AKU21 v Minister for Home Affairs

THE FIRST APPLICANTS' CLAIMS 26 AKU21 commenced these proceedings by the filing of an originating application on 17 February 2021. The originating application sought the following relief: (1) injunctions directed to the respondents to "cease breaching the duty of care to the applicants"; (2) in the alternative, writs of mandamus to order the first respondent to consider the exercise of his power under s 198B of the Migration Act to bring the applicants to Australia; and (3) interlocutory relief that AKW21 be appointed as the litigation guardian for AKV21. 27 The interlocutory relief sought in the originating application does not need to be further mentioned. AKU21 was ultimately appointed litigation guardian of AKV21. 28 A statement of claim was filed on 7 July 2021. The statement of claim is prolix and, in various respects, unclear. As mentioned, parts of it were abandoned at the hearing. The statement of claim, as originally expressed, probably contains the following broad core allegations: (1) the Commonwealth respondents owed a duty of care in negligence to AKU21 during the period of his initial detention in Papua New Guinea from 2013 to 2016; (2) the Commonwealth respondents owed a duty of care to the applicants, at the time of AKU21's removal to Bangladesh, to ensure that AKU21 was not removed without the best interests of AKV21 being taken into account; (3) the Commonwealth respondents detained and unlawfully imprisoned AKU21 "in the course of deportation" to Bangladesh; (4) the Commonwealth respondents detained AKU21 after his re-entry into Papua New Guinea and subsequent arrest; (5) the Commonwealth respondents owe a continuing duty of care to the applicants and are in breach of that duty; (6) the duty referred to in (5) above requires the Commonwealth respondents to: (a) bring the applicants to Australia; and (b) consider granting a visa to AKV21. 29 A duty of care was pleaded in paragraph 12(qq) of the statement of claim in the following way: The Commonwealth and Minister owe a duty to take reasonable care to avoid foreseeable harm to the applicants or separation of their family: and to exercise due care and skill in providing assistance to the Government of Papua New Guinea. 30 This duty was pleaded to arise out of the status of the applicants as "transitory persons" as defined in s 5 of the Migration Act. 31 The breach of the duty was said to lie in the Commonwealth respondents failing to consider the best interests of AKV21, including the protection of the family unit. The applicants' case was that AKU21 and AKV21 both continue to be "transitory persons", even after AKU21 was deported from PNG and re-entered PNG illegally. 32 A duty of care was also pleaded in paragraph 15 of the statement of claim, in the following way: The Respondents owed at all material times, and continue to owe, a duty of care to the first and second applicants as transitory persons, or otherwise as a person transferred from Australia to PNG and his child born in PNG, to: i. Not take any action, or provide assistance to the PNG in taking action, by which the family was separated, without consideration of the best interests of the child including protection of family unity. ii. To take necessary action to protect the best interests of the child including through the protection of the unity of the family. iii. To take necessary and available administrative steps to obtain the release of the first applicant from prison. iv. To take necessary and available administrative steps to reunite the family. v. To take administrative steps to obtain the agreement of PNG to bring the first and second applicants to Australia, and if the second respondent is willing, also the second respondent. vi As a person who was deported from PNG to Bangladesh with the assistance of the Respondents, without consideration of the best interests of the child. 33 A duty of care was pleaded in paragraph 29 of the statement of claim, in the following way: From approximately September 2013 - ie when the first applicant was transferred from Christmas Island to PNG - the respondents owed the applicants a duty to take reasonable care: a. To protect the applicant and his family should he form a family in PNG, from unreasonable risks of harm, including psychological and physical harm, following his removal from Christmas Island and his relocation to PNG; b. To take administrative measures to ensure that the rights of the child were considered in any decisions affecting the first and second applicants. c. To take such measures as were within the power of the Respondents and within the terms of the MOU or Administrative Arrangements, including the need for special arrangements for minors, to protect the family unity and the best interests of the child. d. At all relevant times the Respondents knew or alternatively ought to have known that the applicant had formed a family and had a child who was a transitory person within the meaning of the Migration Act 1958; and that a failure to act with reasonable care would place the applicants at risk of suffering physical, and emotional harm and psychiatric injury through enforced separation of the family. 34 As mentioned various paragraphs of the statement of claim were expressly abandoned at the hearing on 1 July 2022. These were as follows. First, paragraphs 24 and 28 were abandoned. Paragraph 24 was apparently included by accident. It does not need to be set out. Paragraph [28] was as follows: The first applicant has been harmed by the actions and failures of the Commonwealth parties since the first applicants detention in Australia in 2013, including through being subjected to arbitrary detention, effective detention or restraint on liberty, and cumulative periods of imprisonment without charge, since 2013, amounting to approximately 7 years. 35 Secondly, under the heading "relief sought", sub paragraphs 2 and 3 were deleted, such that the relief sought was as follows: 1. Mandatory injunctions directed to the Respondents to cease breaching the duty of care to the applicants 2. Mandatory Injunctions requiring the Respondents to bring the applicants to Australia 3. Mandatory Injunctions requiring the Respondents to consider granting a visa to the second respondent. 4. By reason of the failure of the Respondent to consider the best interests of the child, the applicants have suffered loss and damage. 36 Thirdly, under the heading "particulars" (being the particulars of loss and damage), paragraph 7 was amended such that it only sought damages after 26 April 2016. So amended, the particulars of loss and damage were: 5. The loss and damage is the deprivation and interference with the family unity of the applicants and second respondent and physical and mental harm arising as a result. 6. Deprivation of liberty of the first applicant brought about by the unlawful imprisonment, and physical and mental harm arising as a result. 7. Damages for harm and arbitrary imprisonment caused or contributed by the actions of the Respondent, including, (1) detention caused by the breach of duty of care, prior to deportation, from 27 April 2016, (2) detention and unlawful imprisonment in the course of deportation on 17th March 2018, (3) detention after the first applicant's arrest after his March 2019 return from Bangladesh to PNG. 37 As mentioned, the applicants' case was also modified during oral submissions on 1 July 2022. 38 First, the case narrowed by it being made clear that AKU21 was not alleging that he was unlawfully detained by the Commonwealth respondents at any point during AKU21's deportation. Rather, the intended allegation was simply that the Commonwealth respondents were, as a matter of fact, involved in the deportation of AKU21 in 2018. 39 Secondly, as put in oral argument at the hearing on 1 July 2022, and in apparent modification of the whole of the applicants' case, the applicants' claim was that the Commonwealth respondents had a duty to inform the relevant authorities in Papua New Guinea, before AKU21's removal from Papua New Guinea in 2018, that AKU21 had a wife and a child. The asserted duty to inform the PNG authorities was said to arise out of the requirement to consider the best interests of the child, namely AKV21. It was at least implicit in the applicants' oral submissions that it was asserted that, in deporting AKU21, the PNG authorities did not know about the applicant's wife and child. 40 The alleged breach of this duty was said to occur at some time from February 2018 to 16 April 2018 when the Commonwealth respondents were aware of the planned operation to remove AKU21 from Papua New Guinea, but failed to inform the Papua New Guinea authorities that AKU21 had a wife and child in Papua New Guinea. 41 In order to understand and determine these claims and the question of whether a mandatory injunction should be granted in the terms sought more recently, it is necessary to refer to the arrangements between the governments of Australia and Papua New Guinea in relation to the regional processing regime on Manus Island.

