Federal Court of Australia

AZC20 v Commonwealth of Australia [2023] FCA 845

ORDERS

THE COURT ORDERS THAT:

1.    The applicant has leave to rely on the amended originating application and the amended statement of claim filed 17 June 2022.

2.    The originating application is dismissed.

3.    Subject to order 4, and absent agreement, the applicant pay the respondents' costs of the application to be taxed on a lump sum basis by a registrar of this Court.

4.    If any party seeks to vary order 3, they may contact the chambers of Banks-Smith J by email within 14 days setting out the orders sought, and directions will be made from chambers to facilitate resolution of any dispute as to costs.

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

REASONS FOR JUDGMENT

BANKS-SMITH J:

1    The applicant is a citizen of Iran who has been in long-term immigration detention as an unlawful non-citizen. He was refused a protection visa in 2013, but this application is not about the visa refusal decision. Rather, this application is brought in the Court's original jurisdiction, and relates to the applicant's concerns about access to health care while he has been in detention.

2    The applicant arrived in Australia in July 2013 when the boat on which he was travelling was intercepted by Australian authorities. On 6 October 2015 the applicant applied for a temporary protection visa. On 9 May 2018 a delegate of the Minister refused that application. Since that time, the applicant has pursued successive court proceedings challenging the visa refusal decision and seeking release from institutional immigration detention, including relevantly: AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCCA 2317 (application for review of decision of Immigration Assessment Authority allowed); AZC20 v Minister for Home Affairs [2021] FCA 1234 (application for habeas corpus dismissed, application for mandamus and ancillary relief relating to home detention allowed); and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; (2022) 290 FCR 149 (appeal allowed from AZC20 v Minister for Home Affairs [2021] FCA 1234, special leave granted, appeal heard by High Court).

3    The Commonwealth is the first respondent. It has established and maintains immigration detention facilities under s 273 of the Migration Act 1958 (Cth). The second respondent is International Health and Medical Services (IHMS). It has provided health and medical care to the applicant while in detention facilities.

4    In summary, the applicant seeks writs of prohibition prohibiting IHMS from having any involvement in the provision of health care to the applicant; prohibiting IHMS from sharing the applicant's health information with any third parties; and prohibiting the respondents from preventing the applicant's access to medical and health care of his choosing.

5    The pathway for a person seeking such relief is not readily apparent, particularly for a self-represented litigant who is in detention.

6    The Commonwealth submitted that the application does not fall within the original jurisdiction vested in this Court; that insofar as it is purportedly brought pursuant to the Migration Act, it does not invoke the Court's limited jurisdiction under s 476A of the Migration Act; and that it does not otherwise articulate a claim arising under laws made by Parliament that would invoke the Court's jurisdiction having regard to s 39B(1A) of the Judiciary Act 1903 (Cth). IHMS made the same submissions, but also submitted that the Court does not have the power to grant a writ of prohibition against it, as it is not an officer of the Commonwealth.

7    It is important to acknowledge that the Commonwealth accepted that the applicant could potentially bring claims of the nature he seeks to pursue by way of a differently articulated and pleaded case. That the applicant may be able to plead a claim in tort, for example, is apparent from decisions such as Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36; (2004) 219 CLR 486 where Gleeson CJ said:

[21]    Harsh conditions of detention may violate the civil rights of an alien. An alien does not stand outside the protection of the civil and criminal law. If an officer in a detention centre assaults a detainee, the officer will be liable to prosecution, or damages. If those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.

8    Further, it is well-established that the Court is not deprived of original jurisdiction in relation to a claim in tort, where the relief sought invokes federal jurisdiction: DBE17 (by his litigation guardian Marie Theresa Arthur) v Commonwealth of Australia [2019] HCA 47; (2019) 266 CLR 156 at [14]-[15]; McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 283 FCR 602 at [15], [18] (Allsop CJ), [74] (Besanko J), [174] (Mortimer J); Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; (2007) 165 FCR 471 at [22]; and Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17 at [409]-[459].

9    For example, as explained in S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217:

[4]    While the causes of action relied upon by each applicant are founded on negligence, the relief sought is by way of injunction against either the Secretary, Department of Immigration & Multicultural & Indigenous Affairs … or the Commonwealth. The former claim clearly invokes federal jurisdiction, the injunction being 'sought against an officer … of the Commonwealth': Judiciary Act 1903 (Cth), s 39B(1). The latter claim, being associated with the claim against the Secretary, equally clearly falls within the associated jurisdiction conferred by s 32(1) of the Federal Court of Australia Act 1976 (Cth).

10    However, the applicant in this proceeding does not claim relief in tort. He expressly brings this application under the Migration Act, the Judiciary Act and certain other legislation, regulations and conventions identified below. He does not identify officers of the Commonwealth. He seeks by way of relief only writs of prohibition.

11    Having regard to the potential for some of his claims to be pursued in a different manner, the applicant was provided with pro bono assistance by senior counsel. However, the applicant declined counsel's ongoing assistance, and the arrangement was terminated. A further attempt by the registrar to procure pro bono services was unsuccessful.

