Federal Court of Australia

AZC20 v Minister for Home Affairs [2021] FCA 1234

ORDERS

THE COURT DECLARES THAT:

1.    Section 198AD(2) of the Migration Act 1958 (Cth) (the Act) applies to the applicant.

THE COURT ORDERS THAT:

2.    The Secretary of the Department of Home Affairs (the Secretary) must perform, or cause to be performed, the duty under s 198AD(2) of the Act to, as soon as reasonably practicable, take the applicant from Australia to a regional processing country.

3.    From no later than 1.00 pm [AWST] on 27 October 2021:

(a)    the Secretary is to cause any detention of the applicant in immigration detention pending performance of the duty described in Order 2 to occur at the address set out in the affidavit of Anette Hermann filed on 8 September 2021; and

(b)    the applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under the Act, or by another person or persons directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the applicant.

4.    The parties and Anette and Miguel Hermann are to participate in mediation before a Registrar of the Court, on a date and at a time and place to be fixed by the Registrar after consultation with the participants, to reach agreement upon arrangements for the immigration detention described in Order 3.

5.    The parties and Anette and Miguel Hermann each have liberty to apply in respect of Orders 3 and 4.

6.    The application for a writ of habeas corpus is dismissed.

7.    The applicant file and serve any submissions as to costs (not exceeding three pages) by 4.30 pm [AEST] on 27 October 2021, and the respondents file and serve any submissions as to costs (not exceeding three pages) by 4.30 pm [AEST] on 11 November 2021; and any question of costs will be decided on the papers.

8.    Unless submissions are filed under Order 7 seeking different orders:

(a)    the respondents must pay the applicant’s costs of proceeding VID 503 of 2021; and

(b)    the costs of proceeding VID 89 of 2021 will be reserved.

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

REASONS FOR JUDGMENT

RANGIAH J:

1    Eight years ago, the applicant arrived in Australia as an “unauthorised maritime arrival”. Since then, he has been held in immigration detention in Australia.

2    On 25 February 2021, the applicant commenced proceeding VID 89 of 2021 in this Court seeking that a writ of habeas corpus be issued (the habeas corpus application), a declaration that he has been falsely imprisoned, and other relief. The habeas corpus application was separated from the other issues in the proceeding. A hearing of the habeas corpus application was conducted on 18 and 19 May 2021, and I reserved my judgment.

3    The High Court of Australia delivered its judgment in Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562 (AJL20) on 23 June 2021. I sought written submissions upon the consequences of AJL20 for the present case. In his submissions, the applicant accepted that the habeas corpus application could not succeed, and that the only available relief was an order in the nature of mandamus.

4    In an interlocutory application filed on 12 July 2021, the applicant proposed to amend his originating application in proceeding VID 89 of 2021 to seek a mandamus order. The respondents opposed the amendment on the basis that the Federal Court of Australia lacked jurisdiction to grant that relief. That impasse was broken by the applicant commencing a proceeding on 19 August 2021 for mandamus in the Federal Circuit Court of Australia and then having the proceeding transferred to the Federal Court as proceeding VID 503 of 2021 (the mandamus application).

5    A hearing in respect of the mandamus application was conducted on 15 September 2021. At the hearing, the applicant’s counsel announced that the habeas corpus application was not abandoned after all. Accordingly, it remains necessary to consider the habeas corpus application, as well as the mandamus application.

6    The principal issue concerns the proper construction of s 198AD of the Migration Act 1958 (Cth) (the Act). The applicant contends that s 198AD(2) requires that he be taken to a regional processing country as soon as reasonably practicable. The applicant submits that it has been reasonably practicable to remove him for the last eight years, and as that has not occurred, there is no lawful basis for his ongoing detention in Australia. The respondents argue that, on its proper construction, s 198AD of the Act has no application to the applicant, and that the applicant’s detention is authorised under ss 189 and 196 of the Act.

7    I will describe the factual circumstances, before considering the relevant statutory provisions and the parties’ submissions.

The facts

8    The applicant is a citizen of Iran. He arrived in Australia by boat on 15 July 2013. He has been held in immigration detention in various detention facilities in Australia since his arrival. He is presently detained at the Perth Immigration Detention Centre in Western Australia.

9    On 13 August 2015, the relevant Minister “lifted the bar” under s 46A(2) of the Act to allow the applicant to apply for a temporary protection visa. The evidence does not explain why the applicant had not been taken to a regional processing country within the two years before he was permitted to apply for a visa.

10    The applicant applied for a temporary protection visa on about 6 October 2015. His application was refused by the Minister’s delegate (the delegate) on 9 May 2018. The Immigration Assessment Authority (the IAA) affirmed the delegate’s decision on 29 March 2019.

11    On 6 December 2019, the Federal Circuit Court, by consent, quashed the IAA’s decision and remitted the matter for reconsideration.

12    On 24 February 2020, the IAA again affirmed the delegate’s decision, but on 21 August 2020, that decision was again quashed and remitted to the IAA for reconsideration: AZC20 v Minister for Immigration & Anor [2020] FCCA 2317.

13    On 12 February 2021, the IAA once again affirmed the delegate’s decision to refuse the grant of the protection visa. The applicant has not applied for review of that decision.

14    Instead, on 25 February 2021, the applicant commenced proceeding VID 89 of 2021 in this Court seeking habeas corpus and other relief. The Minister was named as the respondent. On the first day of the hearing on 18 May 2021, the Commonwealth was joined as the second respondent to the proceeding.

15    On 19 August 2021, the applicant filed an application in the Federal Circuit Court seeking against the Minister an, “order in the nature of mandamus requiring the taking of the [a]pplicant from Australia pursuant to s 198AD of the Migration Act 1958 (Cth), subject to directions of the Court”. By order of the Federal Circuit Court made on 30 August 2021, the mandamus application was transferred to the Federal Court (proceeding VID 503 of 2021)

16    The respondents have filed a number of affidavits of Departmental officers. The deponents were not required for cross-examination. The affidavits demonstrate that:

    The applicant is currently being held in immigration detention.

    The relevant Departmental officers consider that they were and are required by s 189 of the Act to cause the applicant to be detained on the basis the applicant is, or is reasonably suspected to be, an unlawful non-citizen.

    The Departmental officers have been, and are, attempting to return the applicant to Iran.

    The applicant has not yet been returned to Iran because the Iranian government does not accept the return of Iranians from Australia without their consent, and the applicant does not consent to his return.

    There are ongoing discussions with Iranian authorities as to whether this policy might be changed.

17    In the course of the hearing of the mandamus application on 15 September 2021, it emerged that the Minister is not, or might not be, an “officer” under the Act. The Secretary of the Department of Home Affairs (the Secretary) consented to being joined as the second respondent to proceeding VID 503 of 2021.

18    It is common ground that the applicant is detained under s 189(1) of the Act. That provision requires detention by an “officer”. The respondents accept that the Secretary is an “officer”, and that the Secretary can be taken to be the officer who is effecting the detention of the applicant under s 189(1) and who is obliged to carry out any duty imposed under s 198AD of the Act.

Consideration of the mandamus application

19    It is convenient to begin with consideration of the application for an order in the nature of mandamus.

20    A writ of mandamus is directed to a public official compelling the official to perform a public duty. To obtain such relief, an applicant must establish that: (1) a duty exists; and (2) there is an actual or constructive failure to perform that duty: AOU21 v Minister for Home Affairs [2021] FCAFC 60 at [195].

Overview of the issues in dispute

21    The applicant submits that he falls within s 198AD(2) of the Act, which requires that an officer take an unauthorised maritime arrival to whom the provision applies, as soon as reasonably practicable, to a regional processing country. The only regional processing country is Nauru. The applicant submits that it is reasonably practicable to take him to Nauru, and that the Secretary has failed to perform the statutory duty imposed upon the Secretary.

22    The respondents contend that s 198AD does not apply to the applicant, so the Secretary is under no duty to take the applicant to a regional processing country.

23    However, the respondents concede that:

(1)    If s 198AD does apply to the applicant, then there is a duty to take the applicant to a regional processing country as soon as reasonably practicable.

(2)    The Secretary has refused to take the applicant to a regional processing country because the Secretary believes that s 198AD does not apply.

(3)    The only matter stopping the taking of steps for the removal of the applicant to Nauru is the Secretary’s belief that s 198AD does not apply (but there are some administrative steps that would have to be taken before the applicant could be removed to Nauru).

(4)    The respondents do not press any argument that it is not reasonably practicable to remove the applicant at the present time.

(5)    An order in the nature of mandamus is available to remedy the refusal of the Secretary to perform the duty (if such a duty exists) under s 198AD to remove the applicant to a regional processing country.

24    In light of these concessions, the fundamental premise of the applicant’s case – that s 198AD of the Act applies to him – may be examined.

25    Section 198AD provides, relevantly:

198AD    Taking unauthorised maritime arrivals to a regional processing country

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

...

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

…

.

Powers of an officer

(3)    For the purposes of subsection (2) and without limiting that subsection, an officer may do any or all of the following things within or outside Australia:

(a)    place the unauthorised maritime arrival on a vehicle or vessel;

(b)    restrain the unauthorised maritime arrival on a vehicle or vessel;

(c)    remove the unauthorised maritime arrival from:

(i)    the place at which the unauthorised maritime arrival is detained; or

(ii)    a vehicle or vessel;

(d)    use such force as is necessary and reasonable.

