Federal Court of Australia

FGS20 v Minister for Home Affairs [2021] FCA 874

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory relief sought in the applicants’ originating application filed on 16 July 2021 is refused.

2.    The first and second applicants pay the respondents’ costs of today.

3.    The applicants file and serve by 30 July 2021:

(a)    any amended originating application and amended statement of claim;

(b)    all evidence on which they rely; and

(c)    the application to appoint the first applicant as litigation representative of the second to sixth applicants, supported by an appropriate affidavit.

4.    The respondents file and serve by 13 August 2021:

(a)    their defence; and

(b)    their evidence.

5.    Reserve liberty to the parties to apply.

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

REASONS FOR JUDGMENT

(Revised from Transcript)

THAWLEY J:

1    These proceedings were commenced by the filing on 16 July 2021 of an originating application and statement of claim. Leaving costs aside, the final relief sought is that the Court grant a mandatory injunction against the first respondent and second respondent, identified as the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, to “provide administrative assistance and take necessary steps to facilitate the evacuation of the second to sixth applicants from Afghanistan”.

2    The grounds relied upon are as follows:

1.    The respondents owed a duty of care to the first applicant to limit the duration of the first applicant’s detention to that required for the purpose of removal of the applicants to PNG as soon as reasonably practicable from the time of the applicants’ written request of 20th April 2020, 7th December 2020, and 17th December 2020, to PNG.

2.    The Respondents owed a duty of care to the second to sixth applicants as members of the same family unit of the first applicant, who were and are dependent on his spousal and parental care and protection to not unreasonably deprive them of that protection.

3.    The duty of care was increased and of the nature of the refugee protection claims which were accepted in the course of regional processing, concerning the risks to the second to sixth applicants because of being members of the particular social group of members of the same family unit as the first applicant, an Afghan security official.

4.    The respondents’ failure to establish a system for the administration of requests of return by those brought to Australia under s 198B Migration Act 1958 (Cth) to regional processing countries, or to take steps to remove the applicant to PNG was in breach of the respondents’ duty of care to limit the first applicant’s detention.

5.    The respondent’s failure to limit the detention of the first applicant deprived the second to sixth applicants of the spousal and parental protection of the first applicant.

6.    Declaration that the respondent’s failure to limit the detention of the first applicant caused foreseeable harm to the second to sixth applicants by depriving them of the protection and assistance of the first applicant through deprivation of the opportunity for him to seek to obtain (1) their evacuation from Afghanistan; and (2) family reunion in PNG.

3    The originating application also sought the following interlocutory relief:

1.    Urgent interlocutory injunctions directed to the First and Second Respondents to provide administrative assistance and take necessary steps to facilitate the evacuation of the second to sixth applicants from Afghanistan

2.    That the first Applicant be appointed as litigation guardian for the third to sixth Applicants who are minor children of the first and second applicants.

4    The grounds for interlocutory relief are stated as follows:

1.    Afghanistan is currently at grave risk of falling to the Taliban

2.    The second to sixth applicants face a grave risk of being killed by the Taliban because of being family members of the first applicant.

5    By an interlocutory application filed on 22 July 2021, the respondents seek summary dismissal of the applicants’ proceeding and an order for costs against the first and second applicants. No costs order is sought against the third to sixth applicants, who are understood to be minor children.

Background

6    The first applicant arrived in Christmas Island by boat in 2013. He was transferred to Papua New Guinea in that year, and then transferred to Australia for the temporary purpose of receiving medical treatment during 2019. The first applicant made a written request for removal to Papua New Guinea in late 2020, thereby enlivening the removal obligation in s 198(1) of the Migration Act 1958 (Cth).

7    The first applicant has made subsequent requests for removal to Papua New Guinea. I understood it to be common ground that removal to Papua New Guinea has not been possible since March 2021 due to COVID-19-related issues. The first applicant has sought relief in the Federal Circuit Court in proceeding SYG2917/2020 including a declaration that his detention is unlawful and an order requiring his release from detention. That matter has been heard and the judgment is reserved and listed for delivery at 10am on 3 August 2021.

8    The respondents state that they have given an undertaking to the Federal Circuit Court not to take any steps to facilitate the removal of the first applicant until the delivery of judgment in the Federal Circuit Court proceeding. They say that this undertaking was given at the request of the first applicant. There is some dispute about what has occurred in this respect. On 2 June 2021, the Federal Circuit Court made a notation in the proceeding that:

The Court notes that the Minister has provided an undertaking not to remove the applicants from Australia in the matters in which judgment is currently reserved (listed in Annexure A to these orders [that Annexure including the first applicant’s case]) until judgment is delivered.

9    So far as the evidence discloses, it appears that the first applicant has consistently asked to be removed to Papua New Guinea. The undertaking referred to was given, as I understand it, in the context of a group of cases in which there had been a proposal to remove certain people to Nauru. The first applicant does not wish to be removed to Nauru. It is not clear, at least as the evidence presently stands, that the undertaking (or more particularly the first applicant’s alleged request for it) would reasonably have been understood as derogating from the first applicant’s request to be removed to Papua New Guinea or that the undertaking could not have been easily varied to permit the first applicant’s removal to some other destination.