12    Therefore, the applicant pursued this application self-represented and with the assistance of an interpreter. I should add that the applicant declined to speak during the various hearings before the Court. He wished to communicate only in writing and with the assistance of an interpreter. The Court implemented a system whereby the applicant was able to type comments using a chat function visible to the Court, counsel and the interpreter. Based on his typed comments, the applicant appeared to have a sufficient level of English to communicate relatively well, but an interpreter was available and utilised throughout the proceedings and, where necessary, the applicant's comments were interpreted. All typed comments were read into the transcript.

Relief sought by amended originating application

13    The applicant filed an originating application in this Court in March 2022. It is not necessary to set out the original grounds. Orders entered on 13 April 2022 allowed for the filing of an amended application by 3 May 2022. The applicant provided a proposed amended application on 17 June 2022, and claimed the following:

1.    First and Second Respondents Respect and acknowledge of Applicant's withdrawal consent to them that had been made previously regarding health care to act in Applicant's behalf.

2.    First Respondent acknowledge the health care needs of Applicant and allow him to visit medical practitioners of his trust.

3.    Second Respondent not allowed to make any medical opinions without Applicant Knowledge and Presence or and share these assessments with any third party.

4.    Legally prescribed medications by public medical practitioners to be dispensed to the Applicant [and] no longer needs the IHMS Doctors permissions or their re-prescription.

14    The proposed amended application was filed with an amended statement of claim, also dated 17 June 2022, which contains the following prayers for relief:

33.    A prohibition writ directed to the First Respondent the right of medical health of choosing trusted competent medical practitioners.

34.    A prohibition writ directed to the First and Second respondents to disclosing confidential medical records to any third party including public medical practitioners without my knowledge according to law.

35.    A writ of [prohibition prohibiting] the respondents, its doctors, nurses of providing any medical care to the applicant until the conclusion of this procedure because of conflict of interests.

15    The applicant requires leave to rely on the amended originating application.

16    The power of the Court under r 8.21(1)(g) of the Federal Court Rules 2011 (Cth) to grant or refuse leave to amend an originating application must be exercised in a way that accords with the Court's overarching purpose to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible: Australian Securities and Investments Commission v Cassimatis (No 6) [2016] FCA 622 at [8] (Edelman J).

17    Although differently expressed, the relief sought in the proposed amended application is broadly similar to that in the original application. Counsel for each respondent indicated that they did not oppose either the grant of leave for the applicant to rely on the proposed amended application, nor its late filing, whilst maintaining their objection to competency discussed below. The respondents addressed the substance of the proposed amended application and statement of claim in their submissions. Accordingly, it is appropriate that leave be granted to the applicant to rely on the amended originating application and amended statement of claim dated 17 June 2022.

18    I add that the applicant also initially claimed interlocutory relief as follows:

1.    Access to private medical practitioners such as GP, Psychologist and Psychiatrists

2.    Making Surgery appointments with ENT.

3.    Inpatient admitting at psych wards.

19    The respondents' submission as to such relief was that if the application were dismissed, then it would follow that the interlocutory relief would not be granted.

Statement of claim

20    After setting out his immigration and procedural history, the applicant describes his claims in his amended statement of claim. In summary, the applicant states that:

(a)    during his time in detention he has been 'tortured mentally and physically', with IHMS and the Department forging documents and 'calling it medical opinion';

(b)    he was found to have Personality Disorder Cluster B by an IHMS psychiatrist, and later Post-Traumatic Stress Disorder;

(c)    he made a complaint regarding IHMS with no result;

(d)    IHMS is providing medical reports to the Commonwealth Ombudsman every three months, and that these reports are selective and inaccurate records that do not disclose his actual condition;

(e)    he has withdrawn his consent from IHMS but they continue doing 'whatever they were doing', and saying 'I have no choice as I am in immigration detention'. For example, the applicant claims to have made an appointment with a private general practitioner, only for IHMS to cancel that appointment on his behalf;

(f)    he had been on a hunger strike as a means of objecting to 'this cruel policy making me suffer but they were willing to kill me instead of letting me … see a GP or psychologist of my own';

(g)    he has the right to see any medical practitioner 'of his need'; and

(h)    IHMS is a 'real danger and threat to my health' and is causing him harm that is leading him to consider suicide, and he refers to an example of a friend similarly affected by IHMS.

21    The applicant claims to have 'multiple footage, videos and documents to prove [the above matters] beyond reasonable doubts'.

22    In his submissions, the applicant elaborated on his grievances with the care provided by IHMS. These grievances include:

(a)    IHMS doctors refusing to provide healthcare because he refused to surrender his mobile phone prior to entering the consultation room;

(b)    IHMS refusing to make further healthcare appointments on the basis that he had not attended previous appointments, when he had in fact attended but not been seen because of the mobile phone issue;

(c)    being brought to appointments with IHMS mental health nurses by Serco guards against his will;

(d)    IHMS ignoring the assessments and treatments recommended by external health practitioners;

(e)    IHMS refusing to allow him to use medication prescribed by private doctors and hospitals unless re-prescribed by an IHMS doctor; and

(f)    IHMS sharing the applicant's medical records without his knowledge or consent with third parties, including medical practitioners, the Ombudsman, and Australian Border Force officers.