...

Not in immigration detention

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

Meaning of officer

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

26    In Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 at [22]-[25] it was held that s 198AD(2) is a law with respect to a class of aliens and is a valid law within s 51(xix) of the Constitution.

27    In Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, the plurality considered the expression “regional processing country”, observing at [2]:

Nauru is a country designated by the Minister for Immigration and Border Protection under s 198AB of the Migration Act as a “regional processing country”. The reference to “processing” is to a determination by Nauru of claims by [unauthorised maritime arrivals] to refugee status under the Convention. Both Australia and Nauru are signatories to that Convention.

[Citations omitted.]

28    The duty under s 198AD is imposed upon an “officer”. That expression is defined in s 5 to include an officer of the Department, a police officer, and a person who is authorised by the Minister to be an officer. The respondents accept that the Secretary is an officer upon whom any duty under s 198AD(2) is imposed.

29    Section 198AD was inserted into the Act by s 25 of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth), which commenced on 18 August 2012. The applicant arrived in Australia after that date.

30    It may be seen from s 198AD(2) that the obligation of an officer is to take, as soon as reasonably practicable, an unauthorised maritime arrival “to whom this section applies” to a regional processing country. For s 198AD(2) to apply, the person must at least satisfy the requirements of s 198AD(1).

31    Section 198AD(1) of the Act expressly sets out three requirements. First, the application of the provision is subject to ss 198AE, 198AF and 198AG of the Act. Second, the provision applies only to a person who is an “unauthorised maritime arrival” within the meaning of that expression in s 5AA of the Act. Third, the person must be detained under s 189 of the Act. A fourth, unstated, requirement is that s 198AD must not be excluded from application to a person by some other provision of the Act (so, for example, s 198AD will not apply to a “transitory person” unless the requirements of subsection 198AH(1A) or (1B) of the Act are satisfied).

32    The respondents admit that the applicant is an “unauthorised maritime arrival” within s 5AA of the Act. The respondents also admit that the applicant is detained under s 189 of the Act.

33    However, the respondents contend that:

(1)    the applicant is required, but has failed, to demonstrate that the application of s 198AD has not been excluded by s 198AE, s 198AF or s 198AG; and

(2)    the statutory scheme impliedly excludes the application of s 198AD to an unauthorised maritime arrival who is a “fast track applicant”, and the applicant is in that category.

34    For these reasons, the respondents submit that the applicant has not been demonstrated to come within s 198AD(2), and no obligation arises to take the applicant to a regional processing country.

35    The respondents also submit that the consequence of ss 189(1) and 196(1) of the Act is that the applicant must be kept in immigration detention in Australia until one of the conditions specified in s 196(1) of the Act is satisfied.

36    Section 189 provides, relevantly:

189    Detention of unlawful non-citizens

(1)    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.

…

37    Section 196 provides, relevantly:

(1)    An unlawful non-citizen detained under section 189 must be kept in immigration detention until:

(a)    he or she is removed from Australia under section 198 or 199; or

(aa)     an officer begins to deal with the non-citizen under subsection 198AD(3); or

(b)    he or she is deported under section 200; or

(c)    he or she is granted a visa.

…

(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.

…

38    The applicant is an “unlawful non-citizen” within the meaning of that expression in s 14 of the Act, as he does not hold a valid visa. Therefore, s 189(1) applies to him. The applicant’s submission, however, is that s 198AD applies to him to the exclusion of s 196(1). The applicant submits that ever since his arrival in Australia, he was required to be taken to a regional processing country as soon as reasonably practicable.

Whether the applicant has demonstrated that ss 198AE, 198AF and 198AG do not operate to exclude the application of s 198AD

39    The respondents submit that the applicant is required to prove that ss 198AE, 198AF and 198AG do not operate to exclude the application of s 198AD in relation to the applicant, but has failed to do so.

40    In AOU21, the Full Court held at [195]:

Where a party seeks an order in the nature of mandamus, the onus lies on that party to prove the facts necessary to justify the grant of such relief. That is because the grant of this remedy lies for a refusal, actual or constructive, to perform a duty which, in law and in fact, ought to have been performed.

41    Sections 198AE, 198AF and 198AG each expressly set out a circumstance where s 198AD does not apply to an unauthorised maritime arrival.

42    Section 198AE(1) of the Act provides that, “[i]f the Minister thinks that it is in the public interest to do so, the Minister may, in writing, determine that section 198AD does not apply to an unauthorised maritime arrival”.

43    Section 198AF provides that s 198AD, “does not apply to an unauthorised maritime arrival if there is no regional processing country”.

44    Section 198AG provides that s 198AD, “does not apply to an unauthorised maritime arrival if the regional processing country…has advised an officer, in writing, that the country will not accept the unauthorised maritime arrival”.

45    The applicant is required to establish the non-existence of those circumstances described in ss 198AE, 198AF and 198AG which make s 198AD inapplicable.

46    In AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424, Besanko and Thawley JJ, considering whether there had been unreasonable delay by the Minister in making a decision under s 501(2) of the Act, observed at [59]:

As to onus, it was for the appellant to show that there was unreasonable delay affecting the jurisdiction to make the decision. If the appellant established a delay which called for explanation, then the persuasive onus might shift to the Minister to establish what that explanation was. In considering whether the appellant discharged her onus of establishing unreasonable delay, the evidence of each party is to be evaluated in accordance with the capacity of each to adduce evidence on the issue: Blatch v Archer (1774) 1 Cowp 63; 98 ER 969. That is a principle which authorises a particular form of reasoning.

47    In McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 405, the Full Court was concerned with an application for habeas corpus. The Chief Justice observed at [60] that in such an application, it is for the applicant to adduce evidence that puts in issue the legality of detention, before the burden shifts to the respondent to show that detention is lawful. The Chief Justice continued at [60]:

The necessity not to define precisely or overly finely in the abstract what has to be proved by the applicant can be appreciated if one recognises that in respect of some detentions (such as in Al Masri which concerned the possible exhaustion of the Constitutional purpose of the power to detain or, as here, where the detention is based on a mental state of the detainer required to be reasonably founded) the incidents or aspects of the lawfulness of the detention are within the knowledge and power of proof of the detainer: cf Blatch v Archer (1774) 1 Cowp 63 at 65; 98 ER 969 at 970 to the effect that evidence is to be weighed according to the proof which it was in the power of one side to produce and the other to contradict.

48    In the present case, where mandamus is sought, the legal onus remains upon the applicant. The applicant has continued to be held in immigration detention for some eight years when s 198AD, on its face, requires his removal to a regional processing country unless an exception applies. The applicant has established a delay of such magnitude that it calls for an explanation. The only explanation provided is the Secretary’s belief that s 198AD does not apply to fast track applicants. The respondents’ admission that the only matter stopping the taking of steps for removal of the applicant to Nauru is the Secretary’s belief that s 198AD does not apply is inconsistent with the submission that ss 198AE, 198AF and 198AG may apply.

49    It is also important to recognise that the existence of the circumstances described in ss 198AE, 198AF and 198AG of the Act will be within the knowledge and power of proof of the respondents, but is much less likely to be within the knowledge and power of proof of the applicant.

50    There is no requirement for the Minister to notify the applicant as to any determination made under s 198AE. If any determination under s 198E had been made, the Minister would certainly have adduced evidence of the decision since it would have been a complete answer to the applicant’s claims. The admission that the only matter stopping the taking of steps for removal of the applicant to Nauru is the Secretary’s belief that s 198AD does not apply, and the absence of any evidence from the Minister that a determination has been made under s 198AE, allows an inference to be drawn that there was no such determination.

51    There is in evidence a written direction entitled Migration (Direction for Regional Processing Countries) Instrument 2021 made by the Minister on 25 March 2021 (apparently incorrectly dated 23 March 2021) requiring officers to take unauthorised maritime arrivals to Nauru. Accordingly, for the purposes of s 198AF of the Act, there is a regional processing country.

52    Ms Sullivan, a Departmental officer, deposes that if the applicant is to be transferred to Nauru, it will require approval from the government of Nauru. As there has not yet been any request for approval, there cannot have been any refusal within s 198AG by Nauru to accept the applicant.

53    The applicant has established that the factual circumstances described in ss 198AE, 198AF and 198AG which would make s 198AD inapplicable do not exist. I reject the respondents’ submissions to the contrary.

Whether s 198AD is excluded in relation to a “fast track applicant”

54    Statutory construction requires consideration of the text of the provision in light of its context and purpose: SAS Trustee Corporation v Miles (2018) 265 CLR 137 at [20]; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14]. Consideration of context is undertaken at the first stage of the process of construction, which includes the surrounding statutory provisions, other aspects of the statute and the statute as a whole: R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 at [33]. As the plurality in SAS Trustee Corporation v Miles observed at [20], “[w]here the text read in context permits of more than one potential meaning, the choice between those meanings may ultimately turn on an evaluation of the relative coherence of each with the scheme of the statute and its identified objects or policies”.

55    In HFM043 v Republic of Nauru [2018] HCA 27; (2018) 359 ALR 176, the High Court held at [24]:

The task of construction of a statute is of the words which the legislature has enacted. Any modified meaning must be consistent with the language in fact used by the legislature. Words may be implied to explain the meaning of its text. The constructional task remains throughout to expound the meaning of the statutory text, not to remedy gaps disclosed in it or repair it.

