FEDERAL COURT OF AUSTRALIA
Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs
[2024] FCA 527
SUMMARY
In accordance with the practice of the Federal Court in some cases of public interest, the following summary has been prepared to accompany the orders made today. This summary is intended to assist in understanding the outcome of this proceeding and is not a complete statement of the conclusions reached by the Court. The only authoritative statement of the Court’s reasons is that contained in the published reasons for judgment which will be available on the internet at the Court’s website together with this summary.
1 The applicant, Mr Yasir Hassan, is a citizen of Somalia. On 18 December 2019, Mr Hassan was brought to Australia from Papua New Guinea (PNG) for treatment of his mental health issues. The applicant was one of a cohort of critically ill individuals transferred from offshore immigration detention to Australia for urgent medical treatment. Those transferees are known colloquially as medevac transferees.
2 The first to fourth respondents are respectively: the Minister for Home Affairs; the Minister for Immigration, Citizenship and Multicultural Affairs; the Commonwealth; and the Secretary of the Department of Home Affairs.
3 On 21 January 2020, the applicant made a request for his removal from immigration detention in Australia to PNG under s 198(1) of the Migration Act 1958 (Cth). That section provides that an “officer must remove as soon as reasonably practicable an unlawful non-citizen who asks the Minister, in writing, to be so removed”. However, the applicant was removed to the United States of America only on 11 August 2021, over 500 days after his initial request. The applicant continues to reside in the United States.
4 In this proceeding, the applicant seeks damages for an alleged breach of a purported duty of care owed to him by the respondents in failing to limit the duration of his detention to that required for the purpose of removal to PNG as soon as reasonably practicable from the time of his written requests of 21 January and 2 June 2020. The question is novel as the duty of care for which the applicant contends has not hitherto been recognised by any Australian court. The applicant also seeks aggravated and exemplary damages. This proceeding was heard as the “lead or test case” for other applicants in similar circumstances.
5 The Court dismissed the application with the question of costs reserved.
6 First, the Court held that no duty of care known to the common law of Australia was alleged. Recognition of a duty to the effect pleaded would create incoherence with the operative provisions of the Migration Act because (among other things) the applicant’s detention could be both lawful under and required by the Migration Act while also in breach of the duty of care. The Court therefore held that the applicant’s claim failed at the threshold stage because no duty of care was owed by any of the respondents to the applicant in the terms alleged.
7 Secondly and in any event, the Court found that, even if a duty of care as alleged was owed at common law by all or some of the respondents, the applicant had not established the factual allegations on the basis of which he contended that the respondents were in breach of their duty of care, save that it was agreed by the parties that no steps were taken to remove him between January 2020 and February 2021. In particular, the Court found that the applicant had not proved his claim that there was no system established by the respondents to administer requests by medevac transferees for their return to regional processing countries. To the contrary, the Court considered that the evidence established, on the balance of probabilities, that a system to administer requests for the return of such persons did exist between 18 December 2019 and 16 February 2021.
8 Thirdly, the Court found that the applicant had not established that the respondents’ conduct caused him to suffer any loss and damage of the kind alleged. Even if the applicant could establish that “but for” the respondents’ conduct the applicant would have been removed from Australia to PNG prior to 20 March 2020, the Court considered that the respondents’ scope of liability would not extend to the harm so caused. This is because the Court found that the PNG border restrictions in response to the COVID-19 pandemic limited the respondents’ capacity to remove the applicant from Australia after 20 March 2020 and were an intervening act which broke the chain of causation.
9 In reaching these conclusions, the Court recognised the personal impact upon the applicant of spending over 500 days in immigration detention at (primarily) the Melbourne Immigration Transit Accommodation, Avon compound. The Court accepted that the applicant had clearly endured a terrible ordeal which it was right to acknowledge. This Court considered that this was all the more appropriate where the applicant had not committed any crime, was brought to Australia only for the temporary purpose of receiving medical treatment, and had mental health issues throughout the duration of his detention.
Justice Perry
20 May 2024
Sydney
