Federal Court of Australia

MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s Application for an order in the nature of a writ of habeas corpus be dismissed.

2.    Unless a different order is applied for within seven days of the publication of these reasons the Applicant is to pay the Respondents’ costs as agreed or in default of agreement, as taxed.

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

REASONS FOR JUDGMENT

KERR J:

1    The Applicant is a national of Pakistan. He identifies as being a Pashtun and Sunni Muslim. He was born on 7 August 1985.

2    On 3 August 2013, the Applicant arrived by boat at Christmas Island.

3    In consequence of his arrival in those circumstances the Applicant thereupon acquired a dual legal status for the purposes of the Migration Act 1958 (Cth) (Migration Act): that of an unlawful non-citizen and that of an unauthorised maritime arrival. Upon his arrival at Christmas Island the Applicant was taken into immigration detention.

4    On 6 September 2013 the Applicant was taken to the Republic of Nauru (Nauru). This was effected pursuant to s 198AD(2) of the Migration Act. Nauru had been earlier designated by the Minister to be a regional processing country pursuant to s 198AB(1) of the Migration Act. As is relevant that section provides:

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

5    After arriving in Nauru the Applicant advanced claims to be a refugee and to be entitled to protection against non-refoulement.

6    The Applicant’s protection claims as advanced in Nauru have yet to be finally determined. To date the Applicant’s claims have been dealt with as follows. On 17 July 2014 the Secretary, Department of Justice and Border Control of Nauru (the Secretary) concluded that the Applicant was neither a refugee in accordance with Part 2 of the Refugee Convention Act 2012 nor was he a person to whom Nauru owed complementary protection obligations under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) (the Refugee Convention). On 29 December 2014, the Nauru Refugee Status Review Tribunal (the Tribunal) affirmed the Secretary’s decision. On 20 May 2016, the Supreme Court of Nauru dismissed the Applicant’s appeal against the Tribunal decision. On 7 February 2017 the Applicant’s further amended notice of appeal challenging the Tribunal’s decision was also dismissed by the Supreme Court of Nauru.

7    But for what then followed, that would have exhausted the Applicant’s legal rights. However under the law of Nauru as then in force the High Court of Australia (the High Court) also served as that nation’s final court of appeal. The Applicant sought and was granted special leave to appeal.

8    On 13 December 2017 in the exercise of its Nauruan jurisdiction the High Court allowed the Applicant’s appeal: DWN042 v The Republic of Nauru [2017] HCA 56. Keane, Nettle, and Edelman JJ ordered as follows:

1.    Appeal allowed.

2.    Set aside the order made by the Supreme Court of Nauru on 7 February 2017.

3.    Remit the matter to the Supreme Court of Nauru, to a judge other than Judge Khan, for reconsideration according to law.

4.    The respondent pay the appellant’s costs of the appeal to this Court.

9    Since December 2017 the Applicant’s legal representatives have sought on a number of occasions to have the Applicant’s remitted appeal brought on for hearing in the Supreme Court of Nauru. Notwithstanding that remittal, the Supreme Court of Nauru neither has heard the Applicant’s remitted appeal nor has it listed that proceeding for case management. Despite the Applicant’s several requests over some four years to have his remitted appeal dealt with according to law by the Supreme Court of Nauru neither he nor his lawyers have been favoured with any response.

10    On 25 February 2020, with no progress on his remitted appeal in prospect, the Applicant was brought from Nauru to Australia for a “temporary purpose” pursuant to s 198B(1) of the Migration Act. That sub-section provides:

An officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia.

11    Both parties accept that the Applicant thereupon also came within the definition of a “transitory person”: see s 5(1) of the Migration Act. The “temporary purpose” for which the Applicant was brought to Australia was for the Applicant’s medical treatment. The Applicant had been experiencing severe gastroenterological symptoms while in Nauru. Neither the genuineness of the Applicant’s then ill health nor of the Australian immigration officer’s identification of the “temporary purpose” for which the Applicant was brought to Australia is in contest in these proceedings.

12    Between the time of Applicant’s return to Australia for that temporary purpose and his commencement of these proceedings the Applicant received some limited medical attention. However he has yet to be examined by a specialist gastroenterologist. In consequence his underlying condition remains un-diagnosed.

13    In these proceedings, despite the lengthy delay in the Applicant being referred to a specialist, he accepts that his gastrointestinal issues have continued and that they need specialist attention which will be provided. The Applicant accepts that his medical treatment (for which purpose he had been brought to Australia) remains to be completed.

14    Notwithstanding on 18 December 2020 the Applicant’s legal representative filed a summons in the Supreme Court of Victoria whereby the Applicant applied for, inter alia, a writ of habeas corpus ad subjiciendum. Such a writ commands the release of a person held unlawfully. After hearing from the parties a judge of that court, Dixon J, ordered that the Applicant’s proceedings be transferred to the Federal Court of Australia (FCA) pursuant to s 5(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic).

15    The Applicant is presently detained at the Melbourne Immigration Transit Accommodation (MITA) in the custody of the First Respondent purportedly pursuant to s 189(1) of the Migration Act which is in the terms below:

If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person.

16    On 5 March 2021, Mortimer J in her Honour’s capacity as General Duty Judge gave directions for the conduct of the trial of the proceeding. The matter was heard by me on 23-24 March 2021.

The Transferred matter and jurisdiction

17    The Applicant’s case is that his detention pursuant to the Migration Act is unlawful. As noted above the Applicant commenced these proceedings originally in the Supreme Court of Victoria. It is uncontentious that as a superior court of general jurisdiction, the Supreme Court of Victoria possesses an inherent jurisdiction permitting it to command the immediate release of any person within Victoria who is shown to be illegally detained.

18    When the matter was first listed for case management, the Respondents applied for an order transferring the Applicant’s application to this Court. The Applicant resisted that course.

19    In argument before Dixon J in the Supreme Court of Victoria the Applicant submitted that the matter ought not to be cross-vested to the FCA. He submitted that while the Supreme Court of Victoria had an undoubted jurisdiction to issue a writ of habeas corpus ad subjiciendum, by contrast the FCA, as a court possessed of only a statutory jurisdiction having regard to s 476A of the Migration Act, lacked jurisdiction to make an order in the nature of habeas corpus if initiated, as his had been, by a “bare” application for such relief.

20    Dixon J rejected that submission: MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] VSC 68. His Honour concluded that it would be in the interests of justice that this matter be transferred to the FCA.

21    On 23 March 2021 when the Applicant’s transferred proceedings came before me for hearing, Mr Gilbert QC, the Applicant’s senior counsel, drew attention to the submissions the Applicant had advanced in the Supreme Court of Victoria. Mr Gilbert submitted it was for the Court to satisfy itself of its jurisdiction. I accept that to be so.

