A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship

REASONS FOR JUDGMENT 1 I gave reasons for ruling on 16 December 2011 where, at that time, I made no order in terms of the interlocutory order then sought by the applicant: A Child by his next friend, Sister Brigid (Marie) Arthur v Secretary, Department of Immigration and Citizenship [2011] FCA 1497. Those reasons set out the background to the present interlocutory application. I stood the matter over to today for further consideration. 2 There has been some further evidence filed today, which concerns one of the two matters which in essence were the reasons why I did not, on 16 November 2011, make the interlocutory order then sought. 3 Those two reasons arose from the fact that the applicant had been the subject of an adverse security assessment by ASIO. Firstly, it was not clear to me what effect that may have upon the applicant's medical condition and upon the desirability of him being placed in a different style of immigration detention than that which he was then in. It was not clear to me whether, in the light of his learning that his application for a protection visa was to be refused because he did not satisfy the public interest criterion, he might be at significant risk of self harm by being placed in a style of immigration detention which is less structured and less controlled. 4 Last evening the applicant filed a further affidavit through his solicitor which addressed those concerns. The applicant has not seen the ASIO assessment, but the evidence filed by the applicant indicates that firstly, his removal to a less regulated or less structured form of immigration detention remains desirable in the interests of his mental health, and secondly, that if he were placed in such an environment, the risk of him self harming in the light of having been refused or being about to be refused a protection visa would be no greater, and probably less, than if he were to remain in his current immigration detention environment. 5 The respondents were either not served with that affidavit either late yesterday or this morning, or it did not come to their attention, even if it were served. It matters not for the purposes of this ruling. It is plain that the respondents did not know the contents of that material until the hearing this morning. The matter was therefore stood over to 3 pm today to give them a further opportunity to consider it. I will refer further to that circumstance shortly. 6 The other reason why I declined an order on 16 March 2011, albeit a subsidiary reason, was that I did not know whether there was a significant public interest in maintaining the applicant in the current style of immigration detention in the light of the contents of the ASIO assessment about him. Its contents were not then known. There is still no evidence about that. The respondents have not produced any information as to the content of that report by ASIO. That is because, I am told, none of the respondents has yet had access to it. That is surprising, as its contents would presumably inform the nature of appropriate immigration detention. I accept that submission. It is important to the way in which I deal with this application today. But for that submission, I would be likely to have inferred that the fact that the report was not described at all as relevant to the form of his immigration detention meant that the form of immigration detention the applicant sought was consistent with the public interest. 7 It has been pointed out, however, that whilst the applicant, unlike some of his contemporaries, remained in immigration detention rather than being the subject of a residential determination because he was still awaiting an ASIO assessment, he was given certain liberties to go on expeditions or outings away from the place of immigration detention, largely unsupervised, other than by a friend. I would be inclined to conclude simply from that past history that the public interest in keeping him in the present form of immigration detention, as distinct from some other form of immigration detention, is not of significant moment in determining this application. I would not draw that inference simply from the lack of being told anything about the current assessment for the reason that I have just given, namely, that none of the respondents, despite their efforts, have yet received a copy of that assessment, and so they cannot tell the court about that aspect further. 8 I am also told that the information in the affidavit, at least filed last evening is contested by the respondents. I appreciate that they have had very little time to address it. But on the other hand, the respondents have had time since the ruling on 16 December 2011 to consider alternative forms of immigration detention, and they have not produced any material to indicate the outcome of those considerations before the hearing today, including and in particular the option of Hotham Mission, a proposal put forward on behalf of the applicant. It was acknowledged that Hotham Mission is a place of immigration detention and was considered by the respondents for the purpose of placing the applicant there, or in some similar environment. 9 There is no evidence to show why (as is now asserted by counsel on their behalf) it is not suitable. I have mentioned the more recent psychiatric evidence which is also exhibited to that affidavit. The respondents have not had the opportunity to consider how it should be responded to. They had arranged an urgent, psychiatric assessment of the applicant for a day or two ago, but that examination did not take place. There is a further examination of the applicant by a psychiatrist nominated by the respondents tomorrow, that is, 23 December 2011. At the minute, all of the psychiatric evidence and, indeed, all of the medical evidence, indicates that it is in the applicant's interests to be placed in a less restrictive style of immigration detention and that his placement in restrictive detention has exacerbated his condition. The report of the Medical Director of the International Health and Medical Services (IHMS) of 21 December 2011 confirms that IHMS itself had recommended the applicant's placement in a less restrictive setting. As I commented in the reasons of 16 December 2011, despite that recommendation and the views of Professor Jureidini and the views of Dr Assadi of 17 August 2011, that opinion had not led to the applicant being placed in some less restrictive setting. That has not been explained by the respondents. 10 The medical evidence is, with a varying degree of emphasis, that the applicant is at risk psychologically whilst he remains in his present, apparently more restrictive, setting. As I indicated in the previous reasons, in my view, the respondents, or one of them (and I have been told on behalf of the respondents that the Commonwealth is the appropriate entity) is responsible for the form of immigration detention of the applicant. I was satisfied that there was a serious question to be tried that, up to the present time, the duty of care which the Commonwealth thereby owed to the applicant because of his status in immigration detention was arguably being breached. 11 Today's submissions have not focused further upon those findings. They have focused upon what is appropriate in the light of those circumstances. I propose to make an order in somewhat different terms to those which the applicant seeks, which are set out in [7] of the previous reasons and, in particular, referring to the Hotham Mission option, at [27]. 12 In my view, it is appropriate in the present circumstances to make some order to give effect to the findings I have made to date. In doing so, I am mindful of the very limited time that the respondents have had to address the particular information about the Hotham Mission, which is contained in the affidavit which they saw for the first time this morning and Professor Jureidini's particular views although, as I say, they are consistent with those of Dr Young, the Medical Director of IHMS. 13 I am mindful of the request by senior counsel for the respondents to refer the matter to mediation. I am mindful of the unavailability of the ASIO report so that it is, to a degree, speculative about the extent to which the public interest is a countervailing factor in making any order. I am also mindful, as I said to counsel for the applicant this morning, that the more recent reports of Professor Jureidini contained in his letter of 20 December 2011 and in his email of 21 December 2001, whilst addressing the issues to which I have referred, do not convey, to my mind, precisely the same degree of urgency in the interests of the applicant's mental health as previously, about the need for him to be placed in some other more congenial form of immigration detention. 14 In the light of those considerations, the orders which I propose to make today are as follows: