17 August 2011 to implement the recommendations of a psychiatrist (Dr Seyed Assadi) and a failure to arrange for proper psychiatric care of the applicant after he attempted to commit suicide on 24 August 2011. I will refer to this as the applicant’s specific acts of negligence case.

24    As far as the applicant’s form of detention case was concerned, the form and circumstances of his detention were squarely within the Commonwealth’s responsibilities. As far as the applicant’s specific acts of negligence case was concerned, that case, for reasons I will give, fails on the ground that it has not been established that any breach caused loss or damage, and perhaps on the ground that there was no breach.

25    The Commonwealth and its service providers proceeded on the basis that the applicant was born on 31 December 1993 and was therefore a minor when he arrived in Australia and that he remained so until the last day of 2011. The applicant gave evidence that he was born on 31 December, but he said that he did not know in which year. All the other witnesses gave their evidence on the basis that the applicant was a minor throughout 2011.

26    After the evidence had been given in this proceeding I made orders for the filing and serving of written submissions. Lengthy written submissions were filed by each party and the submissions proceeded on the basis that the applicant was born on 31 December 1993 (or 1 January 1994) and that he was a minor throughout 2011.

27    Shortly before the day fixed for the hearing of oral submissions the applicant filed and served a document in the following terms:

Addendum to the Applicant’s Outline of Submissions

1.    As a result of further information received the applicant’s lawyers now believe the applicant may not have been under 18 for the period of detention for which the applicant claims damages.

2.    For this reason the applicant does not pursue the claim so far as it relates to the duties of the guardian as pleaded in the Statement of Claim and further particularised in his outline of argument and reply.

28    The applicant did not apply to reopen his case to recall any of the witnesses he had called or to tender any additional evidence.

29    The period of detention for which the applicant claims damages is the whole period of detention. In my opinion, the effect of the statement in paragraph 1 of the Addendum is that it is not open to me to find that the applicant was a minor when he arrived in Australia.

30    In the circumstances, I think that the appropriate finding is that the applicant was a young man when he arrived in Australia. Plainly, as I have said, and as counsel for the applicant conceded, the claim against the third respondent must be dismissed. The evidence, particularly the medical evidence, was given on the basis that the applicant was a minor throughout 2011 and I must do the best I can in assessing evidence given on that basis, while at the same time recognising that there was evidence that did not appear to turn on whether the applicant was a minor on the one hand, or a young man on the other.

The Forms of Detention

31    The term “immigration detention” is defined in subs 5(1) of the Act as follows:

immigration detention means:

(a)    being in the company of, and restrained by:

(i)    an officer; or

(ii)    in relation to a particular detainee—another person directed by the Secretary to accompany and restrain the detainee; or

(b)    being held by, or on behalf of, an officer:

(i)    in a detention centre established under this Act; or

(ii)    in a prison or remand centre of the Commonwealth, a State or a Territory; or

(iii)    in a police station or watch house; or

(iv)    in relation to a non citizen who is prevented, under section 249, from leaving a vessel—on that vessel; or

(v)    in another place approved by the Minister in writing;

but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).

Note 1:    See also section 198A, which provides that being dealt with under that section does not amount to immigration detention.

Note 2:    This definition extends to persons covered by residence determinations (see section 197AC).

32    Section 197AB is in the following terms:

(1)    If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

(2)    A residence determination must:

(a)    specify the person or persons covered by the determination by name, not by description of a class of persons; and

(b)    specify the conditions to be complied with by the person or persons covered by the determination.

(3)    A residence determination must be made by notice in writing to the person or persons covered by the determination.

33    Section 197AC is referred to in Note 2 to the definition of “immigration detention”. Subsections (1), (2) and (3) of that section provide as follows:

(1)    While a residence determination is in force, this Act and the regulations apply (subject to subsection (3)) to a person who is covered by the determination and who is residing at the place specified in the determination as if the person were being kept in immigration detention at that place in accordance with section 189.

(2)    If:

(a)    a person covered by a residence determination is temporarily staying at a place other than the place specified in the determination; and

(b)    the person is not breaching any condition specified in the determination by staying there;

then, for the purposes of subsection (1), the person is taken still to be residing at the place specified in the determination.

(3)    Subsection (1):

(a)    does not apply for the purposes of section 197 or 197A, or any of sections 252AA to 252E; and

(b)    does not apply for the purposes of any other provisions of this Act or the regulations that are specified in regulations made for the purposes of this paragraph.

34    Subject to some exceptions, a person who is the subject of a residence determination is treated as if he or she is in “immigration detention” at the specified place by reason of the operation of subs 197AC(1).

35    The concept of “officer” is a key element of the concept of “immigration detention”. The word is broadly defined in s 5 of the Act and includes a person who is authorised in writing by the Minister to be an officer for the purposes of this Act, as well as any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of the Act, including a person who becomes a member of the class after the authorisation is given.

36    Mr Kelly gave evidence about the forms of immigration detention which are presently available. I accept that evidence. He also gave evidence about what he considered the most appropriate form of detention for the applicant. I will refer to that evidence in what follows. The applicant disputes Mr Kelly’s opinions because he contends that there are a broader range of alternatives available than those identified by Mr Kelly. For reasons which will become clear, I do not need to decide if Mr Kelly’s opinions should be accepted.

37    Mr Kelly identified three types of detention facilities or places. They are immigration detention centres, alternative places of detention, or APODs as they were called in the evidence, or places which are the subject of a residence determination under s 197AB of the Act. Within the class of APODs there are considerable variations in terms of the types of accommodation and the security restrictions. APODs are places approved by the Minister in writing under subparagraph (b)(v) of the definition of immigration detention in subs 5(1).

38    Mr Kelly gave as examples of immigration detention centres the centres at Villawood and Maribyrnong. Mr Kelly said that such centres operate with a higher level of structure and less flexibility than the other two types of detention facilities.

39    Within the class of APODs there is a type of detention facility known as an Immigration Residential Housing facility. There are three such facilities in Australia and they are located in Sydney, Perth and in Port Augusta. Mr Kelly described such facilities as providing the option of accommodating people in family-style housing in a community setting while still being formally detained. Mr Kelly said of such facilities:

The residents in such facilities are able to cook their own food and undertake trips to other locations for shopping and recreational activities under the supervision of Serco. IRHs provide a less institutional, more domestic and independent environment compared to an IDC.

40    Mr Kelly gave his reasons for reaching the view that the immigration residential housing facilities located in Perth and Port Augusta were not suitable for the applicant whereas the facility located in Sydney was suitable.

