Federal Court of Australia

FDT20 v Minister for Home Affairs [2021] FCA 1484

ORDERS

THE COURT ORDERS THAT:

1.    Leave to amend the notice of appeal filed on 12 August 2021 is refused.

2.    The appeal be dismissed.

3.    The appellant pay the respondents’ costs, as agreed or taxed.

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

REASONS FOR JUDGMENT

GRIFFITHS J:

1    By way of a notice of appeal filed on 12 August 2021, the appellant appealed from orders dated 2 August 2021 by the then Federal Circuit Court of Australia (FCCA). The primary judge dismissed FDT20’s application for a declaration that his immigration detention was unlawful, a writ of habeas corpus, and a writ of mandamus compelling his removal to a regional processing country.

2    On 22 November 2021, the appellant provided a proposed amended notice of appeal, for which he required leave. This was only two days before the appeal was listed for hearing and did not comply with the Court’s orders of 23 August 2021. As will emerge, the appellant also sought to rely upon a series of affidavits and one of three sets of outlines of written submissions, all of which were provided well outside the time specified in the Court’s orders.

3    I will set out some relevant background matters drawing primarily on the primary judge’s reasons for judgment (see FDT20 v Minister for Home Affairs [2021] FCCA 711).

Some relevant background matters

4    Before the FCCA, the appellant was represented by the same solicitors as appear for him in this appeal. His judicial review challenge was one of ten cases (known as the “Medevac cases”) which were heard by the primary judge in April 2021. The primary judge reserved his judgment in the appellant’s proceeding and five other matters, while four additional cases were dealt with on the papers.

5    The primary judge summarised the appellant’s application for judicial review. His Honour noted at [3] that there was one particularised ground, namely that the appellant’s detention was unlawful because the respondents were “unwilling or unable to remove [him] to Papua New Guinea” as required by ss 198(1) and 198(1A) of the Migration Act 1958 (Cth). In his particulars, the appellant said that he had made written requests to be removed to Papua New Guinea (PNG) on 15 November and 20 December 2020 and that the respondents were unable to remove him to PNG.

6    At [4], the primary judge noted that the appellant had filed an Application in a Case on 10 March 2021 (the First Application). His Honour described that application as involving an application for a writ of habeas corpus and a writ of mandamus compelling the respondents to remove him “to a regional processing country”. As will emerge, this may be too broad a description of the application. A copy of the First Application was not included in the Appeal Book for the purpose of the appeal, but the grounds of the application are set out at [4] of the primary judge’s reasons for judgment. Those grounds are as follows:

1.    The applicant’s detention is not authorised by law as he is being detained otherwise than for the purpose of removal under the Act as soon as reasonably practicable (removal purpose) –

a.    from the time the first applicant no longer needed to be in Australia for the temporary purpose for which he had been brought to Australia when it was indicated by his Counsellor he was told that his condition could not be helped by at least 15th September 2020 when he was designated by QPASTT as being at high risk of harm due to being in detention and needing to be out of held detention.

b.    from the time the applicant had made oral requests to the Minister for his return to PNG, ie from 2019, and from the time he made a written request for removal on 15th November 2020: s 198(1) Migration Act 1958.

2.    Each circumstance of the first applicant either no longer needing to be in Australia for the temporary purpose or the applicant having made a written request to be removed, triggered an obligation upon the respondents to remove the applicant as soon as reasonably practicable.

3.    It was a condition of the applicant being brought to Australia in its agreement with the agent of the first respondent, the Australian Border Force, that the applicant would be returned to PNG when he no longer needed to be in Australia.

4.    The applicant has remained in detention since August 2019.

5.    The applicant’s detention is not authorised by law because the [respondents have] failed to undertake or carry into effect the removal purpose as soon as reasonably practicable.

7    Significantly, the primary judge confirmed later at [118] of his reasons for judgment that the First Application related only to PNG (footnotes omitted and emphasis added):

By his application for a constitutional writ, FDT20 seeks a declaration that his detention is unauthorised and an order for his release from detention. He contends that his detention is unlawful on the footing that the respondents have not removed him to PNG as soon as reasonably practicable. FDT20 has also filed an Application in a Case seeking the writ of habeas corpus and a writ of mandamus compelling the respondents to remove him to “the Regional Processing Country” (which, read in the context of Ground 3 of the Application in a Case, must be taken to be a reference to PNG).