22    In that regard Mr Gilbert referred the Court to the Applicant’s written submissions as earlier filed in the Supreme Court of Victoria. Mr Tran, counsel for the Respondents, did likewise with respect to those made by the Respondents. Mr Tran also made oral submissions.

23    Having had the benefit of those submissions I am firmly of the opinion that Dixon J was correct to have held that this Court has jurisdiction and, subject to it not being satisfied of the lawfulness of the Applicant’s detention, to make orders in the nature of habeas corpus requiring his release. In that regard I accept the soundness of each of the propositions advanced by Mr Tran set out below:

    The FCA has original jurisdiction in any matter arising under any laws made by the Parliament by reason of s 39B(1)(c) of the Judiciary Act 1903;

    The controversy between the parties regarding the lawfulness or otherwise of the Applicant’s detention is a matter arising under a law made by the Parliament; it necessarily involves whether or not the Applicant’s present detention is authorised by reason of s 189 and s 196 of the Migration Act;

    The statutory jurisdiction of the FCA as provided for above is not excluded by reason of the operation s 476A(1) of the Migration Act. That provision applies only in so far as the subject matter it refers to is capable of being characterised as being “in relation to a migration decision”.

    That a claim for false imprisonment otherwise within jurisdiction under s 39B(1A)(c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) cannot be so characterised was authoritatively determined by a Full Court of the Federal Court of Australia in McHugh v Minister v Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223 (McHugh).

    If the Applicant succeeds in establishing that his detention is presently unlawful the FCA has power, pursuant to s 23 of the Federal Court Act, to make an order in the nature of habeas corpus to compel his immediate release.

24    The reasoning of Allsop CJ in McHugh at [15], cited by Mr Tran as authority for the penultimate dot point above, is within the ratio of that case. At [74] Besanko J expressly states his concurrence with the Chief Justice’s reasoning in that passage. The ratio so expressed is binding on me as a single judge of the Court.

25    Dixon J was therefore correct to have concluded that in the exercise of its jurisdiction this Court will have power to require the immediate release of the Applicant from his present detention were it to find that to be unlawful.

26    I find that the Court has jurisdiction in this matter.

The Application

27    It is uncontentious that the Applicant remains in immigration detention. What is in dispute is whether the acknowledged detention of the Applicant is lawful or unlawful.

28    This proceeding was commenced by summons in the Supreme Court of Victoria. In terms that summons seeks the issue of a writ of habeas corpus ad subjiciendum under r 57.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). There has been no application to amend. I proceeded on the basis, as both the Applicant and the Respondents submitted, that no amendment is required. Each accept that the substantive nature of the relief sought in the transferred proceeding is clearly identified. The hearing accordingly was conducted on the premise that notwithstanding the facial terms of the summons, the Applicant, having regard to his proceedings having been transferred to this Court, was seeking an order in the nature of habeas corpus commanding his immediate release from detention pursuant to s 23 of the Federal Court Act.

29    Mr Tran concedes that the burden of satisfying the Court of the lawfulness of the Applicant’s detention is upon the Minister and the Commonwealth. Mr Tran properly acknowledges that if the Respondents fail to establish a lawful premise for the Applicant’s detention, relief generally issues as of right.

The Facts

30    Before turning to the parties respective submissions with respect to the lawfulness or otherwise of the Applicant’s detention it is convenient first to say something about the facts relevant to their respective contentions. I need not delay long in that regard because few material facts are in dispute. None of the witnesses who gave evidence by affidavit on behalf of the respective parties were required for cross-examination. My introductory findings as set out at [1]-[16] derive from uncontentious evidence.

31    There is no dispute that having been taken to Australia, the Applicant was provided with only basic medical treatment for his ill health and he requires specialist attention.

32    It is uncontentious that there is no gastroenterologist specialist available in Nauru who could provide the Applicant with such specialist treatment. It is also uncontentious that he needs and will be provided with such treatment in Australia. Dr Rahman’s report in both regards is before the Court as Exhibit R3.

33    I turn now to the facts that underpin the Applicant’s application for relief. They too are largely uncontentious. The Respondents do not dispute that the Applicant fears that he will be seriously harmed if he is required to return to Nauru. In an (uncontested) affidavit affirmed 29 January 2021 (before the Court as Exhibit A3) the Applicant gave the following testimony:

6    On 31 July 2014, the Secretary determined that I was not owed protection obligations by Nauru. Now produced and shown to me and marked “IA-1” is a copy of the Secretary’s decision dated 17 July 2014.

7    The Secretary who made that decision was Lionel Aingimea. The same person was elected President of the Republic of Nauru in August 2019 for a three year term.

8    On 1 August 2014, I lodged an application for merits review by the Nauruan Refugee Status Review Tribunal (the Tribunal).

9     On 24 September 2014, the Tribunal conducted a hearing of my review application within the guarded fence of a Regional Processing Centre on Nauru. I was being detailed at that time still.

10    More than six years ago, the Tribunal affirmed the decision of the Secretary. Now produced and shown to me and marked “IA-2” is a copy of the Tribunal’s decision dated 29 December 2014.

Appeal to the Supreme Court of Nauru

11    On 24 April 2015, I filed a notice of appeal in the Supreme Court of Nauru concerning the Tribunal’s decision, without legal representation.

12     More than 4½ years ago, on 5 May 2016, my appeal was heard in the Supreme Court of Nauru for the first time. I was represented and by appeal relied upon two grounds – namely, that:

(a)    the Tribunal acted in a way that was in breach of the principles of natural justice, contrary to s 22(b) of the Refugees Convention Act 2012, by conducting its hearing when and at the place where I was unlawfully detained in breach of s5 of the Constitution of Nauru; and

(b)    the Tribunal’s hearing was unconstitutional because I was unlawfully detailed at that time.

13    On the morning of the hearing, Nauru, as the Respondent on the appeal, brought a motion to strike out those grounds, including on the basis that the Supreme Court of Nauru lacked jurisdiction to consider questions arising under the constitution of Nauru.

14    The Supreme Court of Nauru granted the motion with reasons to follow.

15    On 20 May 2016, the Supreme Court of Nauru gave reasons for granting the motion including because the Court lacked jurisdiction to consider the interpretation and effect of the Constitution of Nauru. Now produced and shown to me and marked “IA-3” is a copy of the Supreme Court’s reasons dated 20 May 2016.

16    On 17 June 2016, I applied for leave to appeal to the High Court in its (then) capacity as the final court of appeal of the Republic of Nauru.

17    On 16 December 2016, at the leave hearing, Nauru accepted that the Supreme Court’s reasoning adopting the submissions of Nauru was plainly wrong. In light of that assurance, the application for leave was refused by the High Court.

18    On 6 February 2017, I filed a notice of motion to reinstate the first two grounds.

19    On 7 February 2017, the Supreme Court of Nauru gave final judgment dismissing the first two grounds without mentioning the notice of motion to reinstate those grounds. This hearing was conducted in my absence and the absence of my legal representatives. Now produced and shown to me and marked “IA-4” is a copy of the Supreme Court’s decision dated 7 February 2017.