41    Although the facility in Sydney is next to the Villawood detention centre, Mr Kelly said that it is a separate facility. The facility is guarded by Serco with the guards generally being around the perimeter of the facility or in an on-site office. Occupants are free to move around the facility. The facility is surrounded by a colourbond fence and a fence which is similar to an aluminium pool fence. Mr Kelly said that the fencing was consistent with fencing found in a normal suburban environment. He said that there is no barbed wire surrounding the facility and the surrounding area is extensively landscaped.

42    Mr Kelly described the services, accommodation and security arrangements at the facility as follows:

19.    There are telephones which are landlines available for use by the occupants of SIRH and these are located in the living rooms of each individual house. They are available for use 24 hours a day and are shared amongst the occupants.

20.    Occupants can choose to share a bedroom or be assigned an individual bedroom, when room permits. As stated above, at present the facility is well below capacity numbers. Each house has cooking facilities and the occupants are able to choose and cook their own food. They are taken shopping to purchase food with a designed budget. The occupants have access to various programs and activities including English as a second language (ESL) lessons and excursions. Within the facility there is a ping pong table, gym equipment, a communal BBQ area and eight computers.

21.    The SIRH is supportive of family and community visits and actively facilitates activities. Visiting hours are 8.00 a.m. to 10.00 p.m. daily. Visitors are allowed to be in designated visiting areas but are not permitted in the living quarters. Visitors are required to show proof of ID and complete an identification form on their first visit as well as obtaining prior approval. On subsequent visits a visitor needs to register and show proof of ID. I am not aware of there generally being any issues concerning visits to occupants of the facility and understand that these are usually facilitated by Serco.

…

23.    There are no on-site medical facilities at IRHs. However IHMS, the medical services provider within the detention network, can be contracted to provide specific services if necessary.

24.    Because of the mental health issues present in this case, I would anticipate that such an arrangement would occur in relation to the applicant should he be housed at the SIRH. The occupants can also use GP services or specialist services as appropriate and necessary. Such appointments are generally off-site and the occupants would be escorted by Serco. Should there be any issues about administering medication, Serco could dispense medication.

43    A second subclass of APODs consists of Immigration Transit Accommodation facilities. There are three such facilities in Australia and they are located in Melbourne, Brisbane and Adelaide.

44    Mr Kelly said Immigration Transit Accommodation facilities provide the option of accommodating people in a less restrictive setting while they are still “formally being detained”. Serco provides meals in a dining area and it also facilitates residents using BBQs to assist with cooking some meals. Recreational activities are undertaken on-site under the supervision of the Programs and Activities Coordinator and residents undertake excursions under the supervision of Serco.

45    Mr Kelly said that the facility in Brisbane is very similar to MITA. Mr Kelly described the features of MITA as follows:

28.    The MITA is a separate facility located on a Defence facility with significant grassed areas surrounding. It has a capacity of 78, and at present there are 76 persons in residence in the facility. It comprises the original building and the extension comprising single room accommodation blocks.

29.    While the MITA is guarded by Serco, those guards are generally around the perimeter of the facility or in an office on-site at the facility. The occupants are free to move around within the facility. The facility is surrounded by a colourbond fence and a fence which is similar to an aluminium pool fence, and is consistent with fencing found in a normal suburban environment. There is no barbed wire surrounding the facility. The surrounding area is extensively landscaped.

…

32.    Within the ITAs, there are on-site medical facilities staffed by IHMS from Monday to Friday. There are a number of on-site medical professionals including GP services, a registered nurse, mental health nurse and psychologists. Torture and trauma councillors also visit the centre.

33.    Because of the mental health issues present in this case the applicant is able to freely access these services at MITA as well as external services available in the area. Appointments with external services, such as psychiatry, are generally off-site and the occupants would be escorted by Serco. Medication is generally dispensed by IHMS staff however Serco can dispense medication if required after hours.

34.    If the applicant were to remain in the MITA, he would have support from his friends in the Melbourne community who visit him. Given the risk of self harm, his placement at the MITA would ensure that an appropriate degree of monitoring would occur.

35.    There are telephones which are landlines available for use by the occupants of MITA and these are located in the various common areas. They are available for use 24 hours a day and are shared amongst the occupants.

36.    Adult occupants are assigned an individual bedroom. The occupants have access to various programs and activities including ESL lessons and excursions. Within the facility there is a ping pong table, gym equipment, a communal BBQ area and computers.

37.    The MITA is supportive of family and community visits and facilitates activities. Visiting hours are 2pm to 9pm daily. Visitors are allowed to be in designated visiting areas, but are not permitted in the living quarters. Visitors are required to show proof of ID and complete an identification form on their first visit as well as obtaining prior approval. On subsequent visits a visitor needs to register and show proof of ID. I am not aware of there generally being any issues concerning visits to occupants of the facility and understand that these are usually facilitated by Serco.

46    Mr Kelly said that the Immigration Transit Accommodation facility in Adelaide is similar to MITA although it is smaller. It is located in a suburban street and is used almost exclusively for short term compliance cases on an immediate removal pathway.

47    When the applicant was held at MITA and before the adverse security assessment in December 2011, he was able to leave for day trips in the company of Ms Pamela Curr. Since the adverse security assessment, the applicant must be accompanied by a Serco officer for any excursion or day trip.

48    There was other evidence about the MITA facility. Sister Brigid is familiar with the facility and since 2009 she has visited the centre about once a week. She has seen the applicant about six times. She described his varying moods and she said the applicant was often in bed in the afternoons. Sister Brigid said that she was a designated person who could take people out in certain circumstances. She described the applicant’s visit for a Sunday lunch in company with Ms Curr in early December 2011. I am not sure this date can be correct having regard to Ms Curr’s evidence, but the difference is not material to any issue in the case. She said that during the visit the applicant behaved like a normal teenager. She described MITA as having a sterile and very male environment. She is part of a consultative group to the Minister called the Council for Immigration and Status Resolution (“CISR”). This group consists of officers of the Department, Serco officers and interested members of the community.

49    Ms Curr met the applicant on 28 July 2011. She took him on two excursions and made reference to his improved moods on those excursions. She has special permission to take detainees on excursions without guards. She had fairly regular telephone contact with the applicant and referred to his sense of hopelessness. She was aware of the applicant’s self harm and communicated with various agencies about his plight. Ms Curr has been a strong advocate on the applicant’s behalf. She has written a number of letters and emails about him to the authorities. She said the Minister had refused permission for the applicant to be taken on an excursion on 30 December 2011. The evidence as a whole, including that of Mr Kelly, satisfies me that the applicant could have gone on an excursion on 30 December 2011 but only if accompanied by a Serco guard. Ms Curr described the limited recreational facilities available at MITA.