23    The prayers for relief enunciated relief on the basis of writs of prohibition only. As summarised above, the impugned conduct can fairly be viewed as covered by proposed writs of prohibition prohibiting IHMS from having any involvement in the provision of health care to the applicant; prohibiting IHMS from sharing the applicant's health information with any third parties; and prohibiting the respondents from preventing the applicant's access to medical and health care of his own choosing.

24    However, particularly having regard to the fact that the applicant proceeded on a self-represented basis, I have had regard to the potential for the desired outcomes described in his amended application and amended statement of claim to be framed more generally by way of a request for prerogative writs or injunctions. I return to this at [87] below.

The bases relied upon by the applicant for jurisdiction

25    For convenience I will first address some of the statutory provisions referred to in the applicant's submissions.

Original jurisdiction of Federal Court of Australia

26    The Court is created by the Federal Court Act of Australia Act 1976 (Cth) and by s 19 has 'such original jurisdiction as is vested in it by laws made by the [Commonwealth] Parliament'.

27    Under s 39B(1) of the Judiciary Act this Court has original jurisdiction in any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Since the inclusion of s 39B(1A)(c) in the Judiciary Act, the Court has also been vested with jurisdiction in non-criminal matters arising under any Commonwealth statute. This follows from the terms of s 39B(1A), which provide that the original jurisdiction of the Federal Court also includes jurisdiction in any matter arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

28    Jurisdiction can be conferred on the Court by other Acts of Parliament. Acts of Parliament can also limit the scope of the jurisdiction that might otherwise arise under other legislation. Such is the case with s 476A of the Migration Act, which operates to prevent jurisdiction arising under s 39B of the Judiciary Act 'in relation to a migration decision'.

Limits on original jurisdiction under the Migration Act

29    Section 476A provides:

Limited jurisdiction of the Federal Court

(1)    Despite any other law, including section 39B of the Judiciary Act 1903 and section 8 of the Administrative Decisions (Judicial Review) Act 1977, the Federal Court has original jurisdiction in relation to a migration decision if, and only if:

(a)    both:

(i)    the Federal Circuit and Family Court of Australia (Division 2) transfers a proceeding pending in that court in relation to the decision to the Federal Court under section 153 of the Federal Circuit and Family Court of Australia Act 2021; and

(ii)    the Federal Court confirms the transfer under section 32AD of the Federal Court of Australia Act 1976; or

(b)    the decision is a privative clause decision, or a purported privative clause decision, of the Administrative Appeals Tribunal on review under section 500; or

(c)    the decision is a privative clause decision, or purported privative clause decision, made personally by the Minister under section 501, 501A, 501B, 501BA, 501C or 501CA; or

(d)    the Federal Court has jurisdiction in relation to the decision under subsection 44(3) or 45(2) of the Administrative Appeals Tribunal Act 1975.

30    A migration decision is defined in s 5 of the Act, relevantly, as a privative clause decision, a purported privative clause decision, a non-privative clause decision or an Administrative Appeals Tribunal Act 1975 (Cth) migration decision.

31    A privative clause decision is defined in s 474(2), in essence, as a decision of an administrative character that is 'made … under this Act', other than a decision referred to in s 474(4) and (5). Section 474(1) attributes to a privative clause decision under the Migration Act characteristics of finality and protection from further challenge.

32    Section 474(5) is not presently relevant, but s 474(4) of the Migration Act identifies decisions under specified sections of the Act that are not privative clause decisions. Those decisions are defined as non-privative clause decisions.

33    A purported privative clause decision is defined in s 5E as one that would be a privative clause decision if there were not a failure to exercise jurisdiction or an excess of jurisdiction.

34    A decision in these provisions is defined inclusively in s 474(3):

(3)    A reference in this section to a decision includes a reference to the following:

(a)    granting, making, varying, suspending, cancelling, revoking or refusing to make an order or determination;

(b)    granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c)    granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument;

(d)    imposing, or refusing to remove, a condition or restriction;

(e)    making or revoking, or refusing to make or revoke, a declaration, demand or requirement;

(f)    retaining, or refusing to deliver up, an article;

(g)    doing or refusing to do any other act or thing;

(h)    conduct preparatory to the making of a decision, including the taking of evidence or the holding of an inquiry or investigation;

(i)    a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act;

(j)    a failure or refusal to make a decision.

35    In addition to these provisions of the Migration Act, IHMS referred to the potential role of s 273 of the Migration Act (powers relating to detention centres). The applicant also referred to Part 8C of the Migration Act (obligations to report on persons in detention for more than two years). These are addressed further below.

Jurisdiction having regard to the Judiciary Act and other laws

36    The applicant also pointed to a number of statutes and instruments which he says give rise to rights, duties and obligations on the respondents, and that confer jurisdiction on this Court by s 39B(1A)(c) of the Judiciary Act.