Successful appeal to the High Court of Australia

20    On 21 February 2017, I filed a notice of appeal in the High Court of Australia in its (then) capacity as the final court of appeal of the Republic of Nauru.

21    More than three years ago, the High Court allowed the appeal and remitted the matter back to the Supreme Court of Nauru of reconsideration according to law. Now produced and shown to me and marked “IA-5” is a copy of the High Court’s judgment and orders dated 13 December 2017.

Non-compliance with the High Court of Australia’s orders

22    The Supreme Court of Nauru is yet to hear or list the remitted proceeding, or make any orders in respect of it.

23    A week after the High Court’s judgment in my case, I instructed my lawyers to write to the Registrar of the Supreme Court of Nauru seeking a hearing timetable for my case, and noting that I sought to have it heard as soon as possible. Now produced and shown to me and marked “IA-6” is a copy of that email dated 20 December 2017.

24    On 15 June2018, absent orders, I filed a further amended notice of appeal and written submissions in support. Now produced and shown to me and marked “IA-7” is a copy of the further amended notice of appeal and written submissions dated 15 June 2018.

25    I also filed a sworn statement in the Supreme Court which explained the harsh detention conditions under which I was being held at the time of the only of that sworn statement dated 8 June 2018. That statement is true and correct.

26    On 15 June 2018, I also instructed my lawyers to write to the Supreme Court of Nauru seeking a hearing for the proceeding remitted by the High Court. No one from the Supreme Court responded. Now produced and shown to me and marked “IA-9” is a copy of that emailed letter dated 15 June 2018.

27    On 27 September 2018, I instructed my lawyers to write again to the Registrar of the Supreme Court of Nauru seeking a hearing for the proceeding remitted by the High Court. I am informed and believe that the Registrar responded on the same day with the following as the whole of his response:

    Dear Tamsin

    I am finally able to get what case you were after please advise when were the documents filed and which documents were filed in the registry and was it issued.

My lawyer responded on that day with the requested documents. There was no response from the Registrar to that last email. Now produced and shown to me and marked “IA-10” is a copy of the exchange of emails dated 27 September 2018.

28    On 4 February 2019, absent orders, Nauru, as Respondent to the remitted appeal, filed written submissions in response. Now produced and shown to me and marked “IA-11” is a copy of the respondent’s written submissions dated 4 February 2019.

29    In January 2019, my lawyers applied for visas to re-/enter Nauru to appear at the appeal hearing. That visa application was refused to the only one of my lawyers who was already admitted to practice in Nauru. The other member of counsel and solicitor, who were not admitted in Nauru, were granted visas on to attend a preliminary hearing in respect of a proceeding I brought seeking damages on the basis that my detention was unconstitutional, among other things.

30    on 23 May 2019, the appeal was listed for hearing before the Supreme Court of Nauru. However, I am informed and believe that no Supreme Court judge was in Nauru to hear the appeal on 23 May 2019. In addition, the visa applications for my lawyers to attend that hearing had received no response by the hearing date.

34    Those passages are relied upon by the Applicant as going not only to the existence of his subjective fear but also as to his fear being objectively well founded. The Applicant not having been cross-examined the Court is entitled to accept the truth of the Applicant’s account.

35    I now turn to the only underlying facts in dispute. In seeking to buttress his contention that if returned to Nauru his circumstances would be such as to engage Australia’s protection obligations (assuming they exist in the present context), the Applicant seeks to rely on an affidavit of his solicitor Mr David Kazatsky, deposed to on 29 January 2012 (received by the Court ‘de bene esse’ as Exhibit A4). The Respondents objected to the admissibility of paragraphs 4-9 and exhibits DIK-3 to DIK-20 of that affidavit. Those paragraphs and annexures would put into evidence various reports of the US Department of State, the Refugee Council of Australia, Médecins Sans Frontières, the UNHCR as well as a number of other similar entities, and a report of the Senate Legal and Constitutional References Committee all in reference to the conditions those taken to Nauru for regional processing country had been subjected to.

36    In respect of all of those reports objection that is taken is that they contain only inadmissible hearsay. In respect of the Senate References Committee report objection is also taken on the ground of parliamentary privilege. As the Respondents’ objections were taken without prior notice to the Applicant’s legal representatives I gave leave to the parties to file submissions as to the intended evidence’s admissibility. I will return to that in due course.

37    Having set the background I turn to the parties’ respective submissions.

The Applicant’s Submissions

38    The Applicant submits that the decision of the High Court in Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 (Plaintiff S4/2014) stands for the unqualified proposition that, consistently with Australian constitutional imperatives, there are, and can be only, three circumstances in which immigration detention is lawful. Mr Gilbert submits that conclusion is compelled by the reasoning of French CJ, Hayne, Crennan, Kiefel and Keane JJ as below:

[26]    Importantly, [in Chu Keng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1] the Court further held that the provisions of the Act which then authorised mandatory detention of certain aliens were valid laws if the detention which those laws required and authorised was limited to what was reasonably capable of being seen as necessary for the purposes of deportation or to enable an application for permission to enter and remain in Australia to be made and considered. It follows that detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected. And it further follows that, when describing and justifying detention as being under and for the purposes of the Act, it will always be necessary to identify the purpose for the detention. Lawfully, that purpose can only be one of three purposes: the purpose of removal from Australia; the purpose of receiving, investigating and determining an application for a visa permitting the alien to enter and remain in Australia; or, in a case such as the present, the purpose of determining whether to permit a valid application for a visa…

[27]     Because detention under the Act can only be for the purposes identified, the purposes must be pursued and carried into effect as soon as reasonably practicable. That conclusion follows from the purposive nature of detention under the Act. But it is a conclusion that is reinforced by consideration of the text and structure of the Act, understood against the background of fundamental principle.

[28]    The duration of any form of detention, and thus its lawfulness, must be capable of being determined at any time and from time to time. Otherwise, the lawfulness of the detention could not be determined and enforced by the courts, and, ultimately, by this Court. And because immigration detention is not discretionary, but is an incident of the execution of particular powers of the Executive, it must serve the purposes of the Act and its duration must be fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes…

(Citations omitted and the Applicant’s emphasis added)

39    Mr Gilbert submits that in the facts of this case the purpose of the Applicant’s detention at MITA can be presently lawful if but only if it is for the purpose of effecting his removal to Nauru. That remains so notwithstanding that the Applicant does not dispute that he continues to need the medical treatment which was the “temporary purpose” in respect of which he was brought to Australia as a transitory person pursuant to s 198B(1) of the Migration Act. He submits that nothing in that proposition is inconsistent with the decision of the High Court in Plaintiff M96A/2016 v Commonwealth [2017] 261 CLR 582 (Plaintiff M96A/2016).