50    Ms Curr said that the APODs run by the Hotham Mission are not guarded. She is aware that other APODs may involve guards, such as motels and schools.

51    Mr Kelly gave evidence of a third subclass of APODs. They are places which are, from time to time, approved by the Minister or his delegate as places of detention. They include schools, hospitals, hotel or motel accommodation and places of residence. Mr Kelly said that even if an unlawful non-citizen is in an APOD of this nature he or she is still in immigration detention and Serco guards them 24 hours a day. Mr Kelly said that an APOD of this nature would not, or may not, have many of the facilities provided by an Immigration Residential Housing facility or Immigration Transit Accommodation facility, such as ease of access to interpreters, medical treatment, computers, cooking, recreational facilities and the number of excursions.

52    Mr Kelly expressed the view that an APOD of the type described in the preceding paragraph would not be appropriate for the applicant because of the lack of facilities, and, because he would remain in immigration detention, any time he left the APOD he would need to be accompanied by a Serco guard. Furthermore, any visits to the applicant would be subject to the same regime as if he were in an Immigration Residential Housing facility. Mr Kelly said that it would be necessary to identify an appropriate APOD and enter into a leasing arrangement and arrange 24-hour guarding of the APOD, “which would involve significant cost to the Commonwealth”.

53    Mr Kelly addressed a suggestion that accommodation provided by Hotham Mission was suitable for the applicant by saying that the Mission provided assistance with community detention “where that form of detention is approved for a particular person in accordance with section 197AB of the Act (a residence determination)”. I accept that evidence.

54    Mr Kelly said that because of the adverse security assessment any facility for the applicant established by the Department would have to “replicate a detention environment and have sufficient guarding services to protect the interests of the Australian Community”. Mr Kelly expressed the opinion that these requirements would not create “a more supportive residential or family based environment”. This is a reference by Mr Kelly to his understanding of Professor Jureidini’s evidence as to the appropriate facility for the applicant.

The Medical Evidence

55    As I have said, the applicant called Professor Jureidini and the Commonwealth called Professor Mullen. In the documents tendered in evidence there were reports of other psychiatrists and psychologists and of other medical practitioners. For example, there was a report of Dr Seyed Assadi, consultant psychiatrist, dated 17 August 2011, a report of Dr Joel Aizenstros, consultant psychiatrist, dated 29 December 2011, and a report of Dr Peter Young, dated 21 December 2011. Those reports may be relevant to the Commonwealth’s knowledge at particular points in time, but in terms of the applicant’s medical condition and the causes for it, I place most weight on the evidence of Professor Jureidini and Professor Mullen.

56    Professor Jureidini and Professor Mullen differed in terms of their diagnoses of the applicant’s condition and as to whether the Commonwealth’s assessment and treatment of the applicant during his detention had been appropriate. Other than in those areas, there was not a great deal of difference between them in terms of their opinions. I will summarise the evidence of each of them and then set out my findings with respect to the medical evidence.

57    Professor Jureidini is a child psychiatrist. He currently works as a senior child psychiatrist in the Department of Psychological Medicine at the Women’s and Children’s Hospital in Adelaide. He has over 25 years experience in child and adolescent psychiatry. His curriculum vitae sets out the articles and papers he has published in the fields of child and adolescent refugees, mental illnesses and the use of anti-depressants, depression in children and, more generally, mental illness in children and adolescents. He has been involved in both examining and treating children in detention and in examining and treating children after they have been released from detention. The Commonwealth did not challenge Professor Jureidini’s qualifications and experience.

58    Professor Jureidini prepared five reports and they are dated 24 November, 3 December, 20 December 2011, 21 December 2011 and 20 January 2012 respectively. Those reports were tendered in evidence and, in addition, Professor Jureidini gave lengthy oral evidence. He was only briefly cross-examined for reasons which will become clear. Professor Jureidini has strong views about keeping children in detention and, it seems, about the use in psychiatry of concepts such as normal fortitude. I have taken those matters into account in assessing his evidence.

59    Professor Jureidini first saw the applicant by video-link on 22 November 2011. At that stage the applicant was being held at the Darwin Airport Lodge facility and the interview took place two days before the applicant attempted to commit suicide. In his first report, Professor Jureidini set out a history of the applicant’s circumstances and he then addressed a series of questions. Two points about the applicant’s history as recorded by Professor Jureidini should be noted. The first is that the applicant reported that his state of well-being deteriorated about five months after he arrived in Australia, and he began to cut himself. The second is that the applicant felt that the more he saw counsellors, “the worse he gets”. Professor Jureidini expressed the opinion that the applicant was “significantly psychologically impaired”. He expressed the opinion that the applicant met the criteria for a major depressive disorder and that he considered the applicant’s depression to be severe. Professor Jureidini said that a reaction to being held in immigration detention “exacerbated by what he must experience as the cruelty of having refugee status but not being granted a visa” were the causes of the applicant’s psychiatric condition.

60    Professor Jureidini referred to the fact that the applicant was a minor and that, as a minor who could not currently be reunited with his family, “he should be placed in a supportive, preferably family based environment”. He said that the current manner and level of treatment of the applicant was not adequate to meet the applicant’s needs, “most importantly because it has been conducted in the environment which is causing the damage”.

61    Professor Jureidini spoke to the applicant by telephone on 2 December 2011, at which time the applicant was being held in MITA. Professor Jureidini then prepared his second report dated 3 December 2011. It does not add to his first report in any respect which is presently material.

62    Some time between 2 December 2011 and 19 December 2011 the applicant was advised that he had been given an adverse security assessment. Professor Jureidini spoke to the applicant by telephone on 19 December 2011 and he then prepared his third report which is dated 20 December 2011. Professor Jureidini said that transferring the applicant to community detention would decrease the applicant’s risk of self-harm or suicide, increase the treatment available to the applicant and would be much more likely to secure the applicant’s safety than detention at immigration detention facilities such as MITA, the Darwin Airport Lodge or the Villawood Detention Centre.

63    In his fourth report dated 21 December 2011, Professor Jureidini sets out the reasons why, in his opinion, the applicant should be removed from the detention environment and placed in community detention. The community detention Professor Jureidini had in mind was a house supported by the Hotham Agency, with one other Iraqi boy, staffed by mature carers, many Arabic speaking, who have an educative as well as supervisory role.