The regional processing regime in the Migration Act 42 Division 8 of the Migration Act is entitled "Removal of unlawful non-citizens etc". Subdivision B is entitled "Regional Processing". Section 198AA of the Act sets out the reason for subdiv B as follows: 198AA Reason for Subdivision This Subdivision is enacted because the Parliament considers that: (a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and (b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and (c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and (d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country. 43 Under Div 8 subdiv B, the Minister may designate a country as a "regional processing country": s 198AB. This is a country to which "unauthorised maritime arrivals" are to be taken: s 198AD. On 9 October 2012, the then Minister for Immigration and Citizenship made a designation that the Independent State of Papua New Guinea was a "regional processing country" under s 198AB(1) of the Migration Act. 44 Unless the Minister exercises the power conferred by s 198AE to disapply s 198AD, s 198AD(2) requires that unauthorised maritime arrivals detained under s 189 of the Migration Act must be taken to a regional processing country. Broadly speaking, an unauthorised maritime arrival is a person who entered Australia by sea without a valid visa: see s 5AA(1). It was common ground that AKU21 was an unauthorised maritime arrival. It was also not in dispute that AKU21 became a "transitory person" within the meaning of s 5.

Arrangements between Australia and PNG in relation to regional processing 45 On 19 July 2013, the Prime Ministers of Australia and Papua New Guinea signed a document entitled "Regional Resettlement Arrangement between Australia and Papua New Guinea on Further Bilateral Cooperation to Combat People Smuggling". 46 The Regional Resettlement Arrangement set out the basic arrangements for the transfer of persons to Papua New Guinea from Australia for refugee status determination. 47 Under the Regional Resettlement Agreement, Papua New Guinea agreed to receive unauthorised maritime arrivals who had been preliminarily assessed for health and security concerns in Australia for processing and determination by PNG of their refugee status. If those persons were found to be refugees, Papua New Guinea agreed to resettle those individuals: 3. Commencing on the day of announcement, any unauthorized maritime arrival entering Australian waters will be liable for transfer to Papua New Guinea (in the first instance, Manus Island) for processing and resettlement in Papua New Guinea and in any other participating regional, including Pacific Island, states. Papua New Guinea undertakes for an initial twelve month period to accept unauthorised maritime arrivals for processing and, if successful in their application for refugee status, resettlement. This program will be for 12 months and will be subject to review on an annual basis through the Australia-Papua New Guinea Ministerial Forum… 4. In the case of Papua New Guinea, unauthorised maritime arrivals would be transferred to Papua New Guinea following a short health, security and identity check in Australia. Transferees would be accommodated in regional processing centres. Papua New Guinea will undertake refugee status determination. The regional processing centre will be managed and administered by Papua New Guinea under Papua New Guinea law, with support from Australia. 5. What is unique about this Arrangement is that persons found to be refugees will be resettled in Papua New Guinea and any other participating regional, including Pacific Island, state. Persons found not to be refugees may be held in detention or returned to their home country or a country where they had right of residence… 7. Australia and Papua New Guinea take seriously their obligations for the welfare and safety of any persons transferred to Papua New Guinea under this Arrangement… 48 Under the Regional Resettlement Agreement, Australia agreed to provide support to refugees resettled in Papua New Guinea or other countries and to bear the full cost of implementing the agreement in PNG: 8. Australia will provide support, through a service provider, to any refugees who are resettled in Papua New Guinea or in any other participating regional, including Pacific Island, state. Australia will also assist Papua New Guinea in effecting the transfer of those transferees who seek return to their home country or country where they have right of residence. 9. Australia will bear the full cost of implementing the Arrangement in Papua New Guinea for the life of the Arrangement. If this requires additional development of infrastructure or services, it is envisaged that there will be a broader benefit for communities in which transferees are initially placed. 49 On 6 August 2013 the Australian and Papua New Guinean governments entered into a "Memorandum of Understanding between the Independent State of Papua New Guinea and the Government of Australia, relating to the Transfer to and Assessment of Persons in Papua New Guinea" (MOU). Paragraph 2 of the MOU states that the MOU is intended to "support" the operation of the Regional Resettlement Agreement. 50 The objectives of the MOU included: 1. The Participants have determined that combating People Smuggling and Irregular Migration in the Asia-Pacific region is a shared objective. Transfer arrangements and the establishment of Processing Centres are a visible deterrent to people smugglers. 2. This MOU will enable joint cooperation, including the development of enhanced capacity in Papua New Guinea, to address these issues. 3. The Participants understand the importance of regional cooperation and have determined to continue discussions as to how these transfer, assessment and settlement arrangements might over time be broadened under the regional cooperation framework. 51 Under the heading "Guiding Principles", the MOU stated that Australia agreed to bear all costs incurred under the MOU. 52 Under the heading "Operation of this MOU", the MOU stated: 8. Australia may Transfer and Papua New Guinea will accept Transferees from Australia under this MOU. 9. Administrative measures giving effect to this MOU will be settled between the Participants. Any further specific arrangements may be made, as jointly determined to be necessary by the Participants, on more particular aspects of this MOU for the purpose of giving effect to its objectives. Persons to be transferred to Papua New Guinea for processing 10. Persons to be transferred to Papua New Guinea are those persons who: a. have travelled irregularly by sea to Australia; or b. have been intercepted at sea by the Australian authorities in the course of trying to reach Australia by irregular means; and c. are authorised by Australian law to be transferred to Papua New Guinea; and d. have undergone a short health, security and identity check in Australia. The sites 11. Papua New Guinea will host a Processing Centre or Processing Centres in Manus Province and may host other Processing Centres in Papua New Guinea for the purposes of this MOU. 12. Papua New Guinea may also host Transferees under other arrangements, such as community based arrangements, at various locations in Papua New Guinea. 