40    Mr Gilbert submits that the Court should reject that the Applicant’s present detention is for the purpose of his being returned to Nauru because in the actual factual circumstances of this case the Court would conclude that there are “immovable barriers” to his removal to that country.

41    Mr Gilbert submits that “[i]n the present case, [the Respondents] cannot establish that [the Applicant’s] removal to Nauru is reasonably practicable.” The Applicant’s written submissions provide two reasons, the acceptance of either of which, it is submitted, would justify the conclusion that removal is not reasonably practicable:

(a)     removal to Nauru must be for the purposes of regional processing. However, here, the processing of the [Applicant’s] claims for protection has not occurred. Instead, the Supreme Court of Nauru has failed to take any steps to hear and determine his appeal according to law. For more than three years, it has ignored an order of the High Court of Australia requiring it to do so; and

(b)    returning the [Applicant] to Nauru would be in breach of Australia’s non-refoulement obligations, in that the [Applicant] claims to fear harm at the hands of local residents in Nauru because he is an asylum seeker, where the government of Nauru is unwilling or unable to provide him effective protection.

(footnotes omitted)

42    Mr Gilbert submits that, “it is plain that the [Applicant] could not be said to be the subject of any ‘processing’ in Nauru: warehousing is not processing”. In that regard the Applicant’s written submissions are:

44.    With that purpose [the completion of his application for protection] not having occurred in his case (or, at least, a reasonable time for its fulfilment having passed long ago), the power in s 198AHA is exhausted and the Commonwealth has lost is ‘capacity and authority’ to restrain his liberty in aid of ‘regional processing’. Given that the only purpose of his detention is removal to a regional processing country, this means in turn that that purpose is not capable of fulfilment. His detention is therefore not lawful. He must be released.

45.    Alternatively, if the Plaintiff’s detention is solely pursuant to s 189 and is for the purpose of removal to a regional processing country under s 198AD and 198AH (as the Defendants submit), then that removal will only be lawful if it is for the purpose of regional processing. That is, the ultimate purpose of his detention – being detention pending removal to regional processing – is not capable of fulfilment in the circumstances of this case. As the facts outlined above make plain, the regional processing country has no apparent interest in processing the Plaintiff’s claims according to law. He cannot be detained for the purpose of removal to regional processing when the regional processing country has lost interest in processing, or capacity to process, his case. For this alternative but related reason, his continued detention is also unlawful and he must be released. Or, in the Plaintiff’s words, he should no longer ‘feel like he is in a cage with no freedom’.

43    In oral argument Mr Gilbert made it clear the Applicant takes no issue with the Minister having lawfully designated Nauru as a regional processing country pursuant to s 198AB of the Migration Act. However, he submits that in the particular and unique facts of the Applicant’s case, having regard to the effluxion of time and the failure of the Supreme Court of Nauru to have taken any step to rehear the Applicant’s appeal as was remitted to it in December 2017 by the High Court of Australia in its then Nauruan jurisdiction, this Court would conclude that Nauru has ceased to be a regional processing country in the Applicant’s specific instance:

…its not just being sent to regional processing, its being sent to regional processing for processing. So if the processing has stopped then the purpose of his removal can’t be achieved. So that we say is an entry point to challenge his detention now at this minute.

44    I interpolate that Mr Tran acknowledges that the Applicant’s remitted review has not been processed by the Supreme Court of Nauru despite the passage of some four years. Mr Tran advances no submission to throw light on that circumstance nor does he identify any reason for this Court to proceed on the basis that there is a real prospect that the Applicant’s remitted appeal will be listed for hearing in the future.

45    In so far as the duty in s 198AD(2) of the Migration Act refers to the duty of an officer to take an unauthorised maritime arrival to a “regional processing country”, Mr Gilbert does not dispute that Papua New Guinea also has been so designated by the Minister pursuant to s 198AB of the Migration Act. He accepts that the Applicant has not made any non-refoulement claim against that country. Mr Gilbert submits that such a prospect is not realistically available:

…even though there may be a designation, as a matter of evidence, we do not know whether Papua New Guinea is, in fact, continuing to receive people from Australia as part of the regional processing scheme. And following the closure of Manus Island certainly I had thought that Papua New Guinea had ceased its involvement in the program, but was dealing with those who remain…so there is just no evidence…

Just to end the reference to PNG, its somehow suggested…that after some seven and a half years of regional processing on Nauru, somehow he could be sent to Papua New Guinea and who knows what will happen there. Does he start the whole process of regional processing again…

46    The Applicant’s written submissions then turn to the second limb of his contentions as are referred to at [43] above. Under the heading “Non-refoulement obligations qualify the power to remove under s 198AD”, he submits that:

46.    As previously indicated, the power to remove the Plaintiff to Nauru is governed by s 198AD. Unlike removal under s 198, removal under s 198AD is only permissible where doing so would not be in breach of Australia’s non-refoulement obligations as defined in s 5 of the Act.

47    Mr Gilbert further developed that proposition in oral argument. He submits that as defined by s 5(1) of the Migration Act, Australia’s non-refoulement obligations include those arising because Australia is a party to the Refugee Convention and/or the International Covenant on Civil and Political Rights, opened for signature on 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR) as well as any obligations accorded by customary international law as are of a similar kind. He submits the Respondents are not entitled to treat the prospect that the Appellant might be refouled as legally irrelevant to the otherwise duty (of the relevant officer of the First Respondent) to return any unauthorised maritime arrival to a regional processing country once he or she no longer needs to remain in Australia for whatever temporary purpose he or she has been brought here for. Section 197C of the Migration Act, which refers to Australia’s non-refoulement obligations being irrelevant in respect of an officer’s duty to remove a non-citizen for the purposes of s 198 of the Migration Act, has no work to do in respect of the intended taking of an unauthorised maritime arrival to a regional processing country pursuant to s 198AD.

48    Mr Gilbert submits that read in the context of legislation which not only recognises Australia’s non-refoulement obligations but also prescribes in detail when such obligations must be put aside by an officer, the omission in s 197C of a reference to s 198AD is not open to be dismissed as a mere drafting oversight.

49    Mr Gilbert submits that the lawfulness of a person’s imprisonment or detention must be capable of being determined at any point of time. Detention beyond the time when a purpose is being lawfully pursued can be the subject of relief in the nature of habeas corpus. In the facts before it, the Court should find the Applicant’s detention has become and is presently unlawful: Plaintiff S4/2014; Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53; 251 CLR 322.