8    The focus of the First Application was on the then applicant’s request that he be returned to PNG and not any other regional processing country (such as Nauru).

9    At [5] the primary judge described a second Application in a Case (the Second Application) which was handed up on behalf of another of the Medevac litigants (i.e. not FDT20) at the hearing below on 12 April 2021. The applicant there sought an injunction restraining his removal to Nauru and seeking declaratory relief, including on the basis that the threat to remove him to Nauru was an abuse of process. In further particulars, the appellant contended that the Removals Officer “is required, but has failed, to consider the applicant’s non-refoulement claims with respect to Nauru”. He claimed that he had non-refoulement claims with respect to that country. The primary judge upheld the Minister’s objection to the Second Application on the basis that he had been taken by surprise and was not able to deal with it. The primary judge referred also to the fact that the same issue had been raised in other proceedings in the Federal Court and, at the time of the trial, there was no prospect of the other applicant being removed to Nauru.

10    It is evident from [9] of the primary judgment that FDT20 also sought to rely upon the unfiled Second Application. The primary judge declined to permit FDT20 to rely upon the document. This is significant because, in essence, the application for leave to amend in the present appeal effectively seeks to raise the same ground which the primary judge declined to deal with below. In other words, the appellant is effectively seeking to have this appeal transformed into an exercise of the Court’s original jurisdiction.

11    The primary judge found that the appellant (i.e. FDT20) was an unauthorised maritime arrival, who arrived in Australia by boat on 24 July 2013. He was taken to PNG under s 198AD of the Migration Act on 19 December 2013. He claimed to be a refugee from Iran. It is significant to note, however, the primary judge’s finding at [10] that the appellant’s claim for protection in PNG was not accepted. This is a significant difference between the appellant’s position and that of the applicant/appellant in AOU21 v Minister for Home Affairs [2021] FCAFC 60, a case upon which the appellant here places heavy reliance but which, for reasons I will give later, is distinguishable.

12    The appellant was brought to Australian on 18 June 2019 under s 198B of the Migration Act for medical treatment for severe psoriasis and a major depressive disorder. As noted above, he made two written requests to be returned to PNG, the first on 15 November 2020 and the second on 11 December 2020. The primary judge noted at [13] that, on 22 February 2021, the applicant orally confirmed his request to be returned to PNG.

13    The primary judge noted that the appellant provided multiple affidavits in support of his judicial review application, including an affidavit dated 10 April 2021 in which he referred to harm which he said he suffered while on Manus Island in PNG.

14    The primary judge summarised at some length the appellant’s legal submissions below, with particular reference to his claim that his detention was unlawful.

15    In dismissing the appellant’s judicial review challenge, the primary judge followed the majority decision in Commonwealth of Australia v AJL20 [2021] HCA 21; 95 ALJR 567, which was published on 23 June 2021. His Honour also set out at [166] the respondent’s position as to why AOU21 is distinguishable in respect of the appellant’s claim that there was an obligation to conduct a non-refoulement assessment before his removal. It is well to set out at [166] of the primary judgment (footnotes omitted and emphasis added):

First, the fact that the Court in AOU21 made reference to the power in s 198AE of the Migration Act in its reasons is said to provide no present assistance to the applicants in the reserved proceedings. In AOU21, “the Commonwealth accepted” that an assessment pursuant to s 198AE may be required. That statement was made in the context of the facts in AOU21. The factual circumstances of that case are different from those of the applicants in the reserved proceedings, and do not presently assist. As is explained by the Court in AUO21 (sic), the applicant in that case led unchallenged evidence about his sexual orientation and previous experiences he had in PNG which he attributed to that orientation. It was in this specific context that the Commonwealth, in that case, accepted an assessment prior to removal was likely to be required. The respondents have made no equivalent admissions in relation to any of the six reserved proceedings, which involve very different considerations (which were addressed in detail in the respondents’ previous submissions, and briefly canvassed again below).