14. The Government of Papua New Guinea undertakes to enable Transferees, including those who it determines are refugees, to be lawful during their stay in Papua New Guinea. Persons to be settled in Papua New Guinea 13. The Government of Papua New Guinea undertakes to enable Transferees who enter Papua New Guinea under this MOU who it determines are refugees to settle in Papua New Guinea. Status of Transferees in Papua New Guinea 14. The Government of Papua New Guinea undertakes to enable Transferees, including those who it determines are refugees, to be lawful during their stay in Papua New Guinea. 15. The Government of Papua New Guinea will treat all Transferees who it permits to settle in accordance with the Refugees Convention. 53 Under the heading "Commitments", the MOU stated: 17. The Participants will treat Transferees with dignity and respect and in accordance with relevant human rights standards. 18. Special arrangements will be developed and agreed to by the Participants for vulnerable cases, including unaccompanied minors. 19. Consistent with the Participants' objective of combating People Smuggling and Irregular Migration, and noting the establishment of a Processing Centre, Australia will support the Government of Papua New Guinea in its management of nationals from third countries who are illegally entering Papua New Guinea. Such support could consist of the provision of appropriate technical and financial assistance, as well as advice, as jointly determined between the Participants. 20. The Government of Papua New Guinea assures the Government of Australia that it will: a. not expel or return a Transferee to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and b. make an assessment, or permit an assessment to be made, of whether or not a Transferee is covered by the definition of refugee in Article lA of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees; and c. not send a Transferee to another country where there is a real risk that the Transferee will be subjected to torture, cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the imposition of the death penalty. 54 Under the heading "Co-operation", the MOU stated, among other things: 22. Communications concerning the day-to-day operation of activities undertaken in accordance with this MOU will be between the Office of the Chief Migration Officer of Papua New Guinea (who is also the Administrator of the Manus Regional Processing Centre) and the Australian Department of Immigration and Citizenship. 23. The Participants will establish a Joint Committee with responsibility for the oversight of practical arrangements required to implement this MOU. The Joint Committee will meet regularly and will be co-chaired by mutually agreed representatives of the Australian Department of Immigration and Citizenship and the PNG Immigration and Citizenship Service Authority. Participation in the Joint Committee will be as agreed but may include relevant non-government organizations and service providers where appropriate. 55 At the hearing on 1 July 2022, the Commonwealth respondents relied on affidavit evidence of Ms Imrana Noormahomed, a supervisor with the Department of Home Affairs who between 18 February 2018 and 18 August 2018 worked as a Return and Removals Advisor to the Deputy Chief of Removal Operations of the Papua New Guinea ICA. 56 In an affidavit sworn on 27 June 2022, Ms Noormahomed set out her understanding of the Australian government's involvement in assisting the Papua New Guinean government to remove from Papua New Guinea to other countries persons found not to be refugees. Ms Noormahomed's evidence included: 3. Between 18 February 2018 and 18 August 2018 I worked as the Return and Removals Advisor to the Deputy Chief of Removal Operations of the Papua New Guinea (PNG) Immigration and Citizenship Service Authority (PNG ICA) (my role). 4. At the time I commenced my role, PNG was working to progress the removal of a number of transferees who were asylum seekers who had been taken to PNG for the purposes of regional processing under the Migration Act 1958 (Cth), had been assessed by the government of PNG to not be owed protection in respect of their country of origin and therefore had been assessed to not be refugees, and were as such on a pathway to be removed from PNG to their countries of origin. 5. Regional processing arrangements, including removal of those transferees assessed to not be refugees, were funded by the Department. However, in my experience, the decision as to who would be removed was taken by PNG, and in particular by officers within the PNG ICA. 6. In the context of these arrangements, my role was to provide guidance and advice as needed and to support the removals team within the PNG ICA to build their capacity for conducting the removals of these transferees. In my role I had a counterpart who worked for PNG ICA (my PNG counterpart). I worked closely with my PNG counterpart - this was referred to as 'twinning'. Both me and my PNG counterpart reported to the same senior officer within the PNG ICA. 7. While I worked in this role I remained employed by the Department. My salary was paid by the Department. However, for the purposes of my day to day work I was entirely embedded within the PNG ICA. I worked directly in the PNG ICA offices and used their systems including email to conduct my work. Since I left the role on 18 August 2018 I no longer have access to those emails or other files on their systems. 8. PNG ICA selected the transferees who were to be removed and decisions about who was to be removed were entirely a matter for the PNG government. 9. PNG ICA had a clearance process by which a number of checks would be conducted before a transferee was to be removed. That included considering obligations under international treaties and confirming that the person was not owed protection in respect of their country of origin. My PNG counterpart was responsible for this clearance process and ensuring these checks were undertaken. I saw records relating to these clearance processes during my time in my role, but I cannot access these records now for the reason explained in paragraph 7 above. I was not involved in undertaking any of the checks or deciding who was to be removed from PNG. To the best of my knowledge no Commonwealth officer was involved in those processes. 10. It was my responsibility to arrange the travel for these removals. PNG ICA would advise me of the planned removal, including the details of any escorts (see below) and I would arrange travel tickets through the Department for the returnee and the escorts. 57 Ms Noormahomed's affidavit also included evidence to the effect that the Department of Home Affairs held a contract with a company known as "C5" to assist in building the ICA's capacity to remove persons from Papua New Guinea. Removal operations would generally involve several officers of the ICA and C5 contractors, and did not to her knowledge involve Commonwealth officers or other contractors.