64    Professor Jureidini interviewed the applicant on 20 January 2012. In his fifth report Professor Jureidini said that he agreed with the opinion of Dr Joel Aizenstros set out in his report dated 29 December 2011 as to the causes of the applicant’s condition. Dr Aizenstros saw the applicant at the request of IHMS on 23 December 2011 and in his report he identified the cause of the applicant’s psychiatric condition in the following passage:

In my opinion, the cause of his condition relates to a combination of traumatic upbringing, illicit substance dependence and withdrawal, imprisonment of his father in Indonesia, and traumas related to his experiences in multiple detention centres while awaiting deliberations of his refugee status and release to the community in Australia, following his illegal arrival in 2010.

65    Again, Professor Jureidini expressed an opinion about the effect of the place of detention on the applicant’s mental condition. He said that the applicant did not require any special environment or hospitalisation, but that it would be therapeutic for him to be in an environment “where he is free to come and go as he pleases and has appropriate social supports”.

66    Professor Jureidini said that the major cause of the applicant’s mental condition was his “detention experience”. In his oral evidence-in-chief he described what he meant by that expression and he said that he was referring to intrusive searches, inspection and monitoring by staff and the frustration caused by the bureaucracy associated with being in detention. Professor Jureidini said that the proper treatment was removal to a more appropriate environment which he described in various ways, including a family-type environment and an environment where he had older people around him who would guide and nurture him. Professor Jureidini said that placing a person who is a suicide risk on close watch is likely to exacerbate their mental problems rather than alleviate them.

67    Professor Jureidini was taken through the joint report of Professors Mullen and Ogloff, dated 21 January 2012, and he said he agreed with many of the statements in it. He said that while he agreed with Professors Mullen and Ogloff that the applicant met the criteria for an adjustment disorder he also met the criteria for a major depression. In those circumstances one would not diagnose an adjustment disorder because it is “a lesser diagnosis”.

68    Professor Jureidini said that it was the incarceration of the applicant which was causing his mental health problems and the “package” that goes with it, “the incarceration, the guards, the bureaucratic cruelty, the exposure to other people’s distress, all those things”. He agreed in cross-examination that the applicant could not be helped in a real way unless he is taken out of the current form of immigration detention and put in community detention. He agreed that it was the detention experience that has caused and is exacerbating his mental condition. He was asked about the effect of good treatment if the applicant remained in detention. The following exchange occurred:

So the best treatment in the world would not make any real difference to his mental condition, if he remains where he is or in that form of detention? … The best treatment that he could receive in his current environment wouldn’t significantly alter his condition.

69    Professor Jureidini expressed the opinion that the assessment and treatment of the applicant had not been appropriate. He had not received supervision appropriate for his mental health and the response of those caring for the applicant to his attempt at suicide (that is, keeping him in hospital for one night and then returning him back to the detention environment) was not a reasonable response. Other than what I have just said, Professor Jureidini did not go through the history of the applicant’s treatment and give evidence of specific instances of inadequate treatment.

70    Professors Mullen and Ogloff interviewed the applicant at MITA on 19 January 2012 and their joint report is dated 21 January 2012. Professor Mullen gave oral evidence-in-chief and he was cross-examined at some length. He agreed that he had allowed himself to become an advocate for Mr David Hicks “perhaps wrongly” and that is a matter I take into account in assessing his evidence. Professor Mullen said that he reviewed the documentation and set out a summary of his review in his report. Professor Mullen noted the following incidents of self-harm by the applicant and one attempt at suicide:

(1)    Self harm in Indonesia sometime in 2010.

(2)    Superficial cutting and head banging on or about 24 April 2011.

(3)    Another episode of head banging and inflicting cuts to his arms on or about 5 June 2011.

(4)    Sewed his lips together with two other residents on or about 24 July 2011.

(5)    An episode of cutting to the wrists on or about 24 August 2011.

(6)    A probable episode of cutting on 21 September 2011 and an episode of cutting on 24 September 2011.

(7)    An episode of cutting on or about 13 October 2011 and a further episode involving superficial lacerations to the top of his head on or about 15 October 2011.

(8)    Attempted suicide by suspending himself from a shower rose and kicking the chair he was standing on away on 24 November 2011.

71    Professor Mullen also noted that the applicant had failed to attend a number of medical appointments. The following is a summary taken from Professor Mullen’s report:

(1)    He failed to attend two appointments with a psychologist on Christmas Island after 16 January 2011.

(2)    He failed to attend an appointment for a mental health review on 3 June 2011.

(3)    He failed to attend appointments with a mental health nurse on 14, 16 and 24 June 2011.

(4)    He failed to attend appointments on 1, 2 and 3 August 2011.

(5)    He failed to attend two appointments with a counsellor between 25 August 2011 and 21 September 2011.

(6)    The applicant declined an appointment with a psychologist on 26 September 2011.

(7)    The applicant refused an appointment with a general practitioner on 18 October 2011.

(8)    The applicant declined to see a counsellor at the Melaleuca Refuge Centre on 24 November 2011.

72    Professor Mullen reviewed the report of Dr Assadi, the first three reports of Professor Jureidini and the report of Dr Joel Aizenstros.

73    Professor Mullen said that he noted that Professor Jureidini expressed trenchant criticisms of the quality of support and care provided by the mental health services during the detention of the applicant.

74    Professor Mullen described his observations of the applicant during the interview on 19 January 2012. He expressed number of opinions. First, he said that the applicant does not have major depression. Secondly, he said that the applicant’s attempts to hang himself were serious and he remained at high risk of a repetition, particularly if his circumstances remain unchanged. Thirdly, he said that the applicant did not have a personality disorder, but he did have an adjustment disorder accompanied by depressed mood, anxiety and behavioural disturbances. Fourthly, he said that, should the applicant be held in detention on an ongoing basis, it is inevitable that his mental state and behaviour will again deteriorate and “there is a real risk that he would once again engage in a potentially lethal suicide attempt”.

75    Professor Mullen also expressed the opinion that given the applicant’s relative youth, difficult history, prior substance abuse and degree of social immaturity and isolation he appeared to be more vulnerable than other people his age under similar circumstances. Professor Mullen said that the adjustment disorder the applicant experienced and his dysfunctional reaction to being detained would not have occurred but for him being placed in immigration detention.

76    Professor Mullen was asked whether the applicant’s medical condition was an inherent and inevitable risk of him being held in a detention centre. His response was as follows:

While [SBEG] experienced some adverse psychiatric symptoms while in the community, the range and severity of conditions he has experienced since coming to Australia are an inevitable risk of him being in a detention centre. In particular, his risk of suicide, as evidenced by the nearly lethal episode of attempted hanging in November 2011, is inherently related to him being in immigration detention.