16    At [168], the primary judge summarised the respondents’ position concerning the reliance by FDT20 (and other applicants in the reserved proceedings) on AOU21 and, in particular, the reference by the Full Court there at [116] to the effect that s 197C of the Migration Act does not, in terms, apply to s 198AD. His Honour summarised the respondents’ response to that proposition as follows (footnotes omitted):

(a)    in circumstances where a person still needs to be in Australia for the temporary purpose but has requested removal, then s 198(1) is the source of any obligation to remove. Section 197C does apply in these circumstances. Of the applicants in the reserved proceedings, this is relevant to FGS20, ADV21 and FKO20;

(b)    in relation to FDT20, the respondents refer to their submissions in relation to the matters listed for 12 and 14 April 2021, and the evidence described therein, about ongoing engagement with the PNG Immigration and Citizenship Authority as to whether PNG will resume receiving transitory persons. The lengthy submissions filed on behalf of FDT20 after the trial cover terrain that is well outside the limited issue on which the parties were invited to address the Court in subsequent submissions (in relation to AOU21). In circumstances where the matters have been heard, evidence has closed, and judgment is reserved, the respondents oppose those submissions being filed except to the extent that they expressly address the decision in AUO21. However, the respondents note briefly, in direct response to those submissions, that:

(i)    the suggestion of those submissions to the effect that AOU21 “imposes an obligation” to conduct a non-refoulement assessment in relation to any removal to an offshore processing location is wrong – the case establishes no such proposition;

(ii)    the applicant’s specific request was to be returned to PNG; and

(iii    the respondents’ efforts to remove the applicant to Nauru are detailed in the Sullivan Affidavit.

(c)    for FJH20 and FJS20, the respondents’ submission has been that no duty to remove arises. Accordingly, there is no reason for the Court to consider non-refoulement arguments raised by any of these applicants (and, as above, to the extent that points not previously advanced have been included in the post hearing submissions filed by the applicants in the reserved proceedings, these are not addressed by the respondents in their submissions).

17    In footnote [85] to his reasons for judgment, the primary judge also noted that FDT20 relied on Kerr J’s judgment in MB v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 442 at [66] (see [44] below in these reasons for judgment). The primary judge added that this “brief reference by a single judge (in relation to which the parties have not been invited to address the Court) is in the respondents’ submission of no assistance in relation to the reserved proceedings”.

18    The primary judge’s reasons for dismissing the judicial review challenge below commence at [170]. The primary judge expressly stated that he preferred the respondents’ submissions, subject to certain observations. His Honour explained at some length why the challenge must fail having regard to AJL20. At [181] his Honour said that he had concluded that a writ of habeas corpus is not available to FDT20, nor is a writ of mandamus. This was “because, during the relevant period, the Commonwealth took reasonable and practicable steps to remove the applicant from Australia”. His Honour added that he found that the temporary purpose for which FDT20 had been brought to Australia was now completed. His Honour observed at [183] that the appellant’s “multiple requests to be returned to PNG are consistent with the view that he no longer needs to be in Australia” and that he sought to be returned to PNG as a means of ending his detention.

19    The primary judge accepted the respondents’ evidence that active steps had been taken to implement the appellant’s requests to be returned to PNG, notwithstanding that the PNG government was generally not accepting the return of transitory persons. The primary judge noted that consideration had been given in March and April 2021 to the possibility of removing FDT20 to Nauru in accordance with an Instrument made under s 198AD(5) of the Migration Act and that this removal had been intended to occur on or about 12 April 2021. His Honour then noted that this did not occur because of the FCCA proceedings and the undertaking given by the respondents not to remove any of the applicants from Australia pending finalisation of the reserved judgments.

20    Accordingly, although the primary judge found that both ss 198AH(1A) and 198AD(2) of the Migration Act were engaged, he was satisfied that the duty imposed by the latter provision had not to date not been breached, with the consequence that the appellant had been lawfully detained from the point in time in which he no longer needed to be in Australia until the date of judgment.

Some procedural history in the appeal

21    It is desirable to set out in more detail some relevant procedural history relating to the appeal proceeding in this Court. As noted above, the original notice of appeal was filed on 12 August 2021. The three grounds of appeal in the original notice of appeal were as follows:

(a)    ground 1: the FCCA had erred in finding that the respondents had not failed to fulfil their obligation to take steps to effect the appellant’s removal;

(b)    ground 2: the FCCA failed to consider the appellant’s argument that s 198AH(1A)(c) was engaged on 14 October 2019 when the Minister failed to make a residence determination; and

(c)    ground 3: the FCCA fell into constructive error by failing to find that the “excluded Maritime Arrival provisions” in s 5AA(3) of the Migration Act were applicable to the appellant as an Iranian citizen.

22    On 23 August 2021, the Court made orders which granted the appellant a period of 28 days to file without leave a supplementary notice of appeal in accordance with r 36.01 of the Federal Court Rules 2011 (Cth). That period expired on 20 September 2021. No supplementary notice of appeal was filed within the permitted period. The orders dated 23 August 2021 also required the appellant, through his solicitor, to file his written submissions 20 business days before the hearing date. By an order dated 10 September 2021, the matter was listed for hearing for one day only on 24 November 2021. The appellant filed two affidavits by him dated 1 and 17 September 2021.

23    By an email dated Thursday, 4 November 2021, the appellant’s solicitor notified the Court that he had been unable to finalise the appellant’s submissions because of other work commitments and that he intended to do so over the following weekend.

24    On Tuesday, 9 November 2021, the appellant’s solicitor served on the respondents the first and second set of his written submissions, an affidavit dated 17 September 2021 and signed by the appellant on 9 November 2021 and a proposed amended notice of appeal. The appellant then subsequently provided a third set of written submissions on 15 November 2021, those submissions being some 13 pages in length notwithstanding the Court’s orders dated 23 August 2021 having imposed a cap of 10 pages.

25    On 18 November 2021 the appellant’s solicitor filed another affidavit affirmed by the appellant on that day.

26    On Sunday 21 November 2021, the appellant’s solicitor informed the Court and the respondents by email that he would prepare a further proposed amended “application”, in which he would press a ground of appeal relating to habeas corpus (on the basis that the High Court’s decision in AJL20 is distinguishable because the appellant is in “incidental detention” under s 198AD(3). He added that the appellant would also be seeking a declaration that the Secretary’s assessment of the reasonable practicability of returning the appellant to a regional processing country under s 198AD(2) is subject to compliance with Australia’s international obligations. The solicitor added that he would not be pressing “the Racial Discrimination Act ground”.

27    On Monday, 22 November 2021, the appellant forwarded the further proposed amended notice of appeal, for which he requires leave. It is desirable to set out page 4 of that document (without alteration and including tracking), which identifies the orders sought and the proposed single ground of appeal:

Orders sought

1.    The decision be set aside

2.    [As per Ground 2 of the Application in a case filed 10th March 2021 and subsumed into the final relief sought: ]

That Mandamus issue directing the Respondents to remove return the appellant applicant to Papua New Guinea a regional processing country.

3.    Declaration that the removal obligation under s.198AD was engaged on 14/10/2019 – when the Minister declined to intervene under s197AB and thus caused the applicant to remain in held detention adversely affecting his psychological and physical health as a result of which objectively he no longer needed to be in Australia for the temporary purpose for which he was brought to Australia, from that date.

4.    Declarations that

(i)    The appellant applicant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia from 14th October 2019

(ii)    All of the preconditions in s 198AH(1A) of the Migration Act 1958 (Cth) are met in respect of the appellant applicant since 14th October 2019

(iii)    Section 198AH(1) applies to the appellant applicant from 14th October 2019

5.    Writs of habeas corpus issue on the basis that the detention was punitive from 14th October 2019. the date that the Respondent Secretary started to deal with the Appellant under s.198AD(3), because in determining the reasonable practicability of return under s.198AD(2) of the Migration Act 1958, a non-refoulement assessment was not conducted.

6.    Declaration that the applicant is not an unauthorised maritime arrival.

7.    Costs be awarded to the Appellant

8.    Costs be awarded to the Applicant

Grounds

1     The Circuit Court erred in finding that the Respondent had not failed to fulfil its responsibilities with take steps to remove the applicant to PNG.