General principles as to novel duty of care 58 The authorities concerning novel duties of care were addressed by Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 at [201] - [229]. Bromberg J referred to the decision of Allsop P in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; 75 NSWLR 649 at [102] - [104]. After referring to various authorities, Allsop P articulated a "salient features" approach to determining whether a novel duty of care exists, saying: [102] This rejection of any particular formula or methodology or test the application of which will yield an answer to the question whether there exists in any given circumstance a duty of care, and if so, its scope or content, has been accompanied by the identification of an approach to be used to assist in drawing the conclusion whether in novel circumstances the law imputes a duty and, if so, in identifying its scope or content. If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. [103] These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law. [104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content. 59 Given the context of the present case, it is relevant to emphasise that account needs to be taken of the fact that any alleged duty of care in negligence arises in the context of an existing statutory scheme regulating migration. Where it is contended that a duty of care arises in the context of a legislative scheme, a court will "need to determine the applicants' common law negligence claims consistently with, and against the background of, [the legislative] provisions": FRM17 v Minister for Home Affairs (2019) 271 FCR 254 at [212] (the Court). Even though the duty is sourced in the common law, the statutory provisions provide "the setting in which [an authority's] acts and omissions have to be considered": Council of the Shire of Sutherland v Heyman (1985) 157 CLR 424 at [434] (Gibbs CJ). 60 The common law has "long been cautious in imposing affirmative common law duties of care on statutory authorities": Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59; 200 CLR 1 at [79] (McHugh J) (emphasis in original). Where the respondent is a repository of statutory power or discretion, the multi factorial approach still applies, but particular factors assume special importance. These include, relevantly, that public bodies are "entrusted by statute with functions to be performed in the public interest or for public purposes": Heyman at [456] (Mason J). "Performing their functions with limited budgetary resources often requires the making of difficult policy choices and discretionary judgments", which negligence is often an inapposite vehicle for examining: Crimmins at [79]. Having said that, it is the particular nature, powers and functions of the statutory authority on whom the duty is said to lie that is important, as opposed to simply the fact that the entity is a statutory authority. 61 It is also relevant to note that reasonable foreseeability is a necessary, but not sufficient, condition for the imposition of a duty. "In the case of a governmental authority, it may be a very large step from foreseeability of harm to the imposition of a legal duty": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 at [9] (Gleeson CJ). 62 In determining whether the repository of a statutory power owes a common law duty of care, it is necessary to ask whether the statutory "regime erects or facilitates a relationship between the authority and a class of persons that, in all the circumstances, displays sufficient characteristics answering the criteria for intervention by the tort of negligence": Graham Barclay Oysters at [146] (Gummow and Hayne JJ). 63 The applicants did not make submissions by direct reference to each of the "salient features" identified by Allsop P in Stavar. Nevertheless, it was submitted that the Australian government had a degree of control over, or had or assumed responsibility for, the process of removing AKU21 from Papua New Guinea. 64 In addition, particular reliance was placed on the initial status of AKU21 as a "transitory person" and the consequent fact that AKV21 when born was a "transitory person". The parties were at issue as to whether each of them remained a "transitory person" after Papua New Guinea had determined that it did not owe protection obligations to AKU21 or after he was deported in 2018.

Application 65 As ultimately put in oral argument on 1 July 2022, the duty was identified as a duty on the part of the Commonwealth respondents to inform the relevant authorities in Papua New Guinea, before AKU21's removal on 16 April 2018, that AKU21 had a wife and child. In this regard, the applicants' case was run on an assumed basis that the PNG authorities were unaware that AKU21 had married and had a child. This modified case only clearly arose during oral argument. The Commonwealth respondents properly did not object to this modified case being raised provided that they could adduce further evidence from Ms Noormahomed confined to the question about whether relevant PNG authorities already knew that AKU21 had a wife and child at the time he was deported. The applicants did not object to this course being taken. 66 The Commonwealth respondents were granted leave to re-open and Ms Noormahomed was called to give oral evidence. She was also cross-examined. Her evidence was that AKU21 was initially part of a cohort of transferees of Bangladeshi origin who had been found not to be owed protection obligations by Papua New Guinea. She gave evidence that the reason why AKU21's removal occurred separately from the broader cohort of Bangladeshi refugees was because "there was a lot of deliberation because the PNG authorities were aware [of the] applicant's situation in terms of [his] family and his local wife". Ms Noormahomed's evidence was that the acting Deputy Chief and Chief Migration Officers of Papua New Guinea, and her counterpart or "twinner", were involved in those deliberations. 67 Ms Noormahomed's evidence included that AKU21's case was discussed "at a very high level" by the PNG authorities. In context, what she meant by this was that AKU21's case was considered by senior officers within the relevant PNG authority. 68 Ms Noormahomed stated that she was privy to some of the deliberation involved, but could not recall the content of any specific conversations concerning AKU21's removal. 69 Ms Noormahomed also gave evidence that the AKU21 was required to be removed to "regularise" his status in Papua New Guinea as he was no longer lawfully residing in the country. In other words, he had to be removed in order (potentially) to return in a lawful manner. 70 A document entitled "Involuntary Removal" dated 12 April 2018, which was issued by Mr Solomon Kantha, the Chief Migration Officer of the Papua New Guinea ICA stated that AKU21 would be transferred from Manus Island to Bomana Correctional Facility in Port Moresby by officers of the ICA on 12 April 2018. The document set out the logistical arrangements and risk assessment of the proposed removal. Mr Taylor placed particular reliance on the following paragraphs of the document under the heading "Intelligence Summary" (applicants' emphasis added): A detailed case history is UNKNOWN for the PIC [Person In Custody]. Individual risk rating for [AKU21], as determined from historical case history and time spent within the Manus Island Regional Processing Centre (MIRPC) prior to 1 Nov 2017 ranked at 1 /Low. This assessment was derived as a result of nil recording of trigger incidents attached to GDD063 during his time within the facility. However, little is known about [AKU21] and the involuntary removal (Manus to Port Moresby) suggests the Escort Party to class him as High Risk and employ all necessary protocols to ensure his safe removal. On ???, a medical officer attached with IHMS confirmed and determined [AKU21] to be medically 'Fit to Travel'. 