37    The applicant referred to s 135AC of the National Health Act 1953 (Cth). That section provides:

Authorisation of Collection of particular health information

(1)    If:

(a)    particular health information is disclosed to an organisation; and

(b)    the disclosure is authorised by or under a health law;

then the collection of the information by the organisation to whom the information is disclosed is taken to be authorised by or under this Act for the purposes of subparagraph 16B(1)(b)(i) of the Privacy Act 1988.

38    During the hearing the applicant claimed that IHMS provided the applicant's private and confidential medical information to a private psychologist without his consent, contrary to the Privacy Act 1988 (Cth). The applicant contended in his written submissions that in that regard, the following sections of the Privacy Act are sufficient to found the relief he pursues:

26WK    Statement about eligible data breach

Scope

(1)    This section applies if an entity is aware that there are reasonable grounds to believe that there has been an eligible data breach of the entity.

Statement

(2)    The entity must:

(a)    both:

(i)    prepare a statement that complies with subsection (3); and

(ii)    give a copy of the statement to the Commissioner; and

(b)    do so as soon as practicable after the entity becomes so aware.

(3)    The statement referred to in subparagraph (2)(a)(i) must set out:

(a)    the identity and contact details of the entity; and

(b)    a description of the eligible data breach that the entity has reasonable grounds to believe has happened; and

(c)    the particular kind or kinds of information concerned; and

(d)    recommendations about the steps that individuals should take in response to the eligible data breach that the entity has reasonable grounds to believe has happened.

(4)    If the entity has reasonable grounds to believe that the access, disclosure or loss that constituted the eligible data breach of the entity is an eligible data breach of one or more other entities, the statement referred to in subparagraph (2)(a)(i) may also set out the identity and contact details of those other entities.

…

58    Obligations of agencies

If this Division applies to a determination and the determination applies in relation to an agency, the agency:

(a)    must not repeat or continue conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(i) or paragraph 52(1A)(a); and

(b)    must take the steps that are specified in a declaration included in the determination under subparagraph 52(1)(b)(ia) or paragraph 52(1A)(b) within the specified period; and

(c)    must perform the act or course of conduct that is covered by a declaration included in the determination under subparagraph 52(1)(b)(ii) or paragraph 52(1A)(c).

39    The applicant referred in his submissions to a 'Health Care Act', and included information on patient rights. The information appears to be a passage from a summary of the Australian Charter of Healthcare Rights, extracted from the Australian Capital Territory Law Handbook. That passage lists seven patient rights that apply Australia-wide under the Charter:

•    Access - a right to healthcare

•    Safety - a right to safe and high-quality care

•    Respect - a right to be shown respect, dignity and consideration

•    Communication - a right to be informed about services, treatment, options and costs in a clear and open way

•    Participation - a right to be included in decisions and choices about care

•    Privacy - a right to privacy and confidentiality of information

•    Comment - a right to comment on care and having concerns addressed

40    The applicant contends that IHMS has failed in relation to all seven patient rights.

41    The applicant also seeks to rely on a passage taken from the explanatory statement to the Health (Patient Privacy) Amendment Act 2015 (ACT), the relevance of which is not explained.

42    The applicant's amended statement of claim and submissions seek to rely on international instruments including the International Covenant on Economic, Social and Culture Rights; the Convention Relating to the Status of Refugees; and the Convention on the Elimination of All Forms of Racial Discrimination, without descending into detail.

Notices of objection to competency

43    Some procedural history is relevant. The question of the Court's jurisdiction was first raised in submissions filed by the first respondent (at that time being the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) on 13 April 2022, and again at a case management hearing before Jackson J on 13 April 2022. A pro bono certificate was issued at that time.

44    His Honour, having brought to the applicant's attention the issue of apparent lack of jurisdiction, made orders that included leave for the applicant to file and serve minutes of any amended originating application and amended statement of claim.

45    The applicant filed proposed amended documents, although outside the period provided for by Jackson J's orders. At a subsequent case management hearing before me, counsel for the respondents took no objection to those documents being filed late, and orders were made to the effect that they be served and stand as the proposed amended originating application and amended statement of claim respectively.

46    Two other matters arose at the case management hearing. First, the applicant included the Commonwealth as the first respondent (rather than the Minister, as previously) in his amended documents. An order was made substituting the Commonwealth as the first respondent. Second, the Commonwealth, through counsel, raised the question of competency and sought leave to file a notice of objection to competency. Counsel for IHMS took no issue with this approach. Orders were made that included, relevantly, that the respondents file any notice of objection to competency within seven days.

47    Both the Commonwealth and IHMS filed notices of objection to competency.

48    IHMS subsequently submitted that the Federal Court Rules do not provide for the provision of a notice of objection to competency in an application brought by a Form 15 originating application (which was how the applicant's application was styled). IHMS submitted that regardless, the Court could deal with the jurisdictional issues that were raised and should proceed to dismiss the application.