1.    The Circuit Court erred in refusing habeas corpus because it incorrectly considered him to be in Immigration Detention under s.196 and hence incorrectly applied the authority of Commonwealth of Australia v AJL20 [2021] HCA 21, and failed to find that he was in Incidental Detention under s.198AD(3) of the Migration Act 1958, from the time the Respondents started to take steps to take him to Nauru, without the conduct of a non-refoulement assessment in determining the reasonable practicability to take him there.

28    The reference in prayer 2 of the orders sought to “Ground 2 of the Application in a case filed 10 March 2021” is a reference to the relief sought by FDT20 in the First Application in the FCCA. The terms of ground 2 of that application are set out at [150] of the primary judge’s reasons for judgment:

Orders sought

…

2.    A Writ of Mandamus issue compelling the respondents to remove the applicant to the Regional Processing Country.

…

Grounds.

The applicant’s detention is not authorised by law as he is being detained otherwise than for the purpose of removal under the Act as soon as reasonably practicable (removal purpose) –

29    On 18 November 2021 and 23 November 2021 (i.e. the day before the hearing) the appellant’s solicitor filed two more affidavits by the appellant. The latter affidavit is dated 23 November 2021 but is said to have been signed by the appellant on 18 November 2021. The affidavit annexed a medical report which the appellant said he had received “today” (not making it clear whether that day was 18 November 2021 or 23 November 2021). The medical report is undated. It is written by Dr Rebecca Farley, a Senior Medical Officer with Mater Refugee Health in South Brisbane. Dr Farley stated that it was her strong recommendation that the appellant be released into the community as soon as possible, based upon her opinion regarding the appellant’s physical and mental health.

30    The appellant’s solicitor was told that the filing of the latter affidavit without the Court’s leave had been voided and he needed to seek leave at the commencement of the hearing the following day. He was also informed that he should file no further affidavits without the Court’s prior leave.

31    The respondents opposed the appellant having leave to rely upon the amended notice of appeal.

Analysis and determination

(a) Some legal principles summarised relating to leave to amend to raise a new ground on appeal

32    The principles which guide the exercise of the Court’s discretion to grant or refuse leave to amend to raise a new ground on appeal are well settled. They are set out in cases such as VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] ff per Kiefel, Weinberg and Stone JJ; Murad v Assistant Minister for Immigration and Border Protection [2017] FCAFC 73; 250 FCR 510 at [14]-[26] per Griffiths and Perry JJ and Vu v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 90; 276 FCR 516. It is well to set out the following passages from O’Callaghan J’s judgment in Vu (with whom Katzmann and Stewart JJ agreed):

42    In VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at 598-599 [46]-[48], the Full Court said:

Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O’Brien v Komesaroff (1982) 150 CLR 310; H v Minister for Immigration and Multicultural Affairs [[2000] FCA 1348]; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [20]-[24] and [38].

In Coulton v Holcombe (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7:

It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.

The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused.

See also Murad v Assistant Minister for Immigration and Border Protection (2017) 250 FCR 510 at 516 [19]-[20] (Griffiths and Perry JJ), and also 524-525 [55]-[58] (Mortimer J).

43    It is clear therefore that merit alone will generally be insufficient for the grant of leave. As Bromwich J observed in Han v Minister for Home Affairs [2019] FCA 331 at [8]-[9] (observations which were endorsed by Perry J in BEG17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 660 at [11]):

It may be convenient, and in many cases it will be entirely appropriate, to decide the question of whether to grant leave to advance an entirely new proposed ground of review in the form of a ground of appeal by giving dominant, but not exclusive, weight to the merit of the proposed ground. Merit is necessary, but not of itself ordinarily sufficient. Other features will generally need to be absent or present. Possible further considerations for the granting of leave in addition to merit include such things as an acceptable explanation for the ground not being run below, the nature and extent of any injustice (beyond a merely adverse result) that may result if the issue raised is not addressed, and the lack of prejudice to the opposing party. The decision to grant or refuse leave is then made by weighing the competing considerations, which are sometimes finely balanced.