50    Mr Gilbert submits the Court should proceed on the basis as set out in the Applicant’s written submissions as follows:

21.     The power to detain the [Applicant] under s 189 of the Act only subsists while his detention serves a statutory purpose. Detention purportedly pursuant to s 189 of the Act amounts to false imprisonment as soon as the purpose of the detention is not one that is capable of fulfilment; or is not being pursued and carried into effect as soon as reasonably practicable. The detention then ceases to be pursuant to the Act, and thereby becomes unlawful. At that point, the detention by the Executive becomes an ‘abdication or abandonment of the statutory function’. In such circumstances, a writ of habeas corpus or relief in that nature can issue, and a false imprisonment claim can also be sustained. That time has been reached in the [Applicant’s] case…

51    Finally, the Applicant submits that the Court should reject the Respondents’ submission (set out below at [58]) that Bromberg J’s reasoning in AJL20 v Commonwealth of Australia [2020] FCA 1305 (AJL20) ought not to be followed out of comity on the basis that it is “plainly wrong”. Mr Gilbert submits that the gravamen of the Respondent’s submission is that his Honour had given no consideration to s 196(3) of the Migration Act, the terms of which are as follows:

(3)     To avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non citizen from detention (otherwise than as referred to in paragraph (1)(a), (aa) or (b)) unless the non citizen has been granted a visa.

52    Mr Gilbert submits that applications for writs of habeas corpus (or orders in their nature) must always be dealt with urgently (and are) because they concern ‘a grave infringement of the most elementary and important of all common law rights.’ Properly understood, Mr Gilbert submits to the effect that s 196(3) does not, cannot, and is not open to be construed as purporting to, prevent a Court making an order in the nature of habeas corpus once the Court has determined that a person’s detention is unlawful. So understood the “per incuriam” error Bromberg J is asserted to have made neither undermines the authority of his reasoning nor provides a basis for this Court to proceed on the premise that the conclusion his Honour reached and the decision his Honour made was “plainly wrong”. I should proceed on the basis that AJL20, in so far as it ordered the release of a person the Court had found to be unlawfully detained, was correctly decided.

The Respondents’ Submissions

53    The Respondents’ first principal submission is that the Applicant’s present detention is lawful under s 189(1) of the Migration Act. Mr Tran acknowledges that the officer detaining a person must hold the requisite state of mind required by that provision. Mr Tran submits that the Court is entitled to find that the officer responsible for the Applicant’s detention, Mr Gregory, has the requisite state of mind and holds such an opinion. In that regard Mr Tran refers to Mr Gregory’s affidavit dated 22 January 2021. At [9]-[10] Mr Gregory deposes that because the Applicant is an unlawful non-citizen who is not an Australian Aboriginal, he as the relevant Commonwealth officer is required by s 189(1) of the Migration Act to detain or cause the Applicant to be detained in immigration detention, and it is upon that basis he has arranged for the Applicant to be detained at MITA. Mr Tran submits that it not being in dispute that the Applicant is other than an unlawful non-citizen and not an Australian Aboriginal, the officer’s holding of the requisite opinion satisfies the condition of lawful detention under s 189.

54    The second principal submission the Respondents make is that the occasion which may later require the Applicant to be returned to a regional processing country has yet to arise. Mr Tran submits that in the instance of an unauthorised maritime arrival brought back to Australia from a regional processing country for a temporary purpose, the overarching duty of an officer pursuant to s 198AD(2) to take that person to a regional processing country is put in suspension, so as long as that person needs to be in Australia for the fulfilment of that temporary purpose. Thus it is submitted “there can be no question about the lawfulness of detention if [the Applicant] ‘needs to be in Australia for the temporary purpose’ within the meaning of s 198AH(1A)(c) (see also s 198(1A)).”

55    Because, for the reasons later stated, I accept that submission I need not set out Mr Tran’s further elaboration of it. To the extent necessary I refer to the relevant cases and statutory provisions cited by Mr Tran later in my reasons. I interpolate by repetition that Mr Gilbert accepts that the Applicant still needs to be in Australia for the temporary purpose in respect of which he was brought to this country: that is to receive medical treatment in relation to his gastroenterological issues.

56    Assuming (while rejecting as counter-factual) that the Applicant no longer needs to remain in Australia for the temporary purpose of medical treatment, the Respondents’ third principle submission is that the Applicant will be required to be taken to a regional processing country under s 198AD of the Migration Act, as applied by s 198AH of the Migration Act once the temporary purpose of his medical treatment has been discharged. Pending his being taken to a regional processing country, the Applicant’s continued detention would continue to be lawful. I interpolate that the Applicant does not put in issue the proposition that Nauru would accept the Applicant being returned.

57    The Respondent submits that the scheme of the Act requires the conclusion that any claims the Applicant might seek to advance that he is owed non-refoulement obligations with respect to Nauru could not stand in the way of his being taken to Nauru pursuant to s 198AD of the Migration Act.

58    Mr Tran contingently and prophylactically submits that if the Court was to reject the Respondents second and third submissions and was to find that there is a legal duty on the Minister to give consideration to the Applicant’s protection claims, such that otherwise his detention would be unlawful, the undisputed evidence before the Court is that the Respondents would ensure that the Applicant’s claims for protection would be processed before any steps were taken to return him to Nauru. In that circumstance the Applicant’s detention would nonetheless remain lawful. The Applicant’s detention for the period required to receive, investigate and determine his application for the right to remain in Australia would be lawful: Plaintiff S4/2014 at [26].

59    Finally, despite perhaps some awkwardness of consistency with their submissions with respect to jurisdiction, the Respondents’ fourth principal submission is that Court lacks the power to order the Applicant’s release into the community. The Respondents’ written submissions in that regard are as follows:

32.    In AJL20 v Commonwealth (AJL20), the Federal Court held that a person who was detained under s 189 of the Act in circumstances where the duty to remove under s 198 had not been complied with was unlawfully detained and could be released by an order in the nature of habeas corpus. [The Respondents] submit that AJL20 is plainly wrong in so far as it held that release into the community was an available remedy. The proper order is an order in the nature of mandamus compelling compliance with the duty to remove.

33.    AJL20 is plainly wrong because it was per incuriam; it did not deal with s 196(3). That sub-section expressly prohibits release into the community. It is a provision which Keane J and Edelman J have referred to in 2020 without any suggestion that it operates otherwise than in accordance with its terms. Crennan J also referred to it in 2011. It has also been referred to in accordance with its terms by judges of the Federal Court.

34.    The only way that a Court could order that a person be released into the community in the face of s 196(3) is if that clause is invalid or if it is read down. In that regard, a reading down was proposed by Gleeson CJ and Gummow J in Al-Kateb v Godwin. Gleeson CJ said:

The word “detention” in sub-s (3) means “lawful detention”. If it were otherwise, the provision would constitute an unconstitutional interference with judicial power. Parliament cannot deprive the courts of the power to order the release of a person from unlawful detention. Consequently, it is the meaning of sub-s (1), understood in its constitutional and statutory context, that is in question.

35.     Gummow J said:

Section 196(3), consistently with the reasoning in Lim of Mason CJ, with whom Toohey J agreed, and of McHugh J, should be construed as applying only to those who are held in lawful detention pursuant to the Act. Habeas corpus will secure the release from detention of a person no longer in such lawful detention.