77    In terms of the applicant’s treatment while in detention, Professor Mullen expressed the opinion that it had been appropriate, subject to the one exception, and that was that following Dr Assadi’s examination he was not provided with ongoing treatment by a clinical psychologist. He also said that, although following the self-harm incidents and attempted suicide the applicant may have benefited from more intensive clinical work with a clinical psychologist or psychiatrist, the fact that the precipitants were “situationally determined” made it unlikely that any degree of clinical intervention would have been particularly beneficial.

78    Professor Mullen expressed the opinion that the applicant was being managed appropriately from a medical perspective. He concluded his report by saying that the issue with the applicant is not so much the place of accommodation; “it is the fact that he is being detained that has been difficult for him”.

79    In cross-examination Professor Mullen agreed that the applicant should have been the subject of a proper psychiatric assessment at Darwin Hospital after his attempt to commit suicide. He did not receive appropriate psychiatric support and treatment for that event. Professor Mullen agreed that the applicant was not seen by a psychiatrist (other than Professor Jureidini who was preparing a report for the applicant’s solicitors) from the date of his suicide attempt to the date upon which he saw Dr Aizenstros (that is, 23 December 2011). Nor did he see a psychologist, despite the fact that he had an appointment to do so on 12 December 2011 which he did not attend. Professor Mullen was taken to a note written by a mental health nurse, Ms Sharon O’Reily, sometime between 15 December 2011 and 18 December 2011. She referred to the fact that the applicant had significant concerns about returning to MITA as he felt unsafe amongst the adult population. He was also taken to a non-consultation note of Ms O’Reily which contained a recommendation that the applicant be placed in community detention in order to minimise ongoing risks of self-harm or suicide.

80    Professor Mullen was asked questions about an email written by Ms O’Reily on 9 January 2012. It is useful to set that email out because it reflects the views of at least one person treating the applicant in detention.

Email sent to detention health

I am writing following up on my email dated the 23.12.11 regarding my concerns for this young man. [SBEG] has a significant history of self harm whilst in detention, the last being in Darwin of a reported attempted hanging. [SBEG] has been going through court proceedings and his court case outcome was given to him today which was not a good outcome.

[SBEG] was expecting that the courts would release him to the community which did not occur. [SBEG] has just turned eighteen and has received a negative security clearance.

Now that he feels he has no hope of community detention I am even more concerned about his risk of self harm and or suicide escalating.

I have reviewed him today and he reports that he is worried he will self harm, and has also stopped eating and drinking.

PSP has been initiated but I need to highlight, that as long as this young man remains in detention he will present as a high risk of self harm and possibly suicide.

He has had numerous psychiatric reviews, the last review recently for the court appearance. His diagnosis is Chronic Adjustment Disorder with an anxious and depressed mood in remission, but it was highlighted he could decompensate quite rapidly in the context of emotional distress which is what is occurring now. The prognosis is that [SBEG] will continue to be a high risk of self harm whilst in detention.

If you would like a copy of the psychiatrist report, please advise.

I would appreciate any feedback.

81    Professor Mullen agreed that there was no evidence that Dr Assadi’s recommendations in his report dated 17 August 2011, which included that the applicant be referred to a clinical psychologist for psychotherapy, were implemented.

82    Professor Mullen said that the greater the freedom and the less the uncertainty, the better the applicant is likely to function. Professor Mullen said that no form of mental health care is likely to have a major impact because “the nature of the stresses and distress stem from a situation in which this young man finds himself” and, “in the end, what caused the problems was the situation he was in, not the lack of any particular form of mental health intervention”. Professor Mullen said that it was his opinion that if there is no change to the applicant’s environment then he is at a very real risk of dying.

83    The findings I make with respect to the medical evidence are as follows.

84    First, the applicant has a psychiatric illness which is either a major depressive disorder or an adjustment disorder accompanied by depressed mood, anxiety, and behavioural disturbances. The latter is included within the former and is a “lesser” diagnosis. I do not think that I can choose between the two. The precise diagnosis was not a prominent feature of either party’s case and there was no extended cross-examination of Professor Jureidini or Professor Mullen which might assist me in reaching a clear conclusion. There is nothing inherent in the evidence of either of the witnesses which enables me to feel confident about the correct diagnosis. Matters such as the fact that Professor Jureidini is a child psychiatrist and Professor Mullen is a forensic psychiatrist would not in my view be a sufficient basis to conclude that one opinion ought to be accepted over the other. I am able to conclude that the applicant has a psychiatric illness which fluctuates in terms of symptoms and which is of sufficient seriousness to lead to acts of self-harm from time to time and an attempt to commit suicide. As Professor Mullen said, if the applicant is held in detention on an ongoing basis it is inevitable that his mental state and behaviour will again deteriorate and “there is a real risk that he would once again engage in a potentially lethal suicide attempt”.

85    Secondly, the applicant’s psychiatric illness results from a number of factors, including his traumatic upbringing, illicit substance dependence and withdrawal, the imprisonment of his father in Indonesia and traumas associated with his detention since his arrival in Australia in December 2010. The primary cause of his present psychiatric illness is his detention and what Professor Jureidini referred to as the detention or incarceration environment. A further contributing factor in 2011 was the fact that he had been assessed as having refugee status, but prior to being advised of the adverse security assessment in December 2011, was uncertain about when he might be released and, after the assessment, knew that he could be detained indefinitely.

86    Thirdly, the only effective treatment for the applicant’s condition is release from the detention or incarceration environment. There were many statements of a general nature about the environment which would eliminate those circumstances which are presently contributing to the applicant’s mental illness. The effect of the evidence is that those circumstances would be eliminated if he was in a place where he was free “to come and go as he pleases and has appropriate social supports” (see above at [65]). Other than a residence determination under s 197AB of the Act, the applicant was not able to identify a place or a precise set of circumstances which would eliminate the causative factors. Professor Mullen said that the “big problem” was the applicant’s loss of freedom and the uncertainty as to his future and that “anything that moves towards giving him greater freedom and greater hope for the future will improve the outcome”. The applicant built an argument on this statement to the effect that the Commonwealth was in breach of its duty of care in not moving the applicant to an environment which would provide him with greater freedom, albeit not one in which he is free to come and go as he pleases.

87    Fourthly, although Professor Jureidini made general statements about inadequate assessment, treatment and supervision of the applicant by the Commonwealth, he did not identify any particular instances of a failure to render appropriate medical treatment other than the instance referred to above (at [69]). His point was that the applicant could not receive appropriate treatment “because it has been conducted in the environment which is causing the damage”. He said that the transition to new environments was a source of additional trauma and “intensify the need for transition to a more sympathetic environment”. He said that events in August, including Dr Assadi’s psychiatric assessment, should have alerted the authorities to the need for the applicant “to be removed from that detention environment”. He said that the psychiatric care provided in detention has never been appropriate because “those attempting to minister to his needs have not had the option of placing him in an environment that was not exacerbating the damage being done to him”.