The approach of relying predominantly on merit as the basis for leave becomes more problematic when there is no adequate explanation for the ground not having been advanced at the trial in the court below and other circumstances also tell against leave being granted. Care needs to be taken to ensure that a focus on merit does not have the troubling practical effect that a new ground sought to be raised is effectively heard and determined by this Court in the exercise of its appellate jurisdiction as though leave was not required. If that happens, the appellant may get to run an appeal which in truth is a new trial upon nothing more compelling than the fact that it might have succeeded if it had been run below. If the argument in support of the proposed ground finds favour, leave is then granted, and the appeal is allowed. If the argument does not find favour, leave is refused and the appeal dismissed. The grant or refusal of leave then turns on the success or failure of the new ground, making leave a mere formality. If so, an important principle in the administration of justice may be lost in the process.

44    In this case, no adequate explanation has been proffered for the failure to raise the points below and the points, for reasons which I will explain, are of doubtful merit, to say the least.

(b) Application of these principles to the present case

33    In brief, the respondents’ grounds of opposition to the grant of leave to amend may be summarised as follows:

(a)    The case which the appellant now seeks to advance is not only one which was not raised below, but it is inconsistent with the relief sought before the primary judge. That is because the premise of the appellant’s case below was that mandamus should issue requiring the respondents to remove him to PNG, whereas the appellant now wishes to claim that the respondents cannot lawfully remove or return him to any regional processing country unless they conduct a non-refoulement assessment.

(b)    Prior to 9 November 2021, the appellant had not given notice in the appeal proceeding of a non-refoulement claim in respect of PNG and if the appellant’s affidavits were admitted into evidence in the appeal, the Court would have an incomplete factual foundation. The appellant seeks to rely upon new evidence which post-dates the primary judge’s findings, namely evidence of his claim to fear being returned to PNG. Moreover, the respondents have not had an adequate opportunity to provide additional evidence bearing upon the question whether removal was reasonably practicable. The respondents contended that, if the new ground had been run below, they would have had an opportunity to adduce evidence. They would now suffer prejudice if the appellant was permitted to run the ground in the appeal.

(c)    A real question arises whether the non-refoulement claim is bona fide in circumstances where in the FCCA the appellant sought an order compelling the respondents to take him to PNG. Moreover, at the trial the appellant made a non-refoulement claim, but only in respect of Nauru and not PNG.

(d)    In any event, the respondents submitted that the substantive merits of the proposed new ground of appeal are very weak.

34    The respondents’ submissions opposing the grant of leave should be accepted. The first three grounds of opposition speak for themselves. I will say something more about the merits of the proposed single ground of appeal shortly. It is also appropriate to note the following multiple deficiencies in the proposed amended notice of appeal:

(a)    The second respondent is named as the first of the respondents on the cover page of the document, which also refers to “another named in the schedule”, and the second respondent’s name appears again in the Schedule.

(b)    Under the “[o]rders sought” the appellant seeks an order that “[t]he decision be set aside”, notwithstanding that it is made explicit that the appeal is from all the “orders” of the primary judge. Presumably the appellant sought to have those orders set aside.

(c)    Order 2 refers to ground 2 of the First Application in the FCCA. The appellant did not adduce in evidence a copy of that document.

(d)    Order 4 seeks various declaratory orders, namely declarations that:

(i)    the appellant no longer needs to be in Australia for the temporary purpose for which he was brought to Australia;

(ii)    all of the preconditions in s 198AH(1A) of the Migration Act are met in respect of the appellant; and

(iii)    section 198AH(1) applies to the appellant.

It is notable that these orders are not expressed by reference to the timing of the hearing of the trial below or publication of the primary judgment. Rather, they appear to operate by reference to the timing of this appeal, which simply highlights the respondents’ complaint concerning the inadequate evidentiary record for determining any such claim in the appeal.

(e)    Order 5 is an order that “writs” (plural) of habeas corpus issue on the basis that appellant’s detention was punitive from the date that the Secretary of the Department started to deal with his case under s 198AD(3) because in determining the reasonable practicability of returning the appellant under s 198AD(2) a non-refoulement assessment was not conducted.

(f)    Orders 7 and 8 claim that costs should be awarded not only to the appellant but also to the “Applicant”.