49    The Federal Court Rules expressly provide for filing a notice of objection to competency in relation to applications purportedly made under s 11(1) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (r 31.05); applications purportedly to review a 'migration decision' (as defined in s 5 of the Migration Act) (r 31.24); applications purportedly appealing from a decision of the Administrative Appeals Tribunal (r 33.30); and appeals (r 36.72). Nothing in the Federal Court Rules otherwise provides for the provision of a notice of objection to competency. Further, were this application to be treated as a Form 69 Originating Application for relief under section 39B Judiciary Act 1903, the Federal Court Rules do not provide for notices of objection to competency: Marku v Minister for Justice [2015] FCA 831; (2015) 237 FCR 580.

50    Relevantly for applications in relation to a 'migration decision', Division 31.3 of the Federal Court Rules provides the following:

31.22    Application for review of migration decision

(1)    A person who wants to make an application for the review of a migration decision must file an originating application, in accordance with Form 70.

…

31.24    Notice of objection to competency

(1)    A respondent who objects to the competency of an application, must, within 14 days after being served with the application, file a notice of objection to competency:

(a)    in accordance with Form 68; and

(b)    that, briefly but specifically, states the grounds of the objection.

(2)    The applicant carries the burden of establishing the competency of an application.

(3)    A respondent may apply to the Court for the question of competency to be heard and determined before the hearing of the application.

(4)    If a respondent has not filed a notice under subrule (1), and the application is dismissed by the Court as not competent, the respondent is not entitled to any costs of the application.

(5)    If the Court decides that an application is not competent, the application is dismissed.

51    The purpose of a notice of objection to competency is to inform an applicant at an early stage that jurisdiction is in issue, and to potentially put them on notice as to costs: Yao v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 18 at [8] (Perram J). Even if a notice is itself incompetent, the Court of its own motion may dismiss proceedings lacking a reasonable prospect of success under s 31A of the Federal Court Act: Yao at [13].

52    Whether or not a notice of objection to competency is itself competent may have consequences. For example, r 31.24(2) imposes upon an applicant the burden of establishing the competency of an application.

53    It is apparent that the Commonwealth took the view that the applicant, despite having filed a Form 15 originating application, had possibly purported to frame part of his case in substance as a review of a migration decision (which is commenced by filing a Form 70 originating application). So much is apparent from the Commonwealth's written submissions, which refer to r 31.24(2) of the Federal Court Rules and 'the extent [to which] the application is purported to be brought pursuant to the Migration Act'.

54    Although arguable, I prefer the view that the Federal Court Rules do not provide for the filing of a notice of objection to competency in the circumstances of this particular application, and so I will determine it other than under r 31.24(5). However, the issues raised by the notices remain critical to the outcome, regardless.

55    Every Australian court has jurisdiction to determine whether its jurisdiction has been properly invoked: Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1999] FCA 1572; (1999) 94 FCR 384 at [18]; EBT16 v Minister for Home Affairs [2019] HCA 44 at [6]; and Sparke v Hay [2014] NSWCA 318 at [27]. Accordingly, it is open to me to consider the jurisdiction issues and dismiss the application under s 31A of the Federal Court Act, and having regard to r 1.40 of the Federal Court Rules, if I am not satisfied that I have such jurisdiction.

56    From April 2022, including during the time when the applicant had the benefit of pro bono senior counsel, he was on written notice of the challenges to jurisdiction upon which the respondents sought to rely. The issues of jurisdiction were addressed by the applicant and by the respondents in written submission and during the hearing before me. I am satisfied that the applicant was afforded the opportunity to properly consider and address the arguments as to jurisdiction.

Consideration

Preliminary - no concession

57    During the hearing, the applicant contended that the respondents had acknowledged this Court's jurisdiction to determine this matter, by in effect acceding to the applicant's purported substitution of the Commonwealth as the first respondent. The substitution did not have the effect for which the applicant contends. No concession was made by the Commonwealth by its joinder, and in any event, at all times it maintained the position that it denied this Court had jurisdiction to determine the claims made by the amended application.

The purported sources of jurisdiction

58    The main jurisdictional question is whether the effect of s 476A of the Migration Act is that the Court does not have original jurisdiction to entertain the applicant's claim as formulated for the issue of writs of prohibition.

59    The effect of s 476A(1) of the Migration Act is that, despite any other law, the Federal Court has original jurisdiction in relation to a migration decision if, and only if, one or more of the circumstances in paragraphs (a) to (d) apply.

60    Even if, for argument's sake, it is assumed that the applicant's claim is in relation to a migration decision, it is clear that his application does not relate to a proceeding transferred by the Federal Circuit and Family Court of Australia; to a decision of the Administrative Appeals Tribunal on review under s 500 of the Migration Act; to a decision made by the Minister under the prescribed provisions, which relate to the refusal or cancellation of a visa; or to a decision made under s 44(3) or s 45(2) of the Administrative Appeals Tribunal Act.

61    Since s 476A(1) limits the Court's jurisdiction only 'in relation to a migration decision', the meaning of that expression is critical. As set out above, the words 'migration decision' are defined in s 5(1) of the Migration Act to mean: (a) a privative clause decision; (b) a purported privative clause decision; (c) a non-privative clause decision; or (d) an Administrative Appeals Tribunal Act migration decision (as defined in s 474A). Only the first three subsets of 'migration decision' could be of any relevance here.