88    Professor Mullen had considered the medical notes, or at least a substantial portion of them, and he expressed the opinion that the applicant’s treatment was appropriate. He applied a standard of the treatment that could be expected by an ordinary member of the Australian community. I am not sure that, expressed in those simple terms, that is the appropriate standard because of the very different circumstances between the applicant’s detention and the position of an ordinary member of the Australian community. I note, for example, the IHMS contract adds the rider of “taking into account the particular health needs of People in Detention”. At all events, when Professor Mullen was cross-examined, other than some questions about whether the recommendations in Dr Assadi’s report of 17 August 2011 should have been implemented, the primary focus of the cross-examination was on how the applicant should have been treated after his attempt to commit suicide on 24 November 2011. Mr Kelly was cross-examined extensively by reference to the medical records and the Department’s records about how the applicant has been treated since he arrived in Australia, but, as he made clear on a number of occasions, he has no medical expertise.

89    As part of their closing addresses both parties submitted detailed chronologies and other documents addressing the applicant’s circumstances and treatment since he arrived in Australia. The other documents included charts showing medical appointments the applicant attended and appointments he missed. The point to be made is that a number of the events and circumstances were not the subject of specific medical evidence. This will be significant when I come to consider the applicant’s specific acts of negligence case.

90    I have considered the medical and other records and the chronologies and other documents. I will provide a summary of the relevant events. It is not necessary for me to go any further than that because I am able to decide the applicant’s form of detention case by reference to the scope of the duty of care, and the applicant’s specific acts of negligence case by reference to the requirement that any breach or breaches cause the loss or damage.

91    I turn now to examine the applicant’s condition, circumstances and treatment by reference to the particular places at which he was detained.

The Applicant’s Detention on Christmas Island Between December 2010 And May 2011

92    The applicant claims that the Commonwealth breached its duty of care to him while he was on Christmas Island in various ways. First, he alleges that the conditions of detention were unnecessarily harsh with a lack of access to social and educational facilities, lack of access to social and welfare services and inadequate or no appropriate mental health treatment. Secondly, he alleges that he was detained in the Christmas Island environment for an unnecessarily long time. Thirdly, he alleged, but no longer alleges, that the third respondent failed in various ways to perform his various duties as a guardian. Fourthly, he alleges that the Commonwealth failed to provide the applicant with psychiatric treatment while he was on Christmas Island. The applicant lists a number of facts which he contends were known to the Commonwealth and which suggested or ought to have suggested to the Commonwealth that he needed psychiatric treatment, including the fact that he had been assessed as a refugee under the Refugees Convention. Fifthly, he alleges that the Commonwealth failed to monitor the services provided by either IHMS or Serco to the applicant. This is not an allegation of a separate breach, but rather an allegation that the Commonwealth cannot avoid liability for breach on the basis that the services were provided, or not provided, by IHMS or Serco. Finally, the applicant alleges that the Commonwealth provided detention services in breach of its own Detention Services Manual standards.

93    A brief summary of the applicant’s evidence about his stay on Christmas Island is as follows. The applicant said that he saw a psychologist once while he was on Christmas Island. From time to time he was asked to see a psychologist but he did not do so. He was unable to explain why he did not go to see the psychologist. Although he cut his right arm and banged his head while on Christmas Island, the applicant said that there were a lot of activities and he engaged in all of them and that “mostly” he was fine while on Christmas Island. He said that he could not remember being spoken to by the authorities about whether he was being bullied while on Christmas Island. In this context it is relevant to recall that the applicant told Professor Jureidini that his state of well-being deteriorated about five months after he arrived in Australia. I accept the applicant’s evidence.

94    A summary of the key events involving the applicant while he was on Christmas Island is as follows:

The Applicant’s Detention at MITA Between May And August 2011 and November And January 2012

95    The allegations of breach by the Commonwealth during the applicant’s two periods of detention at MITA are similar to the allegations of breach in relation to his stay on Christmas Island (see [92] above) with the addition of references to updated events.

96    A brief summary of the applicant’s evidence about his two periods of detention at MITA is as follows. The applicant said that he was given only one day’s notice of his move from Christmas Island to MITA. He said that when he first arrived at MITA he had difficulties sleeping and he asked to see a psychologist. His poor sleeping habits continued and over time he began developing poor eating habits. He was prescribed and was taking medication to assist him with sleeping.

97    The applicant began self-harming either by banging his head or by cutting himself. He estimated that he had cut himself 10-12 times while he was in detention. The first act of self-harm at MITA noted in the records occurred on 5 June 2011. The applicant said that he became angry at times and he would damage property. He said that from time to time he would stop taking his medication. The applicant said that he became increasingly frustrated with his incarceration. On 24 July 2011, he and two other inmates sewed their lips together. The applicant did that because he was told that he could not go into the community.

98    The applicant witnessed distressing events in detention, such as another inmate trying to commit suicide by hanging himself and by taking an overdose of medication. He began hearing voices. He said that he began taking illegal drugs in Melbourne. He said he would prefer not doing that and that is why he preferred Darwin where there were families, to MITA, where he saw drugs regularly. The applicant expressed a very strong view that he did not want to be detained in Melbourne. At one point he said:

A month would not pass before they take me out of there as a corpse.

I accept the applicant’s evidence.

99    A summary of the key events at MITA is as follows.

The Applicant’s Detention at The Darwin Airport Lodge Between August And November 2011

100    Again, similar allegations of breach (with a reference to updated events) were made against the Commonwealth in relation to the applicant’s period of detention at the Darwin Airport Lodge as were made in relation to his stay on Christmas Island.

101    The applicant’s detention experience in the Darwin Airport Lodge appears to have been similar to his experiences in MITA, subject to three differences. I have already referred to the difference in terms of the availability of drugs. Secondly, there was an incident where the applicant became so angry that he was not released from detention that he threw a television, antenna and two small chairs from the window of the upper floor of a building. Thirdly, and most significantly, there was the applicant’s attempt to hang himself in his bathroom on 24 November 2011. He said that he was thinking of dying that day because:

I was sick of myself. I was sick of the world. I was sick of everything.

I accept the applicant’s evidence.

102    A summary of the key events at the Darwin Airport Lodge facility is as follows:

the Applicant’s Detention at the Adelaide Immigration Transit Accommodation Facility during the Trial and for a Period Thereafter

103    The Adelaide facility is a house and there were four inmates and two uniformed officers. They were older than the applicant and were of different nationalities. There was no evidence about the applicant’s condition, circumstances and treatment in the Adelaide facility. The Court was recently advised that the Commonwealth was proposing to return the applicant to MITA.

Issues on the Application

104    The focus of the applicant’s case is his mental health needs. That is apparent from the evidence and the terms of the injunctive order he seeks.

105    In S, Finn J made the point that to say that the Commonwealth owed a non-delegable duty of care to detainees did little to illuminate what, in the context of immigration detention under the Act, is the scope and content of the Commonwealth’s duty (at 261 [213]). In respect of that issue, his Honour sought guidance by examining the reasons he had concluded that the Commonwealth’s duty of care was a non-delegable duty of care. After that examination his Honour said (at 262-263 [217]-[218]):

The duty imposed on the Commonwealth must accommodate that special dependence and the peculiar vulnerability to which detainees known to suffer mental illness are exposed. The duty must also take account of the very distinctive outsourcing arrangements the Commonwealth has been prepared to accept for the provision of health care services.

This case is one of first impression and for that reason it is necessary to approach the standard required of the Commonwealth with some caution. This said, I am nonetheless satisfied that the minimum properly to be expected of the Commonwealth in virtue of its relationship with detainees in an immigration detention centre such as Baxter is that it ensure that reasonable care is taken of the detainees who, by reason of their detention cannot care for themselves: cf Spicer v Williamson 132 SE 291 (1926) at 293. This necessitates that the Commonwealth ensures that a level of medical care is made available which is reasonably designed to meet their health care needs including psychiatric care: see, for example, Brooks v Home Office (1999) 48 BMLR 109 at 114; cf also, although in a setting affected by constitutional considerations, Bowring v Goodwin 551 F 2d 44 (1977) at 47. Where, as here, the Commonwealth contracts out the provision of services to detainees it is obliged to see that “care is taken”: cf Kondis at CLR 686; ALR 234; and that the requisite level of medical care is provided and with reasonable care and skill.

106    The applicant’s form of detention case is that the level of medical care reasonably designed to meet his health care needs requires detention in a community setting and that the Commonwealth’s failure to arrange that is a breach of its duty of care. I will need to come back to what is meant by “community setting” because it is a very important point having regard to the facts of this case. For present purposes, I will simply refer to detention in a community setting to contrast it with detention in a place such as MITA. The applicant submitted that it was foreseeable to the Commonwealth that detaining the applicant in a formal detention environment may lead to him suffering mental harm. It relied on general evidence of the effects of detention on minors and evidence specific to the applicant.

107    The applicant did not attempt to identify the point at which the possibility of mental harm became reasonably foreseeable, or the point at which he first suffered mental harm. It is enough for me to find that by the time of Dr Assadi’s report dated 17 August 2011, if not before, it would have been reasonably foreseeable to the Commonwealth that continued detention in MITA or similar places could cause mental harm to the applicant. However, the question is whether the Commonwealth was under a duty to take steps to avert the risk of harm by transferring the applicant to the form of detention he now seeks. The answer to that question is informed by the statutory provisions which authorise the detention of the applicant.

108    The Commonwealth submitted that it did not have the power under paragraph (b)(v) of the definition of immigration detention in subs 5(1) of the Act to transfer the applicant to the form of detention now sought. It pointed to the fact that the applicant had not sought a residence determination under s 197AB and submitted, correctly in my view, that the Minister could not be compelled to make such a determination. The Commonwealth’s submission does not quite meet the applicant’s case as it developed. The fact that the Commonwealth made the submission is entirely understandable in view of the medical evidence and the general nature of the injunctive order sought by the applicant. However, as I understood the applicant’s argument it was that the Commonwealth could devise a form of detention under paragraph (b)(v) of the definition of immigration detention which recognised being held by, or on behalf of, an officer and the adverse security assessment, but at the same time, meant that he was in the community. The following exchanges occurred in the course of Mr Kelly’s cross-examination.

So if the applicant says, ‘I don’t want MITA and I don’t want Sydney. I don’t care if I have two or three guards or one guard. I want to be in a more residential type environment, with, perhaps, carers around me’. The applicant says that and the doctors indicate that that would be better for his health. You would defer to that? … No. I would take that into account, your Honour. It’s not the sole factor in determining an accommodation placement for an individual. We would take a range of factors into account.

…

That he couldn’t be locked in a house with a Serco guard at the front door, but he received treatment in a therapeutic environment. He couldn’t do that? … Your Honour, the issue about restrictive detention, if he is locked in a house, that is a far more restrictive environment than in the Darwin Airport Lodge, where there is a perimeter fence and he is able to move freely within the facility.

So it was just a question of, ‘well, there’s nothing that’s available apart from the places he has been placed in’? … That’s probably fairly accurate your Honour.

…

There wasn’t any question of designing an appropriate environment that might fit his needs and the needs of the Australian community? … There was consideration broadly given, but in terms of the preferred options, at least the department believed the preferred options open were the ones that I have outlined in the affidavit, your Honour.

109    The applicant does not identify the precise form of detention he seeks in the injunctive order he claims. Nor did he do so in the evidence or in the submissions, other than general examples such as a residential house with a guard, or possibly two guards.

110    It seems to me that the proper construction of the definition of immigration detention in subs 5(1) and of s 197AB of the Act leads to the following propositions.

111    First, the power in paragraph (b)(v) could not be exercised in a way which had an effect similar to a residential determination under s 197AB. They are two different powers. One involves a form of immigration detention, or holding by, or on behalf of, an officer (that is, paragraph (b)(v)), whereas the other involves residence at a place with (subject to some exceptions) the Act and regulations applying as if the person is being kept in immigration detention (s 197AB).

112    Secondly, I do not think the “other place” within paragraph (b)(v) need be a formal institutional place like MITA. While it may be something different from that, it must still be a place where a person can be said to be held by, or on behalf of, an officer. To the extent that the Commonwealth submitted that the place for the purposes of paragraph (b)(v) must be a formal institutional place (to be fair to the Commonwealth, I am not sure it went that far), I reject the argument. I do accept the Commonwealth’s submission that a person in a place approved under paragraph (b)(v) would need to be guarded, and in view of the adverse security assessment, the extent of the security measures would be a matter for the Commonwealth.