35    Perhaps more significantly, however, is the fact that, as noted at [10] above, the appellant sought leave to raise the proposed amended ground of appeal in the FCCA in the Second Application and the primary judge refused leave. Accordingly, the now proposed ground of appeal is being raised for the first time, thereby effectively seeking to transform the appeal into an exercise of original jurisdiction and without the respondents having had an adequate opportunity to adduce evidence in response. That is sufficient of itself to refuse leave to amend.

The merits of the proposed single ground of appeal

36    As is apparent from the tortured procedural history of this appeal proceeding, the appellant belatedly stated that he wished only to press the single ground in his latest proposed amended notice of appeal.

37    It is apt to set out the relevant parts of various provisions of the Migration Act upon which the appellant relies, namely ss 189, 196(1), 197C(1) and (2), 198, 198AD and 198AH (as in force at the relevant times):

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.

…

196    Duration of detention

(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

…

197C    Relevance of Australia’s non-refoulement obligations to removal of unlawful non-citizens under section 198

(1)    For the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

(2)    An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen under section 198 arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.

…

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.

Removal of transitory persons brought to Australia for a temporary purpose

(1A)    In the case of an unlawful non-citizen who has been brought to Australia under section 198B or repealed section 198C for a temporary purpose, an officer must remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved).

Note 1:    Some unlawful non-citizens are transitory persons. Section 198B provides for transitory persons to be brought to Australia for a temporary purpose. See the definition of transitory person in subsection 5(1).

Note 2:    Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).

…

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

…

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.

Note:    For when this section applies to a transitory person, see section 198AH.

(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.

(4)    If, in the course of taking an unauthorised maritime arrival to a regional processing country, an officer considers that it is necessary to return the unauthorised maritime arrival to Australia:

(a)    subsection (3) applies until the unauthorised maritime arrival is returned to Australia; and

(b)    section 42 does not apply in relation to the unauthorised maritime arrival’s return to Australia.

Ministerial direction

(5)    If there are 2 or more regional processing countries, the Minister must, in writing, direct an officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(6)    If the Minister gives an officer a direction under subsection (5), the officer must comply with the direction.

(7)    The duty under subsection (5) may only be performed by the Minister personally.

(8)    The only condition for the performance of the duty under subsection (5) is that the Minister thinks that it is in the public interest to direct the officer to take an unauthorised maritime arrival, or a class of unauthorised maritime arrivals, under subsection (2) to the regional processing country specified by the Minister in the direction.

(9)    The rules of natural justice do not apply to the performance of the duty under subsection (5).

(10)    A direction under subsection (5) is not a legislative instrument.

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.

…

198AH Application of section 198AD to certain transitory persons

(1)    Section 198AD applies, subject to sections 198AE, 198AF and 198AG, to a transitory person if, and only if, the person is covered by subsection (1A) or (1B).

(1A)    A transitory person is covered by this subsection if:

(a)    the person is an unauthorised maritime arrival who is brought to Australia from a regional processing country under section 198B or repealed section 198C for a temporary purpose; and

(b)    the person is detained under section 189; and

(c)    the person no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved).

Note:    Section 198C was repealed by the Migration Amendment (Repairing Medical Transfers) Act 2019. It provided for certain transitory persons to be brought to Australia for a temporary purpose (including the temporary purpose of medical or psychiatric assessment or treatment).

(1B)    A transitory person (a transitory child) is covered by this subsection if:

(a)    a transitory person covered by subsection (1A) gives birth to the transitory child while in Australia; and

(b)    the transitory child is detained under section 189; and

(c)    the transitory child is a transitory person because of paragraph (e) of the definition of transitory person in subsection 5(1).

(2)    Subsection (1) of this section applies whether or not the transitory person has been assessed to be covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol.

38    The appellant’s submissions in support of the proposed single ground of appeal may be summarised as follows. First, he contended that s 197C does not apply to a removal under s 198AD. He added that he has raised non-refoulement claims with respect to both Nauru and PNG and claims that he has a right to have a non-refoulement assessment conducted prior to his removal. He said that he suffered serious harm in PNG after he was taken there in 2013 and in circumstances were no non-refoulement assessment had been carried out. He relied on what the Full Court (Griffiths, Mortimer and Perry JJ) said in AOU21 at [54] and [116], as well as Kerr J’s observations in MB at [65]-[66].