36.    Mortimer J cited Gleeson CJ in McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. But her Honour was concerned with a case where it was argued that the person might not be an unlawful non-citizen at all. That is not this case.

37.    And in any event, ultimately, these views did not command majority support. In Al-Kateb, McHugh J in the majority expressly said to the contrary. Their views are also inconsistent with the views of Crennan J, Keane J and Edelman J.

38.    Further, Gummow J’s dictum overlooked that s 196(3) is unlike the provision read down or held invalid in Lim (s 54R). Section 54R provided that “[a] court is not to order the release from custody of a designated person” in a context where s 54L treated removal as a species of release (such that s 54R in terms prohibited removal), and where it was clearly possible for circumstances to arise where a “designated person” was entitled not to be detained. Section 196(3) does not do that. It explicitly contemplates that a court might order “release” for the purpose of s 196(1), that is removal. And meanwhile, every “unlawful non-citizen” (as defined in s 13) is required by the terms of ss 189 and 196 to be and remain detained. Subsection (3) therefore does not require reading down.

(Footnotes omitted)

Consideration

60    In Plaintiff M96A/2016, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ summarised the scheme of the Migration Act as it applied in relation to persons in a like position to that of the Applicant. Neither party submits that any subsequent amendments to the Migration Act have affected the architecture of the scheme. It is convenient therefore to adopt their Honours’ summary of the structure of the scheme as the initial foundation for the Court’s consideration of the questions arising in this proceeding.

8     …The provisions of the Act which are of particular relevance to this case are those which are concerned with the plaintiffs as "transitory persons".

9 When the plaintiffs arrived at Christmas Island, they were classified as "unauthorised maritime arrivals", as defined in s 5AA of the Act. This was because they entered Australia by sea at an "excised offshore place" (within the meaning in s 5(1), which includes Christmas Island), they were "unlawful non-citizens" (within the meaning in s 14, read with s 13), and they were not "excluded maritime arrivals" (within the meaning in s 5AA(3)).

10 Divisions 7 and 8 of Pt 2 of the Act comprise, respectively, ss 188 to 197AG and ss 197C to 199. It is the provisions of those two Divisions which have governed the manner of treatment of the plaintiffs. The two Divisions are respectively entitled "Detention of unlawful non-citizens" and "Removal of unlawful non-citizens etc".

11 When the plaintiffs arrived at Christmas Island, they were detained under s 189(3) of the Act. That sub-section provides, subject to exceptions which are not presently relevant, that an officer (as defined) must detain a person who is in an excised offshore place if the officer knows or reasonably suspects that the person is an unlawful non-citizen. Section 198AD(2) of the Act then provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom the section applies from Australia to a regional processing country. Since the plaintiffs were classified as "unauthorised maritime arrivals" they were taken to Nauru, which is a regional processing country.

12 Section 198B of the Act provides that an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. The plaintiffs fell within the definition of "transitory person" in s 5(1) because they were people who had been taken to a regional processing country under s 198AD. Examples of the "exceptional situations" where a temporary purpose might lead to a transitory person being brought to Australia were given in the Revised Explanatory Memorandum to the legislation which introduced s 198B of the Act. Those examples were8: medical treatment for a condition which cannot be adequately treated in the place where the person has been taken; trials at which the person is to provide evidence in the prosecution of people smugglers; or transit through Australia to a country of origin or to a third country. In this case the temporary purpose was medical treatment.

13 The power to bring a transitory person to Australia for a temporary purpose under s 198B is an exception to the prohibition upon a non-citizen travelling to Australia "without a visa that is in effect": s 42(1), (2A)(ca). Unless the Minister determined otherwise, if the plaintiffs made an application for a visa while in Australia, that application would not be valid: s 46B(1)-(2).

14 Division 8 of Pt 2 of the Act creates a regime for removal of persons from Australia. Two of the central provisions in this regime which are relevant to transitory persons are ss 198AD and 198. Section 198AD(2) provides that an officer "must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country". Section 198(1) provides that an officer must remove an unlawful non-citizen as soon as reasonably practicable when that person "asks the Minister, in writing, to be so removed". These two provisions do not have concurrent operation because s 198AD applies to unauthorised maritime arrivals, and s 198(11) provides that s 198 does not apply to an unauthorised maritime arrival to whom s 198AD applies. In other words, the provisions of s 198 will only apply where s 198AD does not apply.

15     Section 198AD of the Act applies, with various qualifications, to unauthorised maritime arrivals who are detained under s 189. Section 198AH lists requirements that must be satisfied before s 198AD will apply to a transitory person. The requirements include that the transitory person (i) is an unauthorised maritime arrival who has been brought to Australia from a regional processing country under s 198B for a temporary purpose (s 198AH(1A)(a)); (ii) is detained under s 189 (s 198AH(1A)(b)); and (iii) no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved) (s 198AH(1A)(c)).

16     Section 198 will apply to a person who is an unlawful non-citizen within s 198 but not to an "unauthorised maritime arrival" within s 198AD. The category of unlawful non-citizens is broader than unauthorised maritime arrivals because, by ss 13 and 14 of the Act, an unlawful non-citizen is any non-citizen in the migration zone who does not hold a visa. However, as the plaintiffs were unauthorised maritime arrivals, the provisions of s 198 only apply to them where s 198AD does not apply. One circumstance where s 198AD will not apply is where a transitory person still needs to be in Australia for a temporary purpose. While that need to be in Australia is present, as it is for the plaintiffs on their pleaded case, s 198AD will not apply and the operation of s 198 is not excluded by s 198(11). Hence, while a person needs to be in Australia for a temporary purpose, the person can nevertheless request to be removed from Australia under s 198(1) of the Act. Contrary to the plaintiffs' submissions, there is nothing illogical about a construction which permits a person who is taken to Australia for a temporary purpose such as consensual medical treatment to request removal from Australia. As to the scope of s 198(1), and in circumstances where it does not affect the ultimate conclusion in this case, it is sufficient to proceed on the basis of the defendants' submission that s 198(1), properly construed by reference to its consensual character, would not permit removal of an unlawful non-citizen to a place contrary to his or her wishes.

17 Apart from where a transitory person needs to be in Australia, there are other circumstances in which s 198AD will not apply. In broad terms, these include where there is no regional processing country (s 198AF); where a regional processing country has advised an officer in writing that the country will not accept the unauthorised maritime arrival (s 198AG); or where the Minister determines that s 198AD does not apply (s 198AE).