[Citations omitted.]

56    Section 198AD(1) states that:

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

…

57    The respondents admit that the applicant is an unauthorised maritime arrival and that he is detained under s 189. I have already determined that ss 198AE, 198AF and 198AG do not exclude the operation of s 198AD in relation to the applicant.

58    Therefore, the plain language of the provision indicates that s 198AD applies to the applicant. Section 198AD(2) then 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.

59    The respondents argue that, upon its proper construction, s 198AD does not apply to an unauthorised maritime arrival who is a “fast track applicant” as defined under s 5. The applicant is a fast track applicant. The respondents submit that s 189 requires the applicant’s continuing detention until he satisfies one of the criteria in s 196(1). The respondents submit that the only criterion in s 196(1) that may be satisfied is removal from Australia under subsection 198(1) or (6).

60    At this stage it is convenient to set out the relevant provisions of s 198:

198    Removal from Australia of unlawful non-citizens

Removal on request

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

...

(6)    An officer must remove as soon as reasonably practicable an unlawful non-citizen if:

   (a)    the non-citizen is a detainee; and

(b)    the non-citizen made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; and

   (c)    one of the following applies:

(i)    the grant of the visa has been refused and the application has been finally determined;

   (ii)    the visa cannot be granted; and

(d)    the non-citizen has not made another valid application for a substantive visa that can be granted when the applicant is in the migration zone.

    …

(11)    This section does not apply to an unauthorised maritime arrival to whom section 198AD applies.

61    In Plaintiff M96A/2016 v Commonwealth of Australia (2017) 261 CLR 582, it was observed at [14] that the provisions of s 198 will only apply where s 198AD does not apply. It may be seen from s 198(11) that the critical issue remains whether s 198AD applies to the applicant.

62    An unauthorised maritime arrival who is a “fast track applicant” is not expressly excluded from the scope of s 198AD. The respondents’ construction of the statutory scheme as excluding such a person requires the implication of such an exclusion.

63    In contrast, s 198AD(1) expressly makes the application of s 198AD subject to ss 198AE, 198AF and 198AG. Similarly, s 198AD(2A) expressly excludes the application of s 198AD(2) to a particular category of unauthorised maritime arrivals, namely persons born in Australia or in a regional processing country if their parent entered Australia before 13 August 2012. Further, s 198AH(1) expressly excludes the application of s 198AD where the person is not covered by s 198AH(1A) or (1B). The careful, deliberate and express carving out of circumstances where s 198AD does not apply tells against any legislative intention to leave to implication another circumstance where the provision does not apply, namely where an unauthorised maritime arrival is a fast track applicant.

64    The respondents submit, however, that the purposes and context of s 198AD and the fast track regime imply that fast track applicants are excluded from the reach of s 198AD.

65    The expression “fast track applicant” is defined in s 5 of the Act as follows:

fast track applicant means:

(a)    a person:

(i)    who is an unauthorised maritime arrival and who entered Australia on or after 13 August 2012, but before 1 January 2014, and who has not been taken to a regional processing country; and

(ii)    to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa; and

(iii)    who has made a valid application for a protection visa in accordance with the determination; or

(b)    a person who is, or who is included in a class of persons who are, specified by legislative instrument made under paragraph (1AA)(b).

…

66    Section 46A(1) of the Act relevantly prevents an unauthorised maritime arrival who is in Australia and is an unlawful non-citizen from making a valid visa application, unless the Minister determines, pursuant to s 46A(2), that such an application may be made. The respondents submit that where the bar has not been lifted, an unauthorised maritime arrival would ordinarily be dealt with by being removed to a regional processing country pursuant to s 198AD. A necessary element of being a fast track applicant is that the unauthorised maritime arrival has not been taken to a regional processing country. The respondents submit that the fast track regime under Part 7AA of the Act envisages a pathway by which unauthorised maritime arrivals of a particular kind – fast track applicants – are able to be dealt with onshore.

67    The respondents argue that when s 198AD was introduced, as expressed in s 198AA, all unauthorised maritime arrivals were to be taken to a regional processing country, but that this was fundamentally changed with the introduction of Part 7AA in relation to fast track applicants. The respondents note that the Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) states that fast track assessment is part of Australia’s, “onshore protection processing”. The respondents submit there is a clear legislative intention to carve out “fast track applicants” from the broader group of unauthorised maritime arrivals, and deal with those persons onshore under Part 7AA.

68    The respondents submit that, in context and having regard to the purposes of s 198AD and the fast track process, it is apparent that “fast track applicants” are excluded from s 198AD. An unauthorised maritime arrival cannot, by reason of s 46A(1), ordinarily make a valid visa application. The respondents submit that, while unauthorised maritime arrivals would ordinarily be dealt with by being taken offshore to a regional processing country pursuant to s 198AD(2), Part 7AA envisages a pathway by which fast track applicants are to be dealt with in Australia.

69    The respondents’ submission that a “fast track applicant” is impliedly excluded from the scope of s 198AD must be considered by reference to the language, history and purpose of the statutory scheme for dealing with unauthorised maritime arrivals.

70    The Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) inserted Subdivision B of Part 2, Division 8 (within which s 198AD is found) into the Act. The Explanatory Memorandum for the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2011 (Cth) explained that its purposes included to, “provide that, subject to certain limitations, an offshore entry person detained under section 189 must, as soon as reasonably practicable, be taken from Australia to an offshore processing country”, and to, “allow the Minister to personally determine, in writing, that an offshore entry person is not to be taken to an offshore processing country, if the Minister thinks that it is in the public interest to do so”. The expression “unauthorised maritime arrival” was substituted for “offshore entry person” under the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth).

71    Subdivision B, Division 8, Part 2 of the Act has the heading, “Regional Processing”. Section 198AA sets out the reasons for the enactment of Subdivision B:

This Subdivision is enacted because the Parliament considers that:

(a)     people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b)     unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c)     it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d)     the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

72    The term “unauthorised maritime arrival” is defined in s 5AA to mean, relevantly for present purposes, a person who entered Australia by sea and who became an unlawful non-citizen because of that entry. The effect of ss 13(1) and 14(1) is that a non-citizen in the migration zone who does not hold a visa that is in effect, is an unlawful non-citizen. Section 189(1) requires that 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. Accordingly, unauthorised maritime arrivals, like other unlawful non-citizens who are in the migration zone without a visa that is in effect, must be detained.

73    In AOU21, the Full Court observed at [123]:

…Section 198AD is the principal mechanism whereby the Commonwealth’s “offshore processing regime” is implemented. It is the provision which requires (subject to s 198AE) any “unauthorised maritime arrival” to be taken to an offshore processing country, and thus not to be able to remain in Australia. It bifurcates the treatment of those who are, by the Act, classified as “unauthorised maritime arrivals” from the treatment of all other people who arrive in Australia without a visa. This absolute and policy-driven bifurcation is apparent from the terms of s 198AA…

74    The effect of Subdivision B is to require that unauthorised maritime arrivals detained under s 189 must, subject to any Ministerial intervention, be treated differently from other unlawful non-citizens detained under s 189. Section 198AD(2), together with s 196(1)(aa), envisages that unauthorised maritime arrivals will initially be detained in Australia, but that they will be taken to a regional processing country as soon as reasonably practicable. Other unlawful non-citizens – those who arrive by aeroplane without a valid visa or who overstay their visas – are, under s 196, kept in immigration detention until, (a) removed from Australia under s 198 or s 199; or (b) deported under s 200; or (c) granted a visa. In addition, s 46A(1) prohibits unauthorised maritime arrivals who are in Australia from making a valid application for a visa, whereas that broad restriction does not apply to other unlawful non-citizens. The evident purpose of the differential treatment is to discourage unauthorised maritime arrivals.

75    However, it may be noted that there is one benefit which accrues to unauthorised maritime arrivals by reason of their removal to a regional processing country – they are not, or not necessarily, kept in detention in that country.

76    Section 198AD(1) specifies that the application of the section is subject to s 198AE. It is important to note that s 198AE(1) allows the Minister to determine that s 198AD does not apply to an unauthorised maritime arrival if the Minister thinks that it is in the public interest to so determine. The power can only be exercised by the Minister personally (s 198AE(2)), and the Minister must cause to be laid before each House of the Parliament a statement that sets out the determination and the Minister’s reasons (s 198AE(4)). These provisions make it clear that the exercise of the power under s 198AE will be unusual, the usual requirement being to take an unauthorised maritime arrival from Australia to a regional processing country as soon as reasonably practicable. However, exercise of the power under s 198AE allows the unauthorised maritime arrival to be detained in Australia under s 196 until removed under s 198 or s 199, or deported under s 200, or granted a visa.

77    The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) was enacted two years after the enactment of Subdivision B. That Act, relevantly, introduced Part 7AA and the fast track review process into the Act. The Explanatory Memorandum for the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) stated that the fast track assessment process was aimed at addressing the backlog of unauthorised maritime arrivals who entered Australia on or after 13 August 2012 and ensuring their cases progress towards timely immigration outcomes. The fast track assessment process was described as, “onshore protection processing”.