10    The respondents contend that judgment should be given against the applicants because the Court should be satisfied that the applicants have no reasonable prospect of successfully prosecuting the proceeding – see: s 31A(2)-(4) of the Federal Court of Australia Act 1976 (Cth); r 26.01(1)(a) of the Federal Court Rules 2011 (Cth); Spencer v Commonwealth of Australia (2010) 241 CLR 118 at [23]-[25] per French CJ and Gummow J, [59]-[60] per Hayne, Crennan, Kiefel and Bell JJ; Shammas v Canberra Institute of Technology [2014] FCA 71 at [13] per Foster J; Payne v Davies [2019] FCA 1506 at [30] per Perry J.

11    It was submitted that none of the six grounds listed in the originating application reveals a clear cause of action. As to the first ground, the duty alleged and the harm claimed is unclear. The respondents noted that the statement of claim at [23] alleged that the harm arose only after the first applicant made a request for removal in late 2020 and that removal is presently not possible by reason of the undertaking given by the respondents at the request of the first applicant. I have made observations about the undertaking already.

12    The respondents observed that the second ground in the originating application claims that the respondents owe a duty of care to non-citizens resident in Afghanistan, which is a novel claim, and that no good basis had been identified for concluding that a duty exists or that it has been breached. The respondents submitted that the fifth and sixth grounds appear to repeat or extend this claim.

13    The third ground claims that the duty of care was “increased” by virtue of a status determination that took place in Papua New Guinea.

14    The respondents submitted that the applicants’ argument is not meaningfully set out in the statement of claim or otherwise revealed in the evidence.

15    The matter has come before me as duty judge. In all the circumstances, it seems to me that the application for summary dismissal should be dealt with in the ordinary course, rather than urgently. The matter has come on with a degree of urgency, and it may be that the applicants refine their case or wish to put on additional evidence. The Federal Circuit Court proceeding may be of relevance and it may be that the application for summary dismissal, if it is pursued, should be dealt with after judgment on 3 August 2021. In any event, that is a matter more appropriately addressed another day.

16    As to the claims for interlocutory relief, it does not appear to me to be appropriate to make the orders sought. The principles applicable to the granting of interlocutory relief may be briefly stated. There are two main inquiries. The first is whether the applicant has a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”; this does not mean that the applicant must establish that they are more probable than not to succeed at trial – see: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] per Gleeson CJ and Crennan J and [65] per Gummow and Hayne JJ. The second main inquiry is whether the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted: O'Neill at [65].

17    The two main inquiries cannot be conducted completely independently of each other, because “an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: – see: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 per Woodward J, Smithers and Sweeney JJ agreeing at 467 and 469 respectively.

18    The mandatory injunction which the applicants seek would be equivalent to granting the final relief sought in the originating application. Of itself that is not a bar to granting the relief. However, it is relief in a form which the Court would be unlikely to grant. There was little, if any, evidence substantiating the present position of the second to sixth applicants or what order of any utility might be made even if a lawful basis was established for making such an order. Nevertheless, I proceed on the basis that they are in Kabul and that they may well be at significant risk. The applicants submitted that the respondents owed a duty of care to provide administrative assistance in providing a pathway for the resettlement of the first applicant and that this duty of care extended to his family members. The duty was said to be breached by not returning the first applicant to Papua New Guinea when that was possible (which I understand to be before March 2021) and in not releasing the first applicant from detention in Australia. The first applicant says that, if he had been returned to Papua New Guinea, he would have taken steps to assist his family to go to Papua New Guinea. It was not clear what steps the first applicant could take in Australia if he were released in the community which he could not take in detention, although it should be accepted that he faces restrictions in detention which would not apply if he were not in detention. The question whether the first applicant’s detention is unlawful is the question which is before the Federal Circuit Court.

19    It was submitted that these matters were sufficient for this Court to order the respondents, by way of interlocutory relief, to take necessary steps to facilitate the evacuation of the second to sixth applicants from Afghanistan and, as I have said, to provide administrative assistance. I am not satisfied that a prima facie case has been established sufficient to grant the interlocutory relief. In reaching that conclusion I recognise that there are powerful considerations that weigh in the applicants’ favour on questions of balance of convenience. There are also powerful reasons relevant to the balance of convenience for declining to make an order in the form that the applicants seek, particularly in so far as that would require the respondents to take steps to evacuate the second to sixth respondents, an endeavour which might be expected to carry its own risks. The applicants’ legal representative declined an invitation to frame the relief differently or more precisely, stating instead that it should be provided “forthwith”.

20    The evidence did not address the various matters required for the appointment of the first applicant as litigation representative. Whilst that matter is unlikely ultimately to be an issue, there is no reason to grant the relief urgently without following the usual procedures.

21    It follows that I decline to grant the interlocutory relief which is sought in the originating application.

22    The respondents applied for the costs of today against the first and second applicants. The principal purpose of the hearing today was to determine whether the interlocutory relief sought in the originating application should be granted. It is true that the respondents also brought an application for summary dismissal, however – as a matter of substance – that application simply engaged the first inquiry in the application for interlocutory relief, namely whether there is a prima facie case and the apparent strength of the underlying case. The usual rule is that the party who loses bears the costs. Given the submissions made for the applicants, I would observe that an order for costs against a party does not reflect a judgment about whether it was sensible to bring the application or whether it was meritorious or arguable or those kinds of matters, it is simply ordered to compensate (partially) the party who won the issue for the costs that that party incurred. The Court has significant sympathy for the positions of both the first and second applicants (costs were not sought against the remaining applicants), however, that is not ultimately a reason for departing from the usual rule. For those reasons, I order that the first and second applicants pay the respondents’ costs of today.

Associate:

Dated:    29 July 2021

SCHEDULE OF PARTIES