71 The context of this document is risk assessment, not an assessment of AKU21's personal circumstances. I do not take from it that little was known about AKU21's personal circumstances. I found Ms Noormahomed's evidence to be reliable and consistent with the contemporaneous documents. Apart from the inference they sought to draw from the document just referred to, the applicants did not adduce evidence from which I would infer that the PNG authorities were not aware of AKU21's family circumstances. 72 The applicants did not adduce evidence from which I would infer that the relevant PNG authorities which made the decision to deport AKU21 in 2018 or those that implemented that decision were unaware that AKU21 had a wife and child or that the relevant officers failed to take those matters into account. 73 I note also that the Commonwealth respondents correctly observed that the Papua New Guinea authorities were aware of AKU21's marriage and of his child as evidenced by the marriage certificate and AKV21's birth certificate. 74 I conclude that the Papua New Guinea authorities were aware of the existence of AKU21's wife and child. It was because the PNG authorities were considering AKU21's family situation that he was not deported in 2018 until after the initial cohort referred to earlier. There was no evidence that the PNG government did not consider the best interests of AKV21 or, more generally, the interests of the AKU21, AKW21 and AKV21 as a family or family unit. Given that AKU21's specific family circumstances were discussed by senior officers within the relevant PNG authorities, and in light of the fact that AKU21's deportation was apparently delayed to give his family situation more consideration, it is likely that these matters were considered. 75 I will address various submissions which were made by the applicants during argument on 1 July 2022. 76 First, the applicants submitted that the Commonwealth respondents assumed responsibility for the operation of the removals process under the regional processing regime and the day to day operation of the MOU. This was alleged to be evidenced by the terms of the MOU, the fact that the Commonwealth agreed to pay for the regional processing regime, and the operational support provided by the Commonwealth to the government of Papua New Guinea in relation to regional processing. 77 The applicant is correct that Australia agreed to bear the costs of implementing the Regional Resettlement Arrangement and MOU in Papua New Guinea. I proceed on the basis that Australia in fact bore the costs of the Regional Resettlement Arrangement and MOU in PNG. I do not conclude from this that the Australian government assumed responsibility for AKU21, or for the process of his removal from PNG, or that the Australian government had control over the process. The applicants did not establish any relevant link between Australia's funding of the regional processing regime and a power to control or influence the decisions made concerning transferees or "transitory persons" on Manus Island, or an assumption of responsibility in that respect. 78 Ms Noormahomed's evidence, which was broadly consistent with what would be expected from the terms of the Regional Resettlement Agreement and the MOU, was to the effect that PNG had and retained operational control over the regional processing arrangements on Manus Island, including the refugee status assessment process. The Australian government funded the arrangements and provided support and guidance, presumably when requested and where required. Paragraph 4 of the Regional Resettlement Agreement stated that the Manus facility would "be managed and administered by Papua New Guinea under Papua New Guinea law, with support from Australia". The Regional Resettlement Agreement and MOU both stated that Papua New Guinea is responsible for the refugee status assessment process. 79 Ms Noormahomed's evidence was that the Australian government's role was "capacity-building" and that "Australia didn't have an involvement in any PNG removal process or decision". Her evidence was that the decision to remove failed asylum seekers from Papua New Guinea was "entirely a matter for the PNG government". 80 I do not conclude from the terms of the Regional Processing Agreement or the MOU or the evidence given, that the Australian government took responsibility for refugee status decisions made in relation to transferees or for removal from PNG where such a decision was made by the relevant PNG authorities. The evidence indicates that the Australian government assisted with operations once those decisions were in fact already made by the relevant authorities in Papua New Guinea. 81 Secondly, and at a more specific level, the applicants submitted that the Commonwealth respondents were "intimately involved" in the decision to remove AKU21 from Papua New Guinea, as evidenced by the meeting of Commonwealth and Papua New Guinean authorities in Brisbane in early 2018 and the involvement of a C5 contractor in the process of removing AKU21 from Papua New Guinea. 82 The applicants relied in particular on a letter dated 9 February 2018, from Mr Dino Mas (the Acting Deputy Chief Migration Officer of Papua New Guinea) to Ms Sharon Edgerton (a Commander in the Support Group at the Department of Home Affairs). In that letter, Mr Mas stated: I write on behalf of Acting Chief Migration Officer, Mr Solomon Kantha, to request the assistance for one qualified C5 personnel to assist with the removal operations for the Bangladeshi cohort scheduled for March 2018. They comprise of a total of 22 non-refugees. Immigration and Citizenship Authority are in the midst of planning and executing other operations this month but which are still connected to the Regional Resettlement Agreement. Given staffing constraints during this month due to the above-mentioned operations, it would be ideal if C5 could be endorsed to assist with requiring assistance by next week to assist with the March 2018 removal planning for the Bangladeshi cohort. Their removal is critical as well as pivotal in strategies being mooted to significantly reduce the caseload in Manus as agreed to during the recent RRA discussions held last month in Brisbane with ABF / Home Affairs senior officials. 83 The letter evidences a discussion concerning strategies to reduce the caseload on Manus Island. The letter does not suggest that the meeting in Brisbane was to discuss the particular circumstances of AKU21's removal from PNG. 84 On 13 February 2018, Ms Edgerton sent an email to Mr Nasser Tamei, the counterpart or "twinner" of Ms Noormahomed in the PNG ICA. The email included: I have considered the request of A/g Deputy CMO Mas, and I am pleased to approve one C5 staff member to provide mentoring and assistance to PNG ICA with planning for the international removal of 22 non refugees to Bangladesh in March 2018. 85 The evidence does not establish that any Australian official made a decision to remove AKU21 from Papua New Guinea. Ms Noormahomed's evidence was that the decision to remove AKU21 was made by officers within the Papua New Guinea ICA. Ms Noormahomed was not aware of any Commonwealth official being involved in the decision to remove him. 86 Ms Noormahomed had some limited involvement in AKU21's removal, mostly concerning travel. On 11 April 2018, Ms Noormahomed sent an email to Ms Black requesting assistance with facilitating travel to relocate AKU21 from Manus Island to Port Moresby. Ms Noormahomed stated at the hearing that this was conducted in preparation for the onward international travel to Bangladesh. 