39    In support of his contentions regarding Australia’s non-refoulement obligations, the appellant referred to Art 13 of the International Covenant on Civil and Political Rights and Arts 32 and 33 of the Convention Relating to the Status of Refugees (1951), as amended by the Protocol Relating to the Status of Refugees (1967).

40    The appellant relied upon the Full Court’s decision in Ibrahim v Minister for Home Affairs [2019] FCAFC 89; 270 FCR 12 regarding Australia’s non-refoulement obligations. He submitted that there would be a “lacuna” in the law if the appellant could be sent to a regional processing country without a non-refoulement assessment and would also give rise to an inconsistency with Australia’s international obligations, citing NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 6; 222 CLR 161 at [93]-[94] per Kirby J.

41    Turning to the merit of the proposed ground of appeal, it should be emphasised at the outset that, as stated in Vu at [43], merit alone will generally be insufficient to attract a grant of leave to amend. Other considerations include whether an acceptable explanation has been given for the ground not being run below, the nature and extent of any injustice that may arise if leave is not granted and the lack of prejudice to the opposing party.

42    Without descending into a detailed assessment of the proposed ground, on its face it appears weak. The core proposition that there is an obligation to conduct a non-refoulement assessment prior to the appellant being removed to PNG is inconsistent with authorities such as NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [13] and [53] per Wilcox, Lindgren and Bennett JJ:

13.    The appeals concern the proper construction of the verb ‘remove’, and, perhaps more importantly, its qualifier ‘as soon as reasonably practicable’. The appeals raise the issue whether death, torture, persecution or other mistreatment of an unlawful citizen which is likely, or even almost certain, to occur after he or she is removed from Australia to another country, is to be taken into account for the purpose of determining whether it is ‘reasonably practicable’ to ‘remove’ him or her from Australia. For the reasons given below, in our opinion, those matters are not to be taken into account for that purpose.

…

53.    This second limitation is of critical importance to the resolution of the appellants’ principal argument. In our opinion, the reference to reasonable practicability in the subsection does not require an officer to take into account what is likely, or even virtually certain, to befall the unlawful non-citizen after removal is complete; and removal is complete, at the latest, once the person has been admitted by, and into, the receiving country. Even if it is virtually certain that he or she will be killed, tortured or persecuted in that country, whether on a Refugees Convention ground or not, that is not a practical consideration going to the ability to remove from Australia. Rather, it is a consideration about a likely course of events following removal from Australia.

43    Further, as the respondents point out, the proposed ground is inconsistent with Gageler J’s statements in Plaintiff M96A/2016 v Commonwealth of Australia [2017] HCA 16; 261 CLR 582 at [37] and [40], as affirmed by the Full Court in AOU21 at [143]-[144]. Moreover, AOU21 is distinguishable, as is reflected in the primary judge’s acceptance (correctly) of the respondents’ submissions on that matter below, and which are set out at [15] and [16] above.

44    The appellant placed heavy reliance on Kerr J’s observations in MB at [65]-[66] (emphasis added):

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

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

45    These observations in MB are in the nature of obiter dicta. It is difficult to reconcile them with the Full Court’s decision in NATB. Nor is it apparent whether his Honour was taken to ss 198AA(b) or 198AH(2). Justice Kerr ultimately accepted in MB that there was a lawful basis for detention in that case. Moreover, Kerr J’s decision is not inconsistent with the core proposition advanced by the respondents, namely that s 198AD applies where s 198AH(1) provides that it does.

46    I am not persuaded that the merit of the proposed ground of appeal is sufficient, of itself, to warrant the appellant being granted leave to amend to run a new ground for the first time on appeal. Moreover, there are several other reasons why leave should not be granted, as set out above.

Conclusion

47    For these reasons, leave to amend the notice of appeal is refused. As the appellant acknowledged, it necessarily follows that the appeal must be dismissed, with costs.

Associate:

Dated:    29 November 2021