18 In every circumstance where s 198AD does not apply and where an unlawful non-citizen is brought to Australia for a temporary purpose, s 198(1A) imposes an obligation upon an officer to "remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for [the temporary] purpose (whether or not the purpose has been achieved)". The combination of ss 198(1A) and 198AD(2) means that any transitory person who is brought to Australia for a temporary purpose must be removed as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved). As we explain below, the Act has the effect that the person will be kept in immigration detention whilst in Australia (s 189). That immigration detention must continue until the time of removal from Australia under s 198(1A) (s 196(1)(a)), or until the commencement of acts involving the process of removal from Australia to a regional processing country under s 198AD(3) (s 196(1)(aa)).

(footnotes omitted)

61    In respect of the constitutional validity of that scheme the plurality’s reasons as is directly relevant to this proceeding was as follows:

22 As the plaintiffs accepted in oral submissions, the purpose of immigration detention is assessed objectively by reference to all of the circumstances. In Plaintiff S4/2014 v Minister for Immigration and Border Protection14, this Court said that "detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected". The Court added that the only lawful purposes of detention of non-citizens are: (i) removal from Australia; (ii) receiving, investigating, and determining an application for a visa permitting the alien to enter and remain in Australia; or (iii) determining whether to permit a valid application for a visa. It is sufficient to resolve this case on this basis, and unnecessary to address two further submissions made by the defendants. One of those submissions was that the list of permissible purposes of executive detention of non-citizens within Ch III of the Constitution is not closed and might extend beyond the three purposes identified above. The other was that the relevant distinction to be employed in order to determine whether a law authorising or requiring the Executive to detain non-citizens in custody is consistent with Ch III of the Constitution is a distinction between punitive and non-punitive purposes or, perhaps more accurately, between the purposes of punishment and other purposes.

23 The plaintiffs submitted that their detention in Australia was not for any of the three purposes identified above, each of which is connected with the executive power to permit non-citizens to enter and remain in Australia. They also submitted, correctly, that they have no right to make an application for a visa whilst they are in Australia. Hence, they submitted, they cannot be detained for purposes (ii) or (iii). They also submitted that while they need to be in Australia for the temporary purpose, their detention cannot be said to be for the purpose of removal from Australia (purpose (i)). Instead, they submitted, the purpose of their detention was the temporary purpose for which they were brought to Australia.

24 The plaintiffs' submission that their detention is for an impermissible purpose must be rejected. The temporary purpose for which a transitory person needs to be in Australia is not the same as the purpose for which that person is detained. It is unnecessary to determine whether the temporary purpose under the Act is a subjective purpose of the officers or whether it is a purpose which is objectively ascertained from the circumstances. In either case, that temporary purpose is different from the purpose of detention.

25 One circumstance which can illustrate the difference between the purpose of bringing a transitory person to Australia and the purpose of detention is where a transitory person is brought to Australia for medical treatment. The purpose of detention is not for medical treatment. Detention might even be antithetical to the medical treatment for which the person is brought to Australia.

…

30     The plaintiffs submitted that the period of detention of transitory persons brought to Australia under s 198B is governed only by the question whether and when the person "no longer needs to be in Australia" for the relevant purpose and that this invalidated the detention. This was said to be for two reasons: first, because the period of time for detention is not readily capable of objective determination by a court at any time, and from time to time; and secondly, because the temporal limits are not connected with the limited permissible purposes of administrative detention such that the power to detain is not unconstrained.

31 The first of these two alleged reasons for invalidity misunderstands the requirement that the duration of any form of detention must be capable of being determined at any time, and from time to time. The requirement, reinforced by the reference in Plaintiff S4/2014 v Minister for Immigration and Border Protection to the remarks of the Lord Chancellor in Crowley's Case about the need for the writ of habeas corpus ad subjiciendum, is that there must be objectively determinable criteria for detention. In other words, Parliament cannot avoid judicial scrutiny of the legality of detention by criteria which are too vague to be capable of objective determination. This would include an attempt to make the length of detention at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive.

32 The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions explained above are met. One precondition is that detention in Australia will come to an end under s 198(1) as soon as reasonably practicable after the transitory person asks the Minister, in writing, to be removed from Australia. Another precondition is that the person no longer needs to be in Australia for the temporary purpose. This precondition arises from the operation of either s 198(1A), or s 198AD(2) read with s 198AH(1A)(c). As we have explained, it is unnecessary to determine whether the criterion by which this precondition is to be assessed is whether the need still objectively exists or whether an officer has formed a genuine opinion that the person no longer needs to be in Australia for the temporary purpose. The plaintiffs did not submit that there would be any difference to validity based upon which construction was correct.

33 The second reason why the plaintiffs alleged that the duration of detention led to invalidity was also based upon a misconception. The plaintiffs' submission that the temporal limits of detention are not connected with the limited permissible purposes of administrative detention assumed that the purpose of administrative detention in Australia was for medical treatment. Alternatively, the submission assumed that if the purpose of administrative detention was for removal it would be unlawful for the duration of detention to be predicated not on the effectuation of removal itself, but on an apparently unrelated factum: the need to be in Australia for the medical treatment. As we have explained above, the detention was for the purpose of removal from Australia when preconditions are met, including where there is no longer a need for the transitory person to be in Australia for the temporary purpose. The detention does not become an exercise of judicial power merely because the precondition, and hence the period of detention, is determined by matters beyond the control of the Executive. This will frequently be the case where, for instance, questions arise as to whether it is reasonably practicable to remove a person from Australia.

(footnotes omitted)

62    In this proceeding the Respondents do not submit, as they did in Plaintiff M96A/2016, that the list of permissible purposes of executive detention might extend beyond the three lawful purposes identified in Plaintiff S4/2014. I therefore proceed on the basis that Mr Gilbert is correct to submit that this Court will be required to conclude that the Applicant’s present detention is unlawful unless, at this point of time, his detention can properly be characterised as being for the purpose of securing him to be available to be taken to a regional processing country.

63    The critical question therefore is whether, in circumstances in which it is claimed that there is no realistic prospect that the Applicant will be able to be taken to a regional processing country once his need to be in Australia for the temporary purpose for which he has been brought here comes to an end, but before it has, whether the Applicant’s continued detention before the deferred duty to take him to such a regional processing country arises can continue to be so characterised.

64    Albeit with some hesitation, I accept it can be.

65    I will expand on my reasons for having reached that conclusion later but before I turn to that I should interpolate that I accept the submission advanced by the Applicant that he is entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru. I accept that as defined by s 5(1) of the Migration Act, Australia’s non-refoulement obligations include those arising because Australia is a party to the Refugee Convention and/or the ICCPR as well as any obligations accorded by customary international law as are of a similar kind: Ibrahim v Minister for Home Affairs [2019] FCAFC 89

66    Those obligations extend to Nauru as they do to any other nation. I record that I am entirely unpersuaded of the submission the Respondents advanced that the scheme of the Migration Act requires a conclusion that any claims the Applicant might seek to advance that he is owed non-refoulement obligations with respect to Nauru could not stand in the way of his being taken to Nauru pursuant to s 198AD of the Migration Act. Having had the benefit of full argument on the subject, I am satisfied that the Applicant’s submission must be accepted that the omission in s 197C of the Migration Act of a reference to s 198AD is not open to be dismissed as a mere drafting oversight. That is so notwithstanding the Migration Act does not provide a statutory mechanism to determine such a claim. That the need to do so was not anticipated is hardly surprising. I take it to be a matter of common knowledge within the meaning of s 144 of the Evidence Act 1995 (Cth) that the large influx of unauthorised maritime arrivals which prompted the passage of Part 2 Division 8 Subdivision B of the Migration Act did not include those fleeing from either of the two countries later designated as regional processing countries. That a statutory mechanism has not been provided for does not mean the right to have such a claim determined does not exist. The proposition that an assessment of the Applicant’s claims would be capable of being administratively facilitated if required was the foundation premise of the Respondents’ submission referred to at [58] above.

67    That stated I return to why I am persuaded that the Respondent’s second primary submission is to be accepted.

68    It is uncontentious that the purpose of immigration detention is to be assessed objectively by reference to all of the circumstances. The objective circumstances as revealed in these proceedings reflect badly on the want of urgency of those who, in the past three years, were responsible for the Applicant’s medical treatment while in Australia for that temporary purpose. It is not in dispute that although the Applicant was provided with some basic medical treatment, his underlying condition was never investigated by a specialist and he remains yet to be fully treated.

69    That acknowledged the Applicant does not dispute that he presently remains in need of medical treatment for his gastrointestinal issues. Mr Gilbert accepts that the temporary purpose for which he was brought to Australia remains to be satisfied. It is not suggested that the specialist treatment the Applicant requires will henceforth not be provided in a timely way.

70    Assessed objectively the temporary purpose for which the Applicant was brought to Australia remains presently operative.

71    In respect of the purpose for which the Applicant is presently detained I accept that too must be assessed objectively. However in that regard I accept Mr Tran’s submission that the reasoning of the plurality and that of Gageler J who concurred in the outcome but delivered separate reasons in Plaintiff M96A/2016 both support the second primary submission advanced by the Respondents.

72    Drawing on what the plurality states at [33], Mr Tran submits that “the duty to remove is only triggered after the temporary purpose is complete or when a request to remove has been made.” It is convenient therefore to set out that passage:

33    The second reason why the plaintiffs alleged that the duration of detention led to invalidity was also based upon a misconception. The plaintiffs' submission that the temporal limits of detention are not connected with the limited permissible purposes of administrative detention assumed that the purpose of administrative detention in Australia was for medical treatment. Alternatively, the submission assumed that if the purpose of administrative detention was for removal it would be unlawful for the duration of detention to be predicated not on the effectuation of removal itself, but on an apparently unrelated factum: the need to be in Australia for the medical treatment. As we have explained above, the detention was for the purpose of removal from Australia when preconditions are met, including where there is no longer a need for the transitory person to be in Australia for the temporary purpose. The detention does not become an exercise of judicial power merely because the precondition, and hence the period of detention, is determined by matters beyond the control of the Executive. This will frequently be the case where, for instance, questions arise as to whether it is reasonably practicable to remove a person from Australia.

73    Mr Tran’s submission is that that reasoning recognises that while the two purposes are not to be conflated, they are not unrelated. I accept that submission. On that basis I am entitled to accept that unless the precondition for the Applicant’s removal has been satisfied, in Mr Tran’s words “there is no extant duty to remove. It hasn’t been triggered. It’s in suspension…”.

74    Gageler J’s concurring but independently expressed reasoning is to the same effect:

38     …The question of whether the duty to remove is triggered is in that respect separate from, and anterior to, the question of what is required of an officer to remove the person from Australia as soon as reasonably practicable in the performance of the duty once triggered.

…

45 As to the second, the duration of the detention is capable of objective determination by a court at any time and from time to time. From the moment of the commencement of the detention under s 189, duration of the detention is made by s 196(1)(a) and (aa) to depend on performance of the duty to remove imposed by s 198(1A) or by s 198AD(2). Whether or not the duty to remove has been triggered from time to time turns under s 198(1A) or s 198AH(1A) on the objective question of whether the temporary purpose identified at the time of the person being brought to Australia under s 198B any longer exists. That is the question which, in the event of dispute, arises for the determination of a court.

75    I regard it as necessarily implicit in such reasoning that so long as that duty, in the language of the plurality, remains in suspension prior to “various preconditions [being] met”, the detention of a person in the position of the Applicant remains objectively for the purpose of securing his availability for later removal.

76    For the reasons given by the plurality at [32], the lawfulness of the Applicant’s detention while a transitory person in Australia for the temporary purpose for which he was brought into the country remains capable of being assessed as at any particular moment of time:

32 The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions explained above are met. One precondition is that detention in Australia will come to an end under s 198(1) as soon as reasonably practicable after the transitory person asks the Minister, in writing, to be removed from Australia. Another precondition is that the person no longer needs to be in Australia for the temporary purpose. This precondition arises from the operation of either s 198(1A), or s 198AD(2) read with s 198AH(1A)(c)…

77    I do not take those observations to confine the circumstances in which a temporary purpose as lawfully suspends the otherwise duty to remove might be brought to an end. But the contrary is the factual position in this proceeding and so long as the temporary purpose remains operative, the corollary is that the Applicant’s detention remains objectively for the purpose of his being later removed to a regional processing country.

78    I therefore accept Mr Tran’s second primary submission that there is a lawful basis for the Applicant’s present detention.

79    Subsequent to my preparing these reasons in draft and their proofing I have become aware of the decision of the Full Court in AOU21 v Minister for Home Affairs [2021] FCAFC 60. I am satisfied that although that judgment addresses similar circumstances they are not analogous and that there is nothing in the Full Court’s reasoning as would compel a different outcome in respect of the orders I will make.

80    It is unnecessary for the Court to resolve the dispute between the parties as to the admissibility of those parts of Mr Kazatsky’s affidavit to which objection was taken: see above at [35]. Neither do I need to make findings as to whether the Supreme Court of Nauru has demonstrated any final and conclusive disposition not to hear the Appellant’s remitted appeal such that his return for the processing of his claims would be a sham. Nor do I need to decide whether Papua New Guinea remains a potential receiving country in the alternative to Nauru. Any submitted for impediments to the Applicant’s removal are to be addressed, on the expiry of the temporary purpose, when the Applicant’s claims for protection with respect to potential refoulement become re-engaged. Upon the precondition for his removal having been satisfied such claims as he advances in respect of non-refoulement can be assessed and determined in the light of the actual circumstances applying at that time.

81    I refuse the order sought. Unless a different order is applied for within seven days of the publication of these reasons the Applicant is to pay the Respondents’ costs as agreed or in default of agreement, as taxed.

Associate:

Dated:    30 April 2021