87 The documentary evidence indicates that the Papua New Guinea authorities were responsible for AKU21's removal on 16 April 2018. The Department of Home Affairs prepared a risk assessment which identified the risks to the escorting party, comprising two ICA officers and one C5 officer. The document stated under the heading "background" that the ICA had assessed that AKU21 had no options to remain in PNG and that a C5 officer would assist in the removal in a "mentoring" role: Under the Regional Resettlement Arrangement, the Australian Government agrees to fund expenses relating to PNG ICA removal operations. PNG ICA has assessed that [the first applicant] has no other options to remain lawfully in PNG and therefore are scheduled for removal departing Port Moresby, PNG on 16 April 2018. Two PNG ICA officers and one C5 Mentor will effect the removal operation into Dhaka, Bangladesh. [The C5 mentor] has been contracted to the Department of Home Affairs for mentoring PNG officials on 'security escorting' under The International Division Capacity Building Programme. 88 The document does not suggest that the Australian government was assuming responsibility for risk mitigation towards AKU21. It considered risks to the escorting party. By contrast, the document titled "Involuntary Removal" prepared by the Papua New Guinea ICA completed a risk assessment of risks to AKU21 that were said to arise during the course of the transfer from Manus Island to Port Moresby. That document, among other things, stated under the heading "Intelligence Assessment": In the absence of historical case history and individual risk ratings, the following Intelligence Assessment of [AKU21] are as follows: • It is LIKELY [AKU21] will attempt some form of self-harm throughout his escorted relocation; • It is CERTAIN [AKU21] had phone access during his stay at the MIRPC; • It is CERTAIN [AKU21] had phone access during his stay at Granville; • It is CERTAIN legal institutions and media will have a vested interest in this relocation operation. All should be done to maintain the integrity of operational security and refuse [AKU21] access to communication devices throughout the operation. The following risks to the operation have been identified: [AKU21] • Security Risks to the Aircraft (UNLIKELY) • Self-harm whilst under escort (UNLIKELY) • Assault of Escort Officers, aircraft personnel or officials during the Removal Operation. (UNLIKELY) • Attempted engagement with media, legal representative or the attraction of public attention. (PROBABLE) [Table not extracted] During the Relocation (Removal) Operation, PNG /CSA will be performing its mandatory role of enforcing compliance of unlawful non-citizens, in this case a Non Refugee in accordance with Papua New Guinea (PNG) Migration Act 1978 and other Escort Officers from Air Niugini, Police and C/S will be 'Authorised Officers' to participate in the Operation under the Migration Act 1978. 89 This document identifies that the ICA took responsibility to assess AKU21's background and risk profile before proceeding with his removal. 90 The document also does not suggest that any C5 contractor or Australian official was part of the escort team involved in this transfer to Port Moresby ahead of onward travel to Bangladesh. 91 Thirdly, the applicants submitted that the Commonwealth respondents assumed a general duty of care over all "transitory persons". Apart from the specific duty contended for in the case as modified by oral submissions made on 1 July 2022 and what is found in the statement of claim (in particular paragraph 15), the applicants did not clearly identify a duty of any precise scope in relation to "transitory persons". The case as pleaded in parts of the statement of claim and as put in the context of the interlocutory application was, in substance, that the Commonwealth respondents owed a duty to "transitory persons" to protect them from whatever might happen at least so far as concerns the family unit or any future family unit. 92 The Commonwealth respondents submitted that the provisions of the Migration Act could not be characterised as providing for a general duty of care towards "transitory persons". The purposes of the regional processing regime contained in Div 8 of Part 2 of the Migration Act are set out in s 198AA. The relevant powers of officers in relation to "transitory persons" are primarily exercised in connection with the transfer of persons to a regional processing country: s 198AD. Section 198AHA(2) provides that, where the Commonwealth has entered into an arrangement with a person or body in relation to the regional processing functions of a country, the Commonwealth can take any "action" in relation to the arrangement or regional processing functions. 93 In S99, Bromberg J stated in relation to section 198AHA: [246] …The purpose of s 198AHA is to authorise the Commonwealth to enter into arrangements which facilitate the regional processing functions undertaken in the regional processing country. As French CJ, Kiefel and Nettle JJ said in M68 at [46]: Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose. [247] It is not in contest that the powers conferred by s 198AHA to facilitate regional processing functions extend to providing assistance to UMAs whose refugee status has been recognised and who are awaiting re-settlement in the regional processing country. [248] The characteristics of the Subdiv B regime which I have described, make it apparent that the regime "erects or facilitates a relationship" (cf Graham Barclay at [146]) between the Commonwealth and UMAs, in which the Commonwealth is empowered to provide assistance in relation to the processing in the regional processing country of protection claims of UMAs made under the Refugees Convention. The Commonwealth may or may not enter that relational field. It is not compelled to provide assistance, but it is empowered to do so. [249] The facts reveal that the Commonwealth has entered the field by providing very substantial assistance to the regional processing functions taken up by Nauru pursuant to the MOU... 94 The facts in the present case are quite different to those in S99. At the time of his deportation, AKU21 was not a person who was awaiting resettlement in the regional processing country. He was a person to whom PNG had assessed it did not owe protection obligations and a person whom PNG had decided to remove. The Commonwealth was not shown to have relevantly "participate[d] in the detention, maintenance and care" of AKU21, while his claim for refugee status was being processed, in a way comparable to the actions of the Commonwealth in S99. Less still can it be said to have "participate[d] in the detention, maintenance and care" of AKV21. AKV21 has never been detained. The evidence does not clearly disclose who has cared for him, although the case was run on the basis that his primary carers have been his maternal grandparents. Nor did the Commonwealth assume responsibility for AKU21's care in a way equivalent to that in S99. 