62    Accordingly, it is necessary, to return to the pleaded case and relief and identify whether the impugned conduct constitutes a migration decision or whether the applicant identifies any other right or duty on the respondents arising from the Migration Act or other legislation. By way of example, see the task undertaken by the Court in Minister for Immigration and Border Protection v ARJ17 [2017] FCAFC 125; (2017) 250 FCR 474 before concluding that this Court retained jurisdiction, despite s 474A, to review a purported non-privative clause decision made in exercise of the power conferred by s 252 of the Migration Act (searches of persons). Similarly, see Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476, where the High Court considered whether s 474(2) of the Migration Act ousted the jurisdiction of that Court to review a decision not to grant a visa under s 65.

63    In the present case, first there is the applicant's complaint about the content and the source of reports made pursuant to Part 8C of the Migration Act. Part 8C of the Migration Act imposes obligations to report on persons in detention for more than two years. For example, the Secretary must give to the Commonwealth Ombudsman a report regarding any person who has been in detention for more than two years (s 486N). The Ombudsman is to give a report to the Minister (s 486O), which the Minister then must cause it to be tabled in Parliament (s 486P). The applicant submitted that the medical and health reports provided to the Ombudsman about him under this Part were prepared by IHMS, and that this is sufficient to empower this Court to grant the relief he seeks.

64    Even if the complaints about his medical treatment and services identified by the applicant could properly be distilled and described as decisions by one of the respondents under one of those provisions, they would be privative clause decisions. The Court would not have jurisdiction to review the decisions unless one of (a) to (d) of s 476A(1) is satisfied - and they are not.

65    Second, it might be argued that although the Migration Act is silent on medical treatment of those in detention, the applicant's complaints relate to decisions made under s 273 of the Migration Act. IHMS raised this possibility in the applicant's favour, but denied that it assisted him.

66    Section 273 provides:

Detention centres

(1)    The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained.

(2)    The regulations may make provision in relation to the operation and regulation of detention centres.

(3)    Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters:

(a)    the conduct and supervision of detainees;

(b)    the powers of persons performing functions in connection with the supervision of detainees.

(4)    In this section:

detention centre means a centre for the detention of persons whose detention is authorised under this Act.

67    The scope of s 273 was considered in ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98; (2018) 257 FCR 1. In that matter, the Secretary of the Department of Home Affairs had adopted a policy that detainees were not to have access to their mobile phones. The policy was reflected in an instruction included in a detention centre manual, and was said to be based on (relevantly) specific search powers under s 252 of the Migration Act. It was submitted by the Secretary that the purported exercise of the power under s 252 was within the general power provided by s 273 of the Act. Although there was dissent as to the extent of powers that could be exercised under s 252 (which is not relevant to this matter), Rares, Flick and Rangiah JJ concurred that there was no legislative authority to support the policy in s 273. Relevantly, Rares J said:

[63]    The respondents contended that the power s 273(1) comprehended all that the regulation making power in s 273(2) and (3) entailed within the word 'maintained'. They argued that the word 'maintained' gave the Governor-General power to require officers to implement a policy of removing mobile phones from all detainees in detention centres.

[64]    That argument must be rejected. The power conferred by s 273(1) enables the Minister, on behalf of the Commonwealth, to cause detention centres to be established and maintained. The power is addressed to the actions of acquiring, leasing or occupying land and buildings, undertaking any necessary building work (in the sense of construction work) and upkeep (in the sense of maintenance) of the physical land and buildings in which persons in immigration detention can be detained, as the definition of 'detention centre' in s 273(4) suggests. In contrast, s 273 (2) and (3) enable the Minister to make regulations about how the detention centres operate and provide for their internal governance, including in respect of regulating the conduct and supervision of detainees.

…

[66]    The general power to make regulations, not inconsistent with the Act, is in s 504(1). It allows regulations to be made that 'are necessary or convenient to be prescribed for carrying out or giving effect to this Act'. That power could be used to make regulations relating to the establishment and maintenance of detention centres under s 273(1). However, the specific power to make regulations created by s 273(2) uses the words 'operation and regulation of detention centres' to convey a meaning different to 'cause detention centres to be established and maintained'. While the word 'maintained' conveys ongoing activity, its natural and ordinary meaning, in the context of a power to establish and maintain a place where persons will be held in detention, is that of upkeep and repair of premises so that they will be suitable for use as a detention centre. The power to make regulations under s 273(2) and (3), in contrast, is expressed in language that conveys what is to occur within the physical structures that the Minister may cause, under s 273(1), to be established and maintained, in effect, in good order and condition so as to be suitable to hold detainees in immigration detention.

68    None of the claims raised by the applicant about the health and medical care provided to him in immigration detention centres can properly be characterised as relating to the maintenance of detention centres in the sense described by Rares J in ARJ17, so as to come within s 273(1). Even acknowledging that Flick J in ARJ17 allowed for a potentially broader ambit of s 273(1), so as to take into account conduct (such as the possession of weapons) that might frustrate the effect of detention (at [105]), the matters of which the applicant complains are not of that nature.