78    It is common ground that the applicant is a “fast track applicant” under para (a) of the definition in s 5 of the Act. A fast track applicant of that kind is necessarily a person:

(1)    who is an unauthorised maritime arrival;

(2)    who entered Australia on or after 13 August 2012, but before 1 January 2014;

(3)    for whom the bar under s 46A(1) to making a valid application for a visa while in Australia has been lifted by the Minister pursuant to s 46A(2); and

(4)    who has not been taken to a regional processing country.

79    Part 7AA has the heading, “Fast track review process in relation to certain protection visa decisions”. Section 473BA contains a simplified outline of Part 7AA, and states:

This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country…

…

In reviewing fast track reviewable decisions, the Immigration Assessment Authority is required to pursue the objective of providing a mechanism of limited review that is efficient, quick, free of bias and consistent with Division 3 (conduct of review).

The Immigration Assessment Authority does not hold hearings and is required to review decisions on the papers that are provided to it when decisions are referred to it…

80    The expression, “fast track reviewable decision”, is defined in s 473BB to mean, relevantly, “a fast track decision in relation to a fast track review applicant”; and a, “fast track decision”, is defined in s 5 to mean, relevantly, “a decision to refuse to grant a protection visa to a fast track applicant”.

81    Section 473DB requires the IAA to review decisions by only considering the review material provided to the IAA, subject to ss 473DC and 473DD. Section 473DC allows the IAA to invite a person to give information, and s 473DE requires the IAA to invite the person to comment upon new information. The person may be invited to give information or comment in writing, or at an interview, whether conducted in person, by telephone or in any other way. Section 473DF allows the IAA to determine the manner in which, and the place and time at which, an interview is to be conducted. These provisions, together with the requirement that a person must not have been taken to a regional processing country in order to be a “fast track applicant”, demonstrate that what is contemplated is a review conducted while the applicant is in Australia.

82    The statutory scheme contemplates that some unauthorised maritime arrivals, called “fast track applicants”, will not be processed in a regional processing country, but will be permitted to apply for visas while in Australia. The requirement of the definition of “fast track applicant” in s 5 that the unauthorised maritime arrival, “has not been taken to a regional processing country”, implies that there is expected to be some lawful basis for not taking the person to a regional processing country.

83    One such basis is where an unauthorised maritime arrival to whom s 198AD applies, remains in immigration detention in Australia during a period before it has become reasonably practicable to take them to a regional processing country, and then becomes a fast track applicant by the Minister permitting an application for a visa. An unauthorised maritime arrival in that category may be at once a fast track applicant and a person to whom s 198AD applies. It may be noted that the respondents submit that it is not “reasonably practicable” to take an unauthorised maritime arrival to a regional processing country when the bar has been lifted and their visa application is the subject of the fast track process and other legal proceedings, although that is an issue that it is not presently necessary to resolve.

84    Another lawful basis for not taking an unauthorised maritime arrival to a regional processing country exists where the application of s 198AD is excluded by another provision in relation to a particular unauthorised maritime arrival or subclass of unauthorised maritime arrivals. The question is how the statutory scheme operates to exclude some unauthorised maritime arrivals from s 198AD, such that they are able to fall within the definition of “fast track applicants”.

85    There is one possibility and one certainty. The possibility is that contended for by the respondents – that fast track applicants are an implied exception to s 198AD, so that they remain in Australia and are not taken to a regional processing country. The certainty is that contended for by the applicant – that the express exception in s 198AE allows the Minister, if she thinks it is in the public interest, to determine that s 198AD does not apply, such that an unauthorised maritime arrival is not taken from Australia to a regional processing country.

86    The applicant submits that the possibility contended for by the respondents should not be accepted, and that the legislative intention is that an unauthorised maritime arrival becomes a fast track applicant only through the making of a determination by the Minister under s 198AE. That construction is compelling. It accords with the plain language of subsections 198AD(1) and 198AD(2) which require an unauthorised maritime arrival to be taken to a regional processing country, subject to the specified exceptions. As Mason and Wilson JJ observed in Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 321, an interpretation has a powerful advantage if it conforms with the ordinary meaning and with grammatical sense.

87    The applicant’s construction is also consistent with the express conferral of power under s 198AE upon the Minister to determine that s 198AD does not apply to an unauthorised maritime arrival if the Minister thinks that it is in the public interest to so determine. In circumstances where Parliament has expressly enacted the fast track process for a subclass of unauthorised maritime arrivals called “fast track applicants”, it must be open to the Minister to think that exercise of the power under s 198AE such that some persons will fall into that class is in the public interest.

88    It may be observed that for an unauthorised maritime arrival to be a “fast track applicant”, the person must also be a person, “to whom the Minister has given a written notice under subsection 46A(2) determining that subsection 46A(1) does not apply to an application by the person for a protection visa”. Section 46A was amended to refer to “unauthorised maritime arrivals” by the Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth), as were ss 198AD and 198AE. A decision under s 46A(2) will allow an unauthorised maritime arrival to apply for a visa when in Australia, while a decision under s 198AE will allow an unauthorised maritime arrival to remain in Australia while the visa application is processed. These are cognate provisions. As is the case under s 198AE, the power under s 46A(2) must be exercised by the Minister personally (s 46A(3)), the Minister must be satisfied that it is in the public interest to exercise the power (s 46A(2)), and the Minister must cause to be laid before each House of the Parliament a statement that sets out the determination and the reasons for the determination (s 46A(4)). The symmetry between s 46A and s 198AE demonstrates a legislative intention that the Minister will generally make determinations under s 46A(2) and s 198AE(1) at the same time. This supports the construction that the source of power to exclude s 198AD in relation to a fast track applicant is intended to be s 198AE.

89    In addition, the applicant’s construction is consistent with the description of the Full Court in AOU21 at [128] of s 198AE as creating an exception to the “otherwise absolute intention” of s 198AD that unauthorised maritime arrivals will be taken from Australia:

The Minister can determine that s 198AD does not apply to a person. That power is a personal one and is conditioned by the Minister’s opinion that such a determination is in the public interest: see s 198AE. That provision is relevant to demonstrate the otherwise absolute intention behind s 198AD: those who fall within its terms are intended not to be able to remain in Australia.

90    Conversely, there are several unattractive features about the construction contended for by the respondents – that fast track applicants are an implied exception to s 198AD, so that they not be taken to a regional processing centre and remain in Australia.

91    One such feature is that this construction is inconsistent with the plain words of s 198AD(1). The respondents’ construction is also inconsistent with the existence of the express exceptions to the application of s 198AD found in ss 198AD(2A), 198AE, 198AF, 198AG and 198AH. It is also inconsistent with Note 2 to s 198AD(2A) which states that, “This section does not apply in relation to a person who entered Australia by sea before 13 August 2012…”. If the application of s 198AD to a particular category of unauthorised maritime arrivals was intended to be excluded automatically, it seems probable that an express exception to that effect would have been included instead of leaving it to implication.

92    The commonality of s 198AD and the definition of “fast track applicant” is that they each apply to unauthorised maritime arrivals. A premise underlying the respondents’ argument is that because there is a category of unauthorised maritime arrivals possessing characteristics which include not having been removed to a regional processing country (called “fast track applicants”), there must be a legislative implication that persons with the other requisite characteristics cannot be removed. The argument ignores that unauthorised maritime arrivals may fall into the definition of “fast track applicants” because the Minister has determined under s 198AE that s 198AD does not apply to the person. There is no need to construe s 198AD as implying that fast track applicants cannot be removed to a regional processing country when there is another statutory mechanism which provides an express and clear basis for unauthorised maritime arrivals to remain in Australia while their visa applications are processed.

93    The respondents submit that unless s 198AD of the Act is construed as not applying to fast track applicants, a number of anomalies would arise. First, it would be anomalous to construe the Act as requiring a fast track applicant to be removed to a regional processing country despite the applicant’s visa being processed in Australia. Second, the removal of a fast track applicant to a regional processing country would have the consequence that the person is no longer a fast track applicant, which would be particularly anomalous if removal occurred after the IAA review process had commenced. Third, the requirement in the definition of “fast track applicant” that the person not have been taken to a regional processing country is an apparent manifestation of an intention that fast track applicants be processed while they are onshore. Fourth, a fast track applicant will have specifically been the subject of a decision by the Minister to lift the bar under s 46A(2) of the Act and to allow a valid visa application to be made by an unauthorised maritime arrival in Australia.

94    These asserted anomalies are based upon an assumption that fast track applicants are liable to be taken to a regional processing country while their visa application is being processed unless s 198AD of the Act is construed as not applying to fast track applicants. Upon the proper construction of the legislative scheme, that is not so.

95    The legislative scheme intends that the Minister will ordinarily exercise the power under s 46A(2) to allow an unauthorised maritime arrival to apply for a visa in Australia together with the power under s 198AE to allow the person to remain in Australia. The person will then (subject to fulfilment of the other criteria in the definition in s 5) become a fast track applicant. If the power under s 198E is exercised in relation to a particular unauthorised maritime arrival, s 198AD will not apply to that person and the person will not be taken to a regional processing country. It seems improbable that the Minister could lift the bar under s 46A(2), but then refuse to exercise the power under s 198AE because the consequence would be that the person would be taken from Australia and the fast track process would be frustrated. The intention is that where an unauthorised maritime arrival is permitted to apply for a visa in Australia, the person will be permitted to remain in Australia while their application is processed, including under the fast track process if that process becomes applicable.

96    Section 198AD will apply to an unauthorised maritime arrival who entered Australia after 13 August 2012 and is detained under s 189 unless one of the specified exceptions applies.

97    Section 198AD applies to the applicant because he is an unauthorised maritime arrival who entered Australia after 13 August 2012 and is detained under s 189, and because the Minister has not made any determination under s 198AE that s 198AD does not apply to the applicant, and because the other exceptions to s 198AD are not engaged.

98    Section 198AD(2) requires that the applicant be taken to a regional processing country as soon as reasonably practicable. The only regional processing country is Nauru. The respondents accept that the only reason why no steps have been taken to take the applicant to Nauru is the Secretary’s view that s 198AD does not apply to the applicant. That view is mistaken. The question of whether it is reasonably practicable to take the applicant to a regional processing country must be determined objectively. It was not argued that the Secretary’s misunderstanding of the law affected the reasonable practicability of taking the applicant to Nauru.

99    The respondents rely upon an affidavit of Alana Sullivan, a Departmental officer. Ms Sullivan deposes that there is in place an arrangement entitled Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru dated 11 April 2014. These administrative arrangements outline how Nauru, with assistance from the Department, manages regional processing arrangements, including processes for the taking of unauthorised maritime arrivals to Nauru. All transfers require approval from the government of Nauru.

100    Ms Sullivan deposes that if the applicant is to be taken to Nauru, there would have to be consultation and an in-principle agreement with Nauru to receive the applicant. There would have to be a pre-transfer assessment to determine whether any obstacles to transfer exist, including assessment of health, security, protection and management issues. If the pre-transfer assessment identifies obstacles to transfer that do not make it reasonably practicable to take the unauthorised maritime arrival to Nauru at that time, but which are likely to be resolved, the transfer will be deferred until the relevant issues are resolved. If the pre-transfer assessment identifies obstacles to transfer that cannot be resolved, the transfer would not proceed and the case would be referred to the Minister for consideration of the exercise of her powers under s 198AE of the Act. If the pre-transfer assessment does not identify any obstacles to transfer, arrangements would be put in place to effect the transfer as agreed with Nauru. Once approval is provided by Nauru, the Australian Border Force would be asked to make travel arrangements, including liaison for landing permission if a charter aircraft is to be utilised.

101    I do not understand the respondents to contend that Ms Sullivan’s evidence indicates it is not reasonably practicable at present to take the applicant to Nauru. The respondents’ counsel conceded during the hearing of the mandamus application on 15 September 2021 that:

We put on evidence about the criminal process because we wanted to have an alternative argument available to say it’s not reasonably practicable to remove him at the moment. But we accept that that falls away now because the criminal process ended very recently.

…

So as a very long run to arrive at the bowling crease to deliver a very slow delivery – which is this, your Honour, is that in my submission, it all comes down to the argument had on the previous occasion, of whether s 198AD applies to the applicant. If it does, because the criminal proceedings are now out of the way, I accept the only thing that is presently holding the Minister taking steps to effect removal is the Minister’s decision or position that the duty doesn’t arise. If it’s wrong, I accept that’s a refusal to perform the duty, mandamus should issue in the terms I’ve outlined, and the steps that Ms Sullivan indicated in her affidavit can be taken.

102    It is perhaps unsurprising that the respondents did not seek to argue that Ms Sullivan’s evidence indicates that it is not reasonably practicable at present to take the applicant to Nauru. The notion of reasonable practicability cannot require that every possible impediment have been cleared, particularly when no attempt has been made to clear any impediments. The respondents concede that no steps are presently being taken to take the applicant to Nauru, and the only reason for that is the Secretary’s view that s 198AD does not apply. It is apparent that the Secretary is refusing to perform the duty imposed under s 198AD(2). The respondents concede that if their construction of s 198AD is wrong, mandamus should issue.

103    While there is no dispute between the parties that it is presently reasonably practicable to take the applicant to Nauru, there is a dispute as to when that action became reasonably practicable. The respondents contend that it did not become reasonably practicable to take the applicant to Nauru until the completion of the legal processes concerning the applicant’s application for a visa and criminal proceedings against the applicant (which were discontinued on 13 September 2021). The applicant contends that it became reasonably practicable to take the applicant to a regional processing country shortly after he arrived in Australia on 15 July 2013.

104    The respondents have provided no explanation for why the applicant was not taken to a regional processing country for the two years before the Minister’s decision under s 46A(2) to permit him to make an application for a visa. It could not have been because of any mistaken view that s 198AD did not apply to a fast track applicant, because the fast track process was not enacted until some two years after the applicant’s arrival in Australia.

105    The only evidence concerning the reasonable practicability of taking the applicant to a regional processing country at about the time he arrived in Australia comes from the transcript of a press conference conducted by the then Minister, Scott Morrison, on 24 September 2013. In that press conference, Mr Morrison stated:

We have also established a 48-hour target turnaround for any persons who have arrived illegally by boat in Australia…. That won’t be happening under a Coalition government and will [sic, we’ll] be moving immediately to ensure we have a 48 hour target turnaround, subject to operational logistical matters…You will find yourself very quickly and rapidly transferred by air to one of the offshore processing centres, if that is the outcome that has presented itself as a result of your voyage.

106    The transcript demonstrates that the applicant was capable of being taken to a regional processing country within a fairly short time after his arrival. It was solely within the power of the respondents to adduce evidence as to why the applicant was not taken to a regional processing country: cf. Blatch v Archer (1774) 1 Cowp 64 at 65. In the absence of any such evidence, I find that it was reasonably practicable to have taken the applicant to a regional processing country no later than the end of September 2013.

107    As to the respondents’ argument that it ceased to be reasonably practicable to take the applicant to Nauru when he applied for a temporary protection visa on about 6 October 2015, the applicant relies upon BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91, where Banks-Smith and Jackson JJ held:

[78]    …Section 501CA(3) requires the Minister then to communicate two things 'as soon as practicable after making the original decision' to the person whose visa has been cancelled.

[79]     Section 501CA(3) thus identifies a time within which the communication must occur. The question of when that time expires - when it first becomes practicable to make the communication - may be an evaluative one which could vary depending on the specific facts of the case. It is also, no doubt, one which does not require absolute precision in the answer. But whatever the time in a particular case, it remains tethered to a single and clearly identifiable event from which it is calculated: the making of the original decision. And it is a time that occurs 'as soon as' the condition of practicability becomes fulfilled. If follows that whatever time is 'as soon as practicable' after that event, it is a time which occurs once. The soonest time that it is practicable is by definition a single time, and not one that can reoccur.

108    However, it is unnecessary, for present purposes, to decide whether, as a matter of fact and law, it ceased to be reasonably practicable to take the applicant to Nauru when he applied for a temporary protection visa and was facing criminal charges. The processing of that visa application and those charges have come to an end. It is enough to conclude that it was reasonably practicable to take the applicant to a regional processing country in 2013, and that it is reasonably practicable to do so at the present time. The refusal or failure of the Secretary to act in accordance with s 198AD(2) warrants the making of an order in the nature of mandamus. I will discuss the question of relief in more detail later in these reasons.

Consideration of the habeas corpus application

109    The applicant initially sought habeas corpus, not mandamus, in proceeding VID 89 of 2021. Although the applicant abandoned the habeas corpus application after the High Court handed down its judgment in AJL20, the argument was resurrected in the course of oral submissions at the hearing of the mandamus application.

110    In AJL20, the visa holder’s visa had been cancelled on character grounds under s 501(2) of the Act. As the person then became an unlawful non-citizen, he was detained as was required by s 189(1). Section 198(6) required that the detainee be removed from Australia “as soon as reasonably practicable”. The primary judge found that the detainee had not been removed from Australia as soon as reasonably practicable, owing to a misunderstanding of Australia’s non-refoulement obligations. His Honour held that the detainee’s continuing detention was not for the purpose of removal from Australia, and was unauthorised and unlawful. His Honour ordered that the applicant be released from detention forthwith: see AJL20 v Commonwealth of Australia (2020) 279 FCR 549.

111    On appeal, the majority of the High Court held:

[49]     As has been seen, it is well-settled that the detention authorised by s 189(1) must continue until the first occurrence of a terminating event specified in s 196(1). The text of s 196(1) is clear: a person detained under s 189 “must be kept in immigration detention until”, relevantly, “he or she is removed from Australia under section 198”. The word “until”, used in its ordinary sense of “up to the time” and in conjunction with the word “kept”, refers to an ongoing or continuous state of affairs that is to be maintained up to the time that the event (relevantly, the grant of a visa or removal) actually occurs. As much is confirmed by s 196(3), to which the primary judge did not refer, in its provision that an unlawful non-citizen may be “release[d]” from detention only in the ways set out in s 196(1). In so providing, s 196 gives effect to the binary division drawn by the Act between lawful non-citizens, who may be at liberty in the community, and unlawful non-citizens, who must not be…

…

[51]    The duty imposed upon officers of the Executive by ss 189(1) and 196(1) of the Act is to detain the unlawful non-citizen until the occurrence of one of the events referred to in s 196. The duty so imposed by the Act is neither conditional upon, nor co-extensive with, the intents or purposes of officers of the Executive towards the detainee.