95 The facts in S99 can be seen in what Bromberg J stated at [250] - [253] in a passage which also makes clear that the applicant in that case depended on the Commonwealth for her existence: [250] …It is not necessary to determine whether a duty of care was owed by the Commonwealth to the applicant while she was detained on Nauru and prior to her status as a refugee being recognised. It is sufficient to observe, as I do, that the facts show that the applicant was dependent upon the assistance provided by the Commonwealth to sustain her very existence. In that respect, the Commonwealth provided or was directly responsible for the provision to her of food, water, housing, security and medical services to maintain her health and wellbeing. [251] The facts at [50]-[69] also demonstrate that the sustenance provided by the Commonwealth to the applicant continued after the applicant ceased to be detained on Nauru. The "settlement services" extended beyond basic necessities to the education and welfare services provided by Connect. [252] The facts are clear. The applicant had no means of survival independent of the services provided by the Commonwealth through its Service Providers. She was dependent upon the Commonwealth for her very existence. The same may be said of each of the persons in the class. Again, it is not necessary that I consider whether a general duty of care was owed by the Commonwealth to the applicant to maintain her basic needs whilst a refugee on Nauru. However, the applicant's dependence upon the Commonwealth for her very existence provides the contextual framework in which the specific duty of care claimed should be properly considered. [253] I turn next to the most-immediate facts. Having been raped and fallen pregnant, the applicant sought the assistance of the Commonwealth through its medical services provider, IHMS, to obtain an abortion. The facts demonstrate that the Commonwealth: • procured medical professionals to assess the applicant's physical and psychological condition and determine what treatment was required including whether the applicant ought to undergo a termination of her pregnancy and for that purpose be transferred to another country; • through its officials, including Dr Brayley and Mr Nockels, gave consideration to the medical needs of the applicant and whether she should undergo a termination of her pregnancy and for that purpose be transferred to another country; • decided to facilitate the transfer from Nauru to Papua New Guinea of the applicant for the purpose of the termination of her pregnancy; • procured the medical professionals and facilities of PIH to perform an abortion in order to terminate the applicant's pregnancy; • provided medical records of the applicant to PIH for the purpose of the conduct of the abortion; and sought (and received) her consent to PIH providing to the Department of Immigration and Border Protection, amongst others, her "personal medical information"; • procured travel documents (without the applicant's involvement) sufficient to permit the applicant to travel to Papua New Guinea; • procured a visa for the applicant (without her involvement) to enter Papua New Guinea and remain there for the purpose of having an abortion; • made arrangements for the applicant to travel to Papua New Guinea, including by facilitating her passage through immigration and security and selecting and providing a flight to Papua New Guinea; • made arrangements which facilitated the applicant's travel from the airport at Port Moresby to a hotel in Port Moresby; • procured the applicant's accommodation in Port Moresby; • procured security personnel to guard the applicant and provide her food in Port Moresby; • procured the services of PIH to treat the applicant when she fell ill in Port Moresby; • paid for all costs of and incidental to the applicant's travel to, and care and maintenance in, Papua New Guinea. 96 The specific duty of care relied upon in S99 was summarised by Bromberg J at [255] in the following way: [255] The putative duty in question is the duty to provide the applicant with a safe and lawful abortion or, more exactly, a duty to exercise reasonable care in the discharge of the responsibility that the Minister assumed to procure for the applicant a safe and lawful abortion. I turn then to the "salient features" analysis, noting as I go that one of the three categories of conduct by a statutory repository of power in which a duty of care may be attracted is, as Ipp JA (with whom Mason P and McColl JA agreed) said in Amaca at 317: Where a public authority acts so that others rely on it to take care for their safety. 97 One of the critical features of the relevant circumstances in S99 was the degree of control able to be exercised by the Minister. In this respect, Bromberg J observed: [258] I consider next the degree and nature of control able to be exercised by the Minister to avoid that harm being occasioned on the applicant. The facts show that the Minister controls whether the applicant can access an abortion and where that abortion takes place and, therefore, the legal and medical setting in which an abortion may be accessed by the applicant. 98 In the present case, the specific duty of care relied on at the hearing on 1 July 2022 was said to be a duty to inform the PNG authorities of AKU21's wife and child before his removal from Bangladesh. The duties pleaded in the statement of claim and relied upon in the context of the interlocutory application are cast at a higher level of generality. Unlike in S99, the Commonwealth has not assumed responsibility for the wellbeing or care of AKU21, or his wife or child. The Commonwealth did not make the decision that AKU21 was not a refugee and was not relevantly involved in that decision. The Commonwealth did not have power to make or influence Papua New Guinea's decision to remove AKU21 from Papua New Guinea in 2018. His removal was carried out under the laws of that country. 99 AKU21 had been living in the general community once Manus had become an "open facility". He married according to the laws of Papua New Guinea and had a child with his wife. These matters were recorded by the relevant PNG authorities as evidenced by the issuing of a marriage certificate and a birth certificate. The Commonwealth respondents were not shown to have been involved in the management of AKU21 in the PNG community or in the taking of any of the relevant decisions. 100 There was no duty of care to inform Papua New Guinea in the context of its decision to deport AKU21 in 2018 that AKU21 had a wife and child arising from the provisions of Div 8 of Part 2 of the Migration Act or otherwise. I am not satisfied that there was a duty of the scope contended for in oral submissions at the hearing on 1 July 2022. Further, any failure to inform the relevant PNG authorities was not causative of any loss or damage. 101 As I have said, I understood the applicants to have narrowed the claim at the hearing on 1 July 2022 in the manner addressed earlier, but I have nevertheless sought to address the statement of claim which was cast in more general terms in what I have already said and by these further matters. 102 The statement of claim asserted a duty of care from the time of AKU21's transfer from Christmas Island to Papua New Guinea in 2013. Paragraph 29 of the statement of claim pleaded that the Commonwealth respondents "owed the applicants a duty to take reasonable care", inter alia, "[t]o protect the applicant and his family should he form a family in PNG, from unreasonable risks of harm". 103 Apart from the narrower case as put at the hearing on 1 July 2022 there was no clear identification of something specific which the Commonwealth is alleged to have done or failed to do at the time of or before AKU21's deportation in 2018 which would breach this alleged obligation to protect AKU21 and the family he might later form in Papua New Guinea. I will return to the interlocutory application which seeks orders requiring the Commonwealth respondents to offer AKU21 and his family removal from Papua New Guinea to Australia or another third country. 104 No clear submission was advanced as to how such a broad and apparently unconfined duty of care could arise in the present context and circumstances. To the extent the claim arising from any such duty relies upon a contention that AKU21's detention was unauthorised, this was not established. AKU21 was detained in Papua New Guinea by the executive government of Papua New Guinea: Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 at [34]. That detention was not shown to be unlawful. 