113    Thirdly, I think the nature of the power in paragraph (b)(v) and the considerations relevant to its exercise, are such that the Commonwealth (or the Minister) would not be in breach of any duty of care for failing to exercise the power. Many considerations might be relevant to the exercise of the power, including cost considerations, the ready availability of other services in a residential setting, and security considerations associated with an adverse security assessment. As far as cost considerations are concerned, it is not a matter of the Court declining to make the order sought by the applicant because Mr Kelly’s rather general evidence was that it would be a good deal more costly to house the applicant in the manner he seeks rather than at a place like MITA. The significant matter is that cost considerations are relevant to the exercise of the power in paragraph (b)(v). It seems to me that it is not possible to formulate the practical content of a duty to exercise the power in paragraph (b)(v) (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 [5] per Gleeson CJ).

114    The applicant sought to dissuade me from reaching these conclusions by referring to the decisions in Mastipour and S.

115    In Mastipour, the Secretary and the Commonwealth appealed to the Full Court of this Court from an interlocutory injunction that required the Secretary to transfer the detainee from the Baxter Detention Centre to the Villawood Immigration Reception Processing Centre or to the Maribyrnong Immigration Reception Processing Centre. The applicant had been kept in solitary confinement in the Baxter Detention Centre and was treated badly by other inmates because they believed that he had sexually assaulted his daughter. The Full Court upheld the substance of the primary judge’s reasoning, although the Court said a mandatory injunction was inappropriate and that the appropriate order was a prohibitory injunction restraining the Secretary from holding the applicant at Baxter or removing him to the Port Hedland Reception and Processing Centre in Western Australia.

116    In S, Finn J found that there had been continuing failures by the Commonwealth both to take appropriate steps to arrange psychiatric assessments after medical referrals and to implement adequately treatment plans that had been prescribed. His Honour found that medical opinions from two outside psychiatrists and a general practitioner were to the effect that the conditions at the Baxter Detention Centre (“Baxter”) were themselves a contributing cause of the mental illness of the applicants, that Baxter was unable to provide the level of care now required by the applicants given their conditions and that Baxter was an inappropriate treatment environment for them. His Honour said that the Commonwealth took no steps to obtain independent advice and that was a breach of duty. His Honour said that he would have granted injunctive relief against the Commonwealth to prevent it from exposing the applicants to the likelihood of harm. However, he was not required to consider the form of relief because, by the time of his judgment, the applicants had been transferred to Glenside Hospital. S was a case where the judge found that the Commonwealth was under a duty to ensure a level of medical care is made available which is reasonably designed to meet the applicants’ health care needs including psychiatric needs. The Commonwealth did not act reasonably because it did not seek an independent assessment.

117    The decisions in Mastipour and S go some way towards supporting the applicant’s argument. They support the proposition that the scope of the Commonwealth’s duty of care may include a duty to transfer a detainee from place A to place B where the only or primary consideration is the mental health needs of the detainee. It is another step to hold that the scope of the Commonwealth’s duty of care includes a duty to devise a form of detention under paragraph (b)(v). That is a step which should not be taken for reasons I have given. The applicant’s form of detention case must fail.

118    The applicant’s form of detention case must fail for another quite independent reason. The applicant has established that community detention under s 197AB of the Act, where the applicant is free to come and go as he pleases, would improve his mental health in a material way. That conclusion is established by the evidence of Professors Jureidini and Mullen. He is not claiming any breach by the Commonwealth by reason of a failure to make a residence determination. The applicant has not established that the alternative form of detention which he has identified in a very general way would improve his mental health in a material way. Having regard to the evidence as a whole, general evidence of the type given by Professor Mullen, and referred to above (at [82] first sentence) does not establish that proposition.

119    The applicant’s form of detention case must be rejected. In the circumstances, I do not need to consider at any length the problems associated with the form of the order sought by the applicant. It is, in reality, a claim for a mandatory injunction of uncertain scope and operation. For example, there are clearly difficulties in linking the Commonwealth’s obligations to the mental health needs of the applicant which of course may change from time to time.

120    I turn now to consider the applicant’s specific acts of negligence case. In essence, the applicant’s case was that he was not provided with proper and reasonable mental health treatment. He also made a general allegation of a lack of educational services and recreational activities, but the evidence on these matters was very general and not linked by medical evidence to the mental health of the applicant.

121    There was no detailed medical evidence dealing with the applicant’s treatment during the greater part of 2011. There was evidence dealing with the applicant’s treatment at or about the time he attempted to commit suicide, and a reference to whether Dr Assadi’s recommendations were implemented. However, for the earlier period I was left with the medical and other records and the evidence of Mr Kelly. I had no specific medical evidence in relation to the earlier period that, for example, a particular course of treatment should have been undertaken at a particular time. The problem caused by this lack of evidence was compounded by the fact that, as appears from the statement of facts set out above, the applicant was, from time to time, uncooperative and would not attend medical appointments. In the end, it has not been necessary for me to deal with these problems because of the views I have reached about causation.

122    There is a good deal to be said for the view that at least on a couple of occasions, the Commonwealth did not provide proper and reasonable medical treatment to the applicant, even in a context in which he was from time to time uncooperative. I have in mind the failure to provide psychiatric or psychological treatment immediately after his attempt to commit suicide. Whether the Royal Darwin Hospital also had a responsibility in that regard matters not. The Commonwealth had a responsibility to act whether or not the hospital acted. Furthermore, it seems that a more concentrated and timely provision of psychiatric or psychological treatment was called for when the applicant was first taken to MITA in May and June 2011. Finally, it seems to me that consideration should have been given to whether or not Dr Assadi’s recommendations were implemented, and, if so, how they should be implemented. Despite these apparent failures by the Commonwealth, there is no evidence that they have caused any loss or damage to the applicant. In fact, the medical evidence and my finding is that it is the form of detention which has and is causing the applicant’s mental health problems. I do not stop to consider whether in fact the deficiency in the applicant’s case may be analysed as a failure to prove breach in the sense that the failure to treat did not involve a risk of harm because it was the form of detention which gave rise to the risk of harm. It is sufficient for me to say that the applicant’s specific acts of negligence case fails because the applicant has not established that any breaches by the Commonwealth caused him loss or damage.

123    It has not been necessary for me to examine State Acts in Western Australia, Victoria and South Australia which bear upon the recovery of damages for the tort of negligence. The Commonwealth referred me to those Acts. It submitted that the relevant choice of law rule requires the Court to consider the law in each of the States in which the applicant has been detained. That submission is correct: John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503. However, I have considered the applicant’s case by reference to the common law principles and he fails for the reasons I have given. Neither party suggests that any of the Civil Liability Act 2002 (WA), Wrongs Act 1958 (Vic) or the Civil Liability Act 1936 (SA) expands, as distinct from contracts, the common law rules of liability.

Conclusion

124    The applicant’s application must be dismissed. I will hear the parties as to costs and any other orders.

Associate:

Dated:    4 June 2012