69    As IHMS observed, the power in s 273(2) to make regulations for the operation and regulation of immigration detention centres apparently has not been exercised. Had regulations been made under s 273(2) (or under s 273(1) using the general power to make regulations in s 504), and subject to their scope, the conduct of which the applicant complains may have been capable of being characterised as a decision or decisions made under s 273. However, absent any such regulations, s 273 does not assist the applicant.

70    Further, decisions under or related to s 273 are categorised by s 474(4) as non-privative clause decisions. As such, they fall within the s 5 definition of a migration decision and are captured by the limitation on original jurisdiction conferred by s 476A. Again, the Court would not have jurisdiction to review the decision unless one of (a) to (d) of s 476A(1) is satisfied - and they are not.

71    Nor do the Migration Regulations 1994 (Cth) assist the applicant. Regulation 5.35 provides that the Secretary may authorise medical treatment to be given to a detainee if the Secretary (having received written advice) forms the opinion that the detainee needs medical treatment and the detainee fails to give consent to medical treatment. However, it is not alleged by the applicant that any authorisation has been given under reg 5.35. According to IHMS, none has been given. In any event, decisions under reg 5.35 fall within the list of non-privative clause decision in s 474(4), and so would be 'migration decisions' and subject to the s 476A limit on the jurisdiction of this Court.

72    In my view, for the above reasons the applicant has failed to disclose a cause of action or rights and obligations under the Migration Act on the part of the respondents as to which this Court has original jurisdiction or can grant writs of prohibition as sought.

73    Nor has the applicant disclosed a cause of action or basis for relief against the respondents under the National Health Act. This Act has no apparent application to the applicant's complaints. Reliance on s 135AC does not assist the applicant. Section 135AC provides that disclosure of private information authorised by the Act is an exception to the Privacy Act. There is no power to take action or make a decision in s 135AC that can be prohibited by the relief sought by the applicant. Although the applicant recites it, there is no reference to any power, action or decision under that provision that he wishes to challenge.

74    Similarly, although the applicant recites s 26WK and s 58 of the Privacy Act, there is no analysis of how those provisions are said to be engaged. Section 26WK imposes reporting obligations on an entity where there has been an eligible data breach of the entity, such that a statement is provided to the relevant commissioner. Section 58 is premised on a 'determination', and no determination is identified or its relevance otherwise explained.

75    The Charter to which the applicant referred was developed by the Australian Commission on Safety and Quality of Health Care. Whilst important in summarising the content of rights and duties that might extend to a consumer in a given scenario, the Charter of itself is not legally enforceable in this Court. The Charter is not a statute enforceable by public law remedies.

76    Similarly, the reference to the explanatory statement in the Health (Patient Privacy) Amendment Act 2015 (ACT) does not assist the applicant. Whilst the statement refers to a proposed limitation on freedom of expression 'in order to protect the right of privacy of those seeking to access an approved health facility', the relevance of the extract to any decision or to any claim on the part of the applicant for relief in this Court is not explained, and is not apparent.

77    Finally, it is the High Court rather than this Court that has jurisdiction in relation to matters arising under international treaties to which Australia is a party: Judiciary Act s 38.

78    According to IHMS, the impugned decisions and actions on its part relating to the applicant's health and medical care were made on the basis of the fiduciary duties health practitioners owe to patients under the common law or on the basis of contractual terms as between the Commonwealth and IHMS. This submission by IHMS is consistent with its position that there may be other methods by which the applicant can pursue causes of action against it. However, as IHMS submitted, IHMS's rights and duties in this regard do not arise under federal law, or depend upon federal law for their enforcement: Treasury Wine Estates Vinters Limited v Pearson [2019] FCAFC 21; (2019) 268 FCR 12 at [38].

79    It follows that I am not persuaded that this Court has jurisdiction to grant the relief sought by the applicant relating to health services provided to him, having regard to the manner in which he has brought this claim and the particular relief that he seeks. The applicant has failed to enunciate how any of the relief he seeks or the rights that are alleged to arise invoke the original jurisdiction of this Court or would otherwise empower the issue of writs of prohibition.

Section 39B(1) of the Judiciary Act

80    The above discussion addresses the exclusion of jurisdiction otherwise granted by s 39B of the Judiciary Act by s 476A of the Migration Act. It also addresses jurisdiction potentially under other laws of Parliament under s 39B(1A)(c) of the Judiciary Act and having regard to the scope of the relief claimed by the applicant.