105 The contention that the Commonwealth respondents detained AKU21 was not made out. 106 To the extent it was alleged that the Commonwealth respondents had a duty to prevent the Papua New Guinean authorities from removing AKU21 to Bangladesh in 2018 there was insufficient evidence of circumstances which could give rise to the existence, or establish a breach, of such a duty. The decisions were decisions of Papua New Guinean authorities in which the Commonwealth respondents were not shown to have any practical or real involvement. 107 It was for the government of Papua New Guinea, having determined that AKU21 was not a refugee, to determine whether AKU21 would be permitted to remain in the country. That decision was as an "independent exercise of sovereign … power" of the kind referred to in Plaintiff M68 at [34], holding that it was the government of Nauru, and not the Commonwealth, that detained the plaintiff pursuant to regional processing arrangements. 108 There was insufficient evidence to conclude that the Commonwealth respondents were capable of preventing AKU21's removal in 2018 or of influencing Papua New Guinea's decision in that regard in any meaningful way. 109 The removal of AKU21 from Papua New Guinea in 2018 depended on the application by relevant Papua New Guinean authorities of Papua New Guinean law to a person in Papua New Guinea. There was no duty on the Commonwealth respondents to seek to influence the decision making of the relevant Papua New Guinean authorities in 2018 or before. 110 The Commonwealth had no involvement in AKU21's decision to re-enter Papua New Guinea illegally after his deportation and has not been involved in AKU21's detention consequent upon his illegal entry into Papua New Guinea. The Commonwealth has not been involved in AKU21's litigation in Papua New Guinea. 111 There is no sound legal or evidentiary basis to conclude that the Commonwealth respondents owed or owe a duty to "take all administrative action necessary to reunite the family and to end the imprisonment of AKU21", or to take steps to prevent his deportation or to offer to AKU21 and his family to remove them to Australia or a third country. 112 There is no sound legal or evidentiary basis for the applicants' contention that the Commonwealth respondents owe a duty to have sought to procure or to seek to procure AKU21's release. The applicants have not established a breach of any duty which could be the subject of a claim for damages or which could have supported a mandatory injunction. 113 The existence of duties of broad and unconfined scope the kind for which the applicants contend would be in tension with the sovereign right of the Papua New Guinean government to enforce its domestic laws, including laws regulating who is permitted to enter the country. 114 The "salient features" identified by Allsop P in Stavar at [103] point against the existence of duties in the broad terms asserted in parts of the statement of claim and as asserted as the ground in the interlocutory application. A consideration of each of the following factors points against the existence of such a duty: the degree and nature of control able to be exercised by the respondent to avoid harm; the degree of vulnerability of the applicant to harm from the respondent's conduct; the degree of reliance by the applicant upon the respondent; any assumption of responsibility by the respondent; the proximity or nearness in a physical, temporal or relational sense of the applicant to the respondent; and consistency with the terms, scope and purpose of the Migration Act. 115 More specifically to the interlocutory application, the applicants have not established the existence of an arguable duty of care of a scope which could support an order for a mandatory injunction with the intended effect of seeking to prevent a breach which would otherwise occur. One reason for AKU21's initial deportation was that his continued presence in Papua New Guinea did not conform with PNG law. Papua New Guinea had found that it did not owe him protection obligations. His only options of being in Papua New Guinea legally could be pursued from outside of Papua New Guinea. 116 More recently, AKU21 entered PNG illegally and has been detained. PNG proposes to deport AKU21 in accordance with its laws. I do not accept that, in the circumstances which have occurred, the Commonwealth respondents have or continue to owe a duty to take reasonable steps to protect the right to family unity of AKV21 and his immediate family members which would extend to requiring it to offer to remove AKV21 or his family from Papua New Guinea to a third country. I reach this conclusion assuming, without deciding, that AKV21 remains a "transitory person". The same conclusion applies if AKU21 also remains a "transitory person". Accepting that the Commonwealth respondents have powers available to them under the Migration Act (including under ss 198AHA and 198B) and otherwise, and accepting that Australia has entered into international obligations which include its obligations under the Convention on the Rights of the Child, and I refer specifically to Article 16, I do not accept that the circumstances of this case give rise to a duty on the Commonwealth respondents which would be breached if Papua New Guinea deported AKU21 such that the mandatory injunction ought to be made. I reach that conclusion even on the prima facie test ordinarily associated with the granting of interlocutory relief consistently with the principles articulated in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57. 117 The applicants' arguments concerning duty were based on their contended status as "transitory persons" within the meaning of s 5 of the Migration Act. The Commonwealth respondents submitted that the applicants were not "transitory persons" after Papua New Guinea had determined that it did not owe AKU21 protection obligations or, if not then, after he had been removed to Bangladesh in 2018. The applicants submitted that both remained "transitory persons" and, in particular, submitted that AKV21 remained and remains and, according to the definition in s 5 of the Migration Act, will always remain a "transitory person" no matter what happens. It is unnecessary to decide these questions. I have approached the matter on the basis most favourable to the applicants, that is, on an assumption that both remain "transitory persons". Whether or not the applicants are still "transitory persons", I am not satisfied that the applicants have established: (a) that there was a duty to inform the PNG authorities that AKU21 had a wife and child in circumstances where those authorities were already aware and known to have been considering those matters in the context of having decided that Papua New Guinea did not owe protection obligations and of then deciding to deport AKU21 in 2018; or (b) the existence of the various more broadly defined duties of care pleaded in the statement of claim; or (c) any breach or threatened breach of any duty of care; (d) even at a level sufficient for the purposes of a grant of interlocutory relief, the existence of the duty asserted in the interlocutory application filed on 7 September 2022 as capable of justifying an order for the mandatory injunction sought.

CONCLUSION 118 The application must be dismissed as must the interlocutory application filed on 7 September 2022. 119 The applicant should pay the first and third respondents' costs of the proceeding including of and incidental to the interlocutory application. I certify that the preceding one hundred and nineteen (119) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Thawley.