…

[53]     The duty imposed by s 198(6) was enforceable at all times during the 14 months when the responsible officers of the Executive were failing to perform that duty in the present case. At all times during this period, they were amenable to mandamus to require them to perform that duty. But at all times, their duty was to remove the respondent from Australia. Nothing happened that might, consistently with the Act, require or permit them to set the respondent at large in Australia…

…

[73]     The conclusion that officers of the Executive have not discharged their statutory duty to remove the respondent from Australia as soon as reasonably practicable affords a basis for orders requiring that they do their duty. Orders to that effect are appropriate to enforce the scheme of the Act. In contrast, to order that the respondent be released into the Australian community because officers of the Executive have not performed their statutory duty to remove him from Australia is to subvert that scheme.

112    Accordingly, the High Court held that where the Executive has failed to perform the duty under s 198(6) to remove an unlawful non-citizen from Australia as soon as reasonably practicable, mandamus is available to compel the proper performance of that duty, but habeas corpus may not be granted to effect the release of the person into the Australian community. There is no basis for distinguishing the failure or refusal of an officer to perform the duty imposed under s 198AD(2) to take an unauthorised maritime arrival from Australia to a regional processing country as soon as reasonably practicable. The appropriate remedy is mandamus.

113    The applicant submits, however, that habeas corpus is still available on the basis that the decision to detain the applicant is infected by jurisdictional error. The applicant applies the following process of reasoning:

(1)    A decision to detain under s 189(1) is a decision under the Act: McHugh at [12]-[13], [74], [298]-[300].

(2)    A decision under s 189 is a decision of a “rolling nature”: Burgess v Commonwealth of Australia (2020) 276 FCR 548 at [66]-[69], [80].

(3)    The decision to detain the applicant is infected by jurisdictional error, namely an error in construing s 196, rather than s 198AD, as applying to the applicant: Shrestha v Minister for Immigration and Border Protection (2018) 264 CLR 151 at [2].

(4)    If a decision is infected by jurisdictional error, it is no decision at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51], [53].

(5)    There being no decision at all under s 189, there is no lawful justification for the detention, so that a writ of habeas corpus should issue.

114    The applicant concedes that, for the purposes of s 189 of the Act, there is an officer who either knows or reasonably suspects that the applicant is an unlawful non-citizen.

115    Section 189(1) provides that 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”. In AJL20 at [33], the majority of the High Court cited with approval the following passage from the judgment of Hayne J in Al-Kateb v Godwin (2004) 219 CLR 562 at [254]:

[T]he provision is mandatory; the legislature requires that persons of the identified class be detained and kept in detention. No discretion must, or even can, be exercised. No judgment is called for.

116    The majority in AJL20 then stated at [35]:

The combined effect of ss 189(1) and 196(1) is that a non-citizen can be lawfully within the Australian community only if he or she has been granted a visa. Otherwise, an unlawful non-citizen must be detained until such time as he or she departs Australia by one of the means referred to in s 196(1), relevantly in this case removal under s 198.

117    It is the knowledge or reasonable suspicion of an officer that founds the authority, and requirement, to detain an unlawful non-citizen. Section 198AD(2) requires that an unlawful non-citizen who is an unauthorised maritime arrival be taken, as soon as reasonably practicable, to a regional processing country, and s 198AD(11) provides that a person who is being dealt with under s 198AD(3) by, relevantly, being placed on a vehicle or vessel, is taken not to be in immigration detention. Section 198AD, like s 196, prescribes the duration of the detention that is authorised by s 189(1): cf. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219 at [30]. As long as an officer has the knowledge or reasonable suspicion required under s 189(1) and the conditions in s 198AD(3) have not been fulfilled, the immigration detention of the person is authorised, and required. The error of the Secretary as to whether s 198AD applies to the applicant cannot affect the legality of the decision under s 189(1) to detain the applicant.

118    The Secretary has wrongly taken the view that the applicant is required to be detained in immigration detention until one of the requirements of s 196(1) is met. I have held that, instead, s 198AD applies and the applicant is required to be taken to Nauru as soon as reasonably practicable. Even though the Secretary has refused to perform the duty under s 198AD(2), the applicant’s immigration detention is authorised, and required, under s 189(1) until the applicant is (in the absence of Ministerial intervention) placed on a vehicle or vessel in accordance with s 198AD(3).

119    The application for a writ of habeas corpus must be rejected.

Relief

Consideration of the appropriate form of orders

120    I have indicated that an order in the nature of mandamus should be made. The respondents submit that the appropriate form of order should be:

An order in the nature of mandamus, requiring the Secretary to perform, or to cause to be performed, the duty under s 198AD(2) of the Migration Act 1958, to as soon as reasonably practicable, take the applicant from Australia to a regional processing country.

121    The applicant submits that the appropriate form of order should be:

[An] order in the nature of mandamus requiring that the Minister through her or his officers, unless, at an earlier time he is granted a visa, take the applicant from Australia pursuant or having regard to section 198AD of the Migration Act.

122    The order sought by the applicant is too absolute. It makes no allowance for the possibility that s 198AD may cease to be applicable, such as if there is refusal in writing by Nauru to accept the applicant or that the Minister may exercise the power under s 198AE. If that occurred, there would no longer be any duty imposed upon the Secretary under s 198AD(2). There is also the difficulty that the Minister does not appear to be an “officer”, and it may not be appropriate to describe “officers” as “her or his officers”. I will make an order in the form suggested by the respondents.

123    However, the order suggested by the respondents does not, of itself, adequately reflect the fault that is to be remedied. The fault is the Secretary’s refusal or failure to perform the duty to take the applicant to Nauru, regardless of whether or not it is reasonably practicable to do so, arising from a misconstruction of s 198AD. A declaration reflecting correction of that error would have utility. Accordingly, I will make a declaration to the effect that s 198AD applies to the applicant.

Whether conditions on the applicant’s detention should be imposed

124    The final issue is whether any conditions can and should be placed upon the applicant’s detention pending the Secretary carrying out the duty under s 198AD(2). The applicant submits that orders should be made requiring that the applicant be detained at the home of one of his supporters, in either Brisbane or Perth. The respondents oppose any such orders.

125    The applicant relies upon WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625, where French J observed at [56], in relation to the obligation under s 198(6) of the Act to remove an unlawful non-citizen as soon as reasonably practicable:

The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister. And it may be that, as an incident of such a mandatory order, the Court might direct conditions of detention which are calculated to minimise the harm suffered by the detainee as a consequence of the delay in effecting removal.

126    The applicant submits that the definition of “immigration detention” makes it plain that an unlawful non-citizen can be detained under s 189 at any location at all, provided that the person is, “in the company of, and restrained by”, one or more officers. The applicant submits that the Court is not precluded from ordering detention in that manner at a particular location.

127    The respondents submit that the Court has no power to require an officer to detain the applicant in a residential environment, or any particular place. They submit that such a power would be inconsistent with the definition of “immigration detention” in s 5, which vests in the Minister, the power to specify a particular place of detention, and with s 197AB which vests in the Minister the power to make a residence determination order. It is also submitted that such a power would be inconsistent with s 273(1) which vests in the Minister the power to establish and maintain detention centres.

128    Any power of the Court to order, not just mandamus, but conditions of detention calculated to minimise the harm suffered by the detainee pending performance of the duty, will arise under s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). That section provides:

The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.

129    There are limits upon the kinds of orders that may be made pursuant to the power conferred under s 23 of the FCA Act. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Brennan J observed at 620-621:

…[Section] 23 confers on the Federal Court such powers as are necessary or incidental to the exercise of that Court’s jurisdiction. But that is not to say that the Court's discretion to mould relief is at large. The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue.

130    Another statute may also expressly or impliedly limit the power of the Court to make orders under s 23 of the FCA Act. In Thomson Australian Holdings Proprietary Limited v Trade Practices Commission (1981) 148 CLR 150, the majority of the High Court held at 161:

When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act.

131    Section 189(1) of the Act provides, relevantly, that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. As the applicant is known by officers to be an unlawful non-citizen, the applicant must be detained. The Court cannot order the applicant’s release from detention: AJL20 at [49]-[52], [73].

132    The expression “detain” is defined in s 5 to mean, relevantly, “keep, or cause to be kept, in immigration detention”. The expression, “immigration detention” is then defined in s 5 to mean:

(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 or Australian Border Force Commissioner 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).

…

133    Subdivision B, Division 7, Part 2 has the heading, “Residence determinations”. The subdivision provides, relevantly:

197AA     Persons to whom Subdivision applies

This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.

197AB     Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.

(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.

…

134    The Act establishes three forms of “immigration detention”. They cover different, although overlapping, territory. The first form, in paragraph (a) of the definition of “immigration detention” in s 5(1), involves an unlawful non-citizen being “in the company of, and restrained by” an officer or other authorised person. The second, in paragraph (b) of the definition, requires the person to be “held” by, or on behalf of, an officer, in a detention centre; or in a prison or remand centre; or in a police station or watch house; or on a vessel (where s 249 applies); or in another place approved by the Minister.

135    The difference between the first form and the second form may be illustrated by using an example of an unlawful non-citizen who is in immigration detention when “held” in a detention centre and remains in immigration detention while “in the company of, and restrained by” an officer when taken to a hospital. It can be accepted that the first form will generally be used in the short-term, whereas the second form may be used for both short-term and longer-term detention.

136    In respect of the first form of immigration detention, on its ordinary meaning and in the context of the Act as a whole, “restrained” includes direct physical restraint, but also encompasses directing restrictions or limits upon the physical space in which an unlawful non-citizen has liberty. It is intended to convey the meaning that the physical freedom of movement of a person is curtailed in such a way that might otherwise be actionable under the tort of false imprisonment: see Okwume v Commonwealth of Australia [2016] FCA 1252 at [115]. That is, constant, direct, physical restraint is not required. This is made clear by other uses of the term “restrain” in the Act where the term is used with reference to whole areas, such as “on” (not “within”) a “vehicle or vessel”, “ship or aircraft”: see, for example, ss 198AD(3)(b), 198B(2)(b), 245F(9A)(b). It follows that a person may be restrained by an officer for the purpose of detention under s 189(1) by being confined, physically or by direction, to a particular place. The Act does not require the place of such confinement to be specified by a direction or determination of the Minister.

137    In respect of the first form of immigration detention, the unlawful non-citizen must also be “in the company of” an officer. That does not necessarily require constant, direct physical surveillance. For example, an unlawful non-citizen undergoing surgery does not cease to be in “immigration detention” simply because an accompanying officer waits outside the closed door of the operating theatre. However, physical proximity is required. In that way, a direction for confinement in a particular place can be enforced.

138    The second form of immigration detention (“held”) does not refer to direct physical restraint, but connotes restriction of movement within an enclosed or limited physical space, such as a detention centre, prison, vessel or other place. The requirement to be “held” by, or on behalf of, an officer “in” another place approved by the Minister within paragraph (b)(v) of the definition of “immigration detention” in s 5(1) of the Act also indicates that the unlawful non-citizen is confined to or within the limits of a physical space. However, the unlawful non-citizen is not required to be in the company of an officer.

139    The third form of immigration detention, under s 197AB(1), is where the Minister makes a determination to the effect that a person is to “reside at a specified place, instead of being detained at a place covered by the definition of ‘immigration detention’” in s 5(1) of the Act. There is an evident distinction between the third form of immigration detention and the second form. Under the third form, while the unlawful non-citizen must reside at a specified place, the person is not (subject to any conditions imposed), prevented from leaving that place from time-to-time. There is also an evident intention to distinguish the third form of detention from the first form in that the unlawful non-citizen is not required to be in the company of and restrained by an officer.

140    In respect of the second form of immigration detention, the Court cannot compel the Minister to exercise the power to approve another place: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [13], [59], [70], [99] (which considered the Minister’s power under ss 46A and 195A to grant a visa to a detainee); SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569; (2012) 292 ALR 29 at [9], [113] (which considered the Minister’s power to make a residence determination under s 197AB). That would be inconsistent with s 273(1), which vests in the Minister the power to establish and maintain detention centres, and with the definition of “immigration detention” in para (b)(v) of s 5(1) of the Act which makes it clear that it is exclusively for the Minister to approve “another place” as a place of detention within which an unlawful non-citizen is to be confined. It is apparent that the legislature, by implication, intended to exclude the power the Court might otherwise have under s 23 of the FCA Act to order the detention be in “another place” under the second form of immigration detention.

141    In respect of the third form of immigration detention, s 197AB(1) exclusively confers upon the Minister the power to make a residence determination. The powers implicit in para (b)(v) of the definition of “immigration detention” cannot be extended, “to achieve the benign form of accommodation contemplated by s 197AB”: SBEG v Secretary, Department of Immigration and Citizenship (2012) 208 FCR 235 at [40]. It is apparent that the legislature intended to exclude the power the Court might otherwise have under s 23 of the FCA Act to make a residential detention order under the third form of immigration detention.

142    I have not been referred to any authority which dictates that the Court cannot, under the power conferred by s 23 of the FCA Act to make orders that are appropriate, direct that officers are to detain an unlawful non-citizen at a particular place using the first form of immigration detention.

143    Further, in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 259 FCR 576, the Full Court considered an appeal against an interlocutory injunction in circumstances where it was alleged that the Secretary was negligent in subjecting the applicant to particular conditions of detention. Justice Lander (with whom the other members of the Court agreed) held at [128]-[133] that there was a serious question to be tried in relation to a continuing breach of a duty of care by the Secretary, and that the balance of convenience favoured requiring the applicant to be moved to another detention centre. His Honour considered at [143] that the appropriate order was an interlocutory injunction restraining the Secretary from detaining the applicant at particular detention centre in South Australia and from removing the applicant to a particular detention centre in Western Australia. This case was concerned with the second form of immigration detention, but it demonstrates that, in a matter where the Court has jurisdiction, it is within the power of the Court to achieve particular conditions of detention by ordering that an unlawful non-citizen be detained at a particular detention centre. It cannot be thought, therefore, that the conditions upon which a detainee is detained, and the place of detention, are exclusively for the Minister or for officers to determine.

144    Under the first form of immigration detention (an unlawful non-citizen being in the company of, and restrained by an officer) it is for officers to decide where the person is to be detained. Further, it is for officers to determine whether that form of detention will be used. The Minister does not make such a determination, or is at least not conferred with the exclusive power to make that determination: cf. WKMZ v Minister for Home Affairs [2020] FCA 1127 at [115]. These officers are the same officers who are required to perform the duty under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country.

145    Section 23 of the FCA Act confers upon the Court the power, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court thinks appropriate. It may be noted that the Act expressly limits the application of provisions of the FCA Act such as Part IVA, ss 24, 32AB and 33, but not s 23. There is no basis for concluding that the legislature excluded the power of the Court to order that officers detain a person under the first form of detention and the place of such detention.

146    In a circumstance where officers have refused or failed to perform a statutory duty, orders may be made pursuant to s 23 of the FCA Act to minimise the harm suffered as a consequence of that default. The Court has the power to make orders, ancillary to mandamus, that officers detain an unlawful non-citizen by causing the person to be in the company of, and restrained by officers at a particular place (even if that place is not a detention centre, prison, watch house, or other place of detention approved by the Minister).

147    The respondents submit, however, that any power to impose additional conditions on the grant of mandamus would necessarily be at the discretion of the Court and, for several reasons, the discretion should not be exercised in favour of ordering the detention of the applicant at the home of one of his supporters.

148    The respondents submit, first, that, at the earliest, the obligation to take the applicant under s 198AD(2) arose on 12 February 2021 at the conclusion of the merits review process, and that this is not a case where there has been extensive or unwarranted delay in performing the duty. Second, the affidavit of Gerard Watts (which was not ultimately admitted into evidence) makes clear that detention in the conditions envisaged by the applicant is not appropriate having regard to the security risk posed by the applicant and his previous behaviour in detention. Third, no assessment has been made as to whether the places of residence proposed for the applicant are appropriate and safe for the purposes of detention. Fourth, detention in a home environment, involving a team of guards and additional ancillary costs such as transport, cleaning and catering, is not an appropriate use of public resources. Fifth, the directions sought by the applicant would tend to undermine the policy of ss 189 and 196 of the Act, namely the mandatory detention of unlawful non-citizens. In particular, the making of the directions would tend to undermine the policies and procedures developed to ensure that detention placements and the grant of bridging visas are tailored to the specific circumstances of an individual case. Sixth, there is insufficient evidence to suggest that the applicant has any specific characteristic which would make it essential for him to be detained in circumstances other than the ordinary environment of a detention centre. Seventh, there is no evidence that the property owners would permit a guard to be in their homes in the “company” of the applicant at all times.

149    Before discussing the evidence concerning the proposed detention of the applicant at the home of one of his supporters, it is relevant to describe something of the procedural history of the mandamus application.

150    By orders made on 24 June 2021, I directed that the parties file and serve written submissions concerning the judgment of the High Court in AJL20. By consent orders made on 16 July 2021, the time for compliance was varied such that the applicant was to file and serve his submissions by 9 July 2021, and the Minister was to file and serve submissions in response by 23 July 2021. The orders requiring the Minister to file and serve submissions were vacated by consent on 9 August 2021. The written submissions filed by the applicant accepted that habeas corpus was no longer available, but contended that mandamus, together with directions requiring that the applicant be detained at the home of one of his supporters, should be granted. The applicant filed further written submissions concerning AJL20 on 8 September 2021, and the Minister filed written submissions on 14 September 2021 which addressed and opposed the orders sought by the applicant.

151    On 30 August 2021, I made orders by consent that the hearing of the mandamus application be listed for 15 September 2021. I ordered that the respondents file and serve any further affidavits upon which they intended to rely by 4.30 pm on 3 September 2021. The respondents did not file any affidavits by that time.

152    At the hearing of the mandamus application, the respondents sought to rely upon the affidavit of Mr Watts, a senior officer of the Australian Border Force, deposing to matters going to the appropriateness of orders that the applicant be detained in a residential setting. The affidavit sought to demonstrate that the applicant may not be suitable for detention at the home of his supporters, that there was a need for a security assessment to be carried out in respect of his supporters’ home and an assessment as to the costs of detention at his supporters’ home. The affidavit was served at about 1.00 pm on 14 September 2021, the day before the hearing. The affidavit was served well outside the 3 September 2021 date permitted under the consent order of 30 August 2021. The respondents had not sought an extension of time, and did not apply for any adjournment of the hearing.