81    It remains to say something further about s 39B(1). The Commonwealth submitted that to enliven the Court's jurisdiction pursuant to s 39B(1) of the Judiciary Act, there must be an officer or officers to whom a writ can be directed, and conduct or a decision that can be the subject of such a writ. Although the applicant's prayers for relief are expressed as seeking a writ of prohibition, neither of the above requirements is apparent in either the amended statement of claim or the applicant's submissions. Whilst I acknowledge the difficulties faced by the applicant as a self-represented litigant, the Commonwealth's submissions are to be accepted. The Commonwealth itself is not an officer of the Commonwealth: Productivity Partners Pty Ltd v Commonwealth of Australia [2018] FCA 1562 at [61]. As a writ under s 39B(1) must be sought against an officer of the Commonwealth, the Court does not have jurisdiction to grant the relief sought. It might be said, for example, that in appropriate circumstances a writ could be issued to officers such as the Secretary, Ombudsman or Minister with respect to their reporting obligations under Part 8C of the Migration Act. Even then, however, it would be necessary to identify decisions or failure to make decisions that can properly be the subject of relief.

82    IHMS submitted that it, too, is not an officer of the Commonwealth for the purpose of s 39B(1). This, it contended, is because it is an independent contractor and does not exercise any statutory or executive authority when providing health services in immigration detention centres. IHMS relied on Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41; (2010) 243 CLR 319 at [51] as authority for the proposition that an independent contractor not exercising statutory or executive authority is not an officer of the Commonwealth. Further, it submitted that 'officer of the Commonwealth' connotes the appointment to a public office (R v Murray; Ex parte Commonwealth (1916) 22 CLR 437) and must relate to an identifiable 'office' (Trimbole v Dugan (1984) 3 FCR 324).

83    The applicant submitted in effect that the respondents have acknowledged that IHMS is the Commonwealth's contractor and so it falls under federal laws and Commonwealth statutes, which means that the Federal Court has jurisdiction regarding the whole dispute referred to in the originated application and statement of claim. During the hearing, the applicant further submitted that IHMS is part of the immigration detention system; in turn IHMS relies upon Commonwealth law; the Commonwealth relies on IHMS; and that IHMS must therefore be considered a 'public officer'.

84    The applicant's broad and generalised submissions do not point to the basis upon which a contract with the Commonwealth would constitute IHMS as an officer of the Commonwealth, or explain which if any statutory obligations have purportedly been carried out by IHMS, or contracted out or delegated by the Commonwealth to IHMS. The mere involvement of IHMS in procuring medical services to those in detention is insufficient to constitute IHMS an officer of the Commonwealth.

85    The High Court in Plaintiff M61/2010E v Commonwealth of Australia at [51] accepted for the purpose of the application before it that certain independent contractors who assessed asylum claims were not Commonwealth officers, and that a claim for (relevantly) prohibition against those persons would not, standing alone, found the original jurisdiction of the High Court. It acknowledged that a question may arise as to whether a party identified as an independent contractor may nevertheless fall within the expression 'an officer of the Commonwealth' in circumstances where some aspect of the exercise of statutory or executive authority of the Commonwealth has been contracted out (see the discussion in Judicial Review of Administrative Action, Aronson, Groves and Weeks, 2022, 7th Ed at [2.160]).

86    In this case, any basis upon which the applicant alleges that IHMS has acted and must be prohibited from acting in the exercise of some statutory or executive authority has not been identified. I have examined the applicant's claims as to alleged statutory obligations and powers above, and as indicated, I am not satisfied that as presently drafted the applicant has identified any relevant conduct or a decision on the part of IHMS or the Commonwealth under those provisions that can be the subject of a writ of prohibition. In my view, the status of IHMS cannot properly be determined in isolation from alleged duties, obligations and powers on its part or that of the Commonwealth that might give rise to the relief by way of prohibition as sought. None have been identified by the applicant. Although I prefer the view on the limited information before me that IHMS is not an officer of the Commonwealth, I accept the Commonwealth's submission that it is not necessary to decide this point for the purpose of this application. It does not affect the outcome. No basis for the issue of a writ has been established. I will also assume, consistently with Plaintiff M61/2010E v Commonwealth of Australia, that there may be circumstances where an independent contractor such as IHMS might fall within the expression 'officer of the Commonwealth'.

Other approaches to relief

87    At [24] above I touched on the potential for the applicant's claims for relief to be considered more generally as a request for prerogative writs or injunctions. Even considered in that manner, I do not consider the applicant's current claims against the respondents can properly be pursued in this Court. For the reasons given, the applicant has not identified a matter that relevantly sounds under a federal law.

Disposition

88    As noted at the outset, there may well be a course open to the applicant to seek relief relating to the provision of medical services to him. But in the end I accept the submissions of the respondents that the course currently embarked upon is not one which permits this Court to grant the relief he seeks.

89    I do not consider the statutory provisions upon which the applicant relies, and absent any claim in tort, confer original jurisdiction on this Court to hear and determine the matters and grant the requested form of relief. Accordingly, I will dismiss the proceedings under s 31A of the Federal Court Act, bringing it to an end, and leaving the applicant in the position where he may need to apply to another court or bring a different type of application if he wishes to pursue his complaints about medical services.

90    It follows that there are no grounds for the grant of interlocutory relief, as anticipated at [18] and [19] above.

91    I will make an order that the applicant pay the respondents' costs of the application to be taxed on a lump sum basis by a registrar of this Court, unless agreed. However, if any party seeks to vary that order, they may write to my chambers within 14 days and I will make further directions as appropriate.

Associate:

Dated:    27 July 2023