153    The applicant objected to the admission of Mr Watts’ affidavit into evidence. I upheld that objection. There had been a failure by the respondents to comply with the consent orders. I accepted that the late service of the affidavit would cause the applicant prejudice. The applicant is detained at the Perth Immigration Detention Centre in Western Australia, and there could not have been adequate time for his lawyers to obtain instructions and prepare an affidavit in response. There was no explanation provided in admissible form as to why the respondents had not complied with the order of 30 August 2021 and why there had been late service of the affidavit. The respondents’ conduct was in breach of their obligation under s 37N(1) of the FCA Act. In these circumstances, I declined to admit the affidavit into evidence.

154    The consequence is that there is no evidence from the respondents to demonstrate the unsuitability or impracticability of the conditions of detention sought by the applicant, or the unsuitability of the applicant for such detention.

155    I have referred to the affidavit of Ms Sullivan, a Departmental officer, who deposes that, if the applicant is to be removed to Nauru, there would have to be consultation and an in-principle agreement to receive the applicant and a health, security, protection and management assessment. If there are obstacles to transfer, the transfer may be deferred until the relevant issues are resolved. If there are obstacles that cannot be resolved, the case will be referred to the Minister for consideration of the exercise of her powers under s 198AE of the Act.

156    The applicant relies upon the affidavit of Dane de Leon affirmed on 9 July 2021, who resides alone in a two-bedroom apartment in Brisbane, and is willing to have the applicant live there free of charge, even if this arrangement were to require that an officer or officers be stationed there at all times.

157    The applicant also relies upon an affidavit of Anette Hermann. Ms Hermann deposes that she and her husband know the applicant. Ms Hermann and her husband are the only occupants of a six bedroom house in Perth. They would be happy to have the applicant live with them free of charge for as long as is required. They are also willing and able to pay for his food and other daily consumption needs. Ms Hermann states that she is content for, “a guarding officer to remain stationed on our property”.

158    There is in evidence a report of Guy Coffey, a clinical psychologist, dated 16 December 2020 concerning the applicant. Mr Coffey notes that the applicant has attempted self-harm and has engaged in a hunger strike during his period in detention. The applicant does not speak, and has been diagnosed with “psychogenic mutism”. Mr Coffey was unable to determine whether or not the applicant’s mutism is involuntary. Mr Coffey is of the opinion that the applicant’s volatility, self-harm and adversarial relationship with detention staff is a product of the interaction between emotional dysregulation associated with post-traumatic stress disorder, chronic demoralisation and the effect of extended detention on his personality functioning.

159    Mr Coffey states that there is unequivocal clinical and research evidence that the mental health of people held in immigration detention deteriorates over time, that exposure to violence in detention hastens the deterioration, and that a lack of access to structured and meaningful activity can contribute to a decline in well-being. Mr Coffey states that the closed environment, over time, appears to incubate a tendency toward self-harming in response to emotional distress. Mr Coffey believes that an interaction between post-traumatic stress disorder, the applicant’s personal characteristics and the detention environment explains the applicant’s mental state. In his opinion, the largest contribution to the applicant’s mental state has been his extended detention. Mr Coffey would not anticipate any significant improvement in the applicant’s mental health while he is being detained in his current circumstances. Mr Coffey indicates that if the applicant were released into the community and received appropriate psychological treatment, his psychological condition would improve.

160    Ms de Leon, Ms Hermann and Mr Coffey were not required for cross-examination. I accept their evidence.

161    If the applicant is to be required to be detained in the home of one of his supporters, it should be Ms Hermann’s home. Ms Hermann’s home has six bedrooms, which should be large enough to accommodate the applicant and one or more officers to guard him. It also has the advantage of being in Perth, so that transport of the applicant from the Perth Immigration Detention Centre should be less complex than transporting the applicant to Brisbane.

162    It is necessary to determine whether orders requiring that the applicant be detained at the home of his supporters while the Secretary carries out the duty under s 198AD(2) are “appropriate” within s 23 of the FCA Act. That requires an evaluation of where the interests of justice lie.

163    I have found that the Secretary’s refusal and failure to perform the duty under s 198AD(2) is long-standing, in circumstances where it became reasonably practicable to take the applicant to Nauru some eight years ago. Accordingly, I reject the respondents’ submission that this is not a case where there has been extensive or unwarranted delay in performing the duty under s 198AD(2).

164    If the duty under s 198AD(2) had been carried out, the applicant would have remained in a regional processing country while his claim for refugee status there was processed. In Plaintiff M68, the plurality at [5] (and Gordon J at [311]) observed that if a person is recognised by Nauru as a refugee, the person is granted a temporary settlement visa and may depart and re-enter Nauru. The High Court also observed at [19], [60], [111], [218], [344] that, in 2015, the government of Nauru had announced that freedom of movement for asylum seekers would be allowed 24 hours per day, seven days per week. Accordingly, if the applicant is taken to Nauru, the applicant will be at liberty in that country. It is evident that the applicant regards liberty in Nauru as preferable to detention in Australia.

165    The respondents have failed to even begin the process of effecting the taking of the applicant to Nauru. Ms Sullivan has not made any estimate of the time it could take for the applicant to be taken to Nauru. It could be weeks, or months, or longer. In the meantime, the applicant will remain incarcerated in immigration detention in Australia.

166    The cause of prolonged detention of the applicant in detention centres in Australia is the Secretary’s refusal or failure to perform the duty required under s 198AD(2). It is not through the fault of the applicant. The fault lies with the Secretary.

167    Mr Coffey’s unchallenged evidence is clear that ongoing and prolonged detention in the environment of detention centres is contributing to the applicant’s poor state of mental health. Even in the absence of that evidence, I would have accepted that prolonged involuntary detention is deleterious and likely to affect the emotional state and mental health of any person. The respondents submit that there is insufficient evidence that the applicant has any specific characteristic which would make it essential for him to be detained in circumstances other than in a detention centre. I am satisfied, however, that incarceration in detention centres is having a significant effect upon the applicant’s mental health and that detention at the Hermanns’ home will be less deleterious to his emotional state.

168    The respondents submit that Ms Hermann’s evidence fails to demonstrate that she and her husband are willing to have two or three officers in their home at all times. I understand this submission to refer to Ms Hermann’s statement that she is content for, “a guarding officer to remain stationed on our property”. It is too pedantic a reading of Ms Hermann’s affidavit to suggest that she is saying that she is willing to have one officer stationed at her home, but not more than one. It is unsurprising that the affidavit would emulate the language of the Act, which uses the singular, “an officer”. It is also a misreading of Ms Hermann’s evidence to suggest that she is not willing to have officers inside her home, when she expressly states that she will make available ablution facilities needed by any officer. I also observe that this submission was not foreshadowed, so the applicant did not have the opportunity to meet it through further evidence.

169    The respondents submit that the applicant should not be detained at his supporters’ home as no assessment has been made as to whether it is an appropriate and safe environment for the purposes of detention. The respondents were provided with the opportunity to produce affidavits, which could have addressed the appropriateness of detaining the applicant at his supporters’ home and any safety concerns. They failed to take that opportunity. I am satisfied that the Hermanns’ home is capable of being made safe as a place of detention with the provision of an adequate number of guards. Time will be allowed for an assessment of that number to be made.

170    The respondents also submit that detention in a home environment, involving a team of guards and additional ancillary costs such as transport, cleaning and catering, is not an appropriate use of public resources. It can be inferred that there will be substantial expense involved above the cost of detaining the applicant in a detention centre. However, the respondents have not quantified the cost. In the absence of such evidence, I am unable to conclude that the cost outweighs the benefit of conditions that are designed to alleviate the consequences of the Secretary’s default.

171    The respondents submit that the directions sought by the applicant would tend to undermine the policy of ss 189 and 196 of the Act, namely the mandatory detention of unlawful non-citizens. That submission cannot be accepted. There is no question of the applicant being released from immigration detention. The proposed conditions concern the form and place of detention.

172    I am satisfied that the interests of justice make it appropriate to order that the applicant be detained at the Hermanns’ property pending compliance by the Secretary or other officers with s 198AD(2). I intend that the applicant be detained within the external boundaries of the property, rather than being confined to the house itself. I will not set out the Hermanns’ address for reasons of privacy and security.

173    The order will require that such detention commence within 14 days of this judgment so that there can be time for appropriate arrangements to be put in place.

174    The proposed order will be interlocutory as it does not finally determine the rights of the parties. I propose to allow the parties and the Hermanns liberty to apply in case there are any difficulties with the nature or terms of detention which may require directions from the Court.

175    I will also require the parties and the Hermanns to participate in a mediation before a Registrar of the Court to reach agreement upon the logistics of detention at the Hermanns’ property. In that respect, I reiterate what I have said at [137]-[138] of these reasons.

176    My preliminary view as to costs is that the respondents should pay the applicant’s costs of the mandamus application (proceeding VID 503 of 2021), and that the costs of the application for habeas corpus and other relief (proceeding VID 89 of 2021) should be reserved since that proceeding has not yet been completed. I will consider any submissions as to any different orders as to costs that may be sought.

Associate:    

Dated:    13 October 2021