Whether conditions on the applicant's detention should be imposed
124 The final issue is whether any conditions can and should be placed upon the applicant's detention pending the Secretary carrying out the duty under s 198AD(2). The applicant submits that orders should be made requiring that the applicant be detained at the home of one of his supporters, in either Brisbane or Perth. The respondents oppose any such orders.
125 The applicant relies upon WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625, where French J observed at [56], in relation to the obligation under s 198(6) of the Act to remove an unlawful non-citizen as soon as reasonably practicable:
The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister. And it may be that, as an incident of such a mandatory order, the Court might direct conditions of detention which are calculated to minimise the harm suffered by the detainee as a consequence of the delay in effecting removal.
126 The applicant submits that the definition of "immigration detention" makes it plain that an unlawful non-citizen can be detained under s 189 at any location at all, provided that the person is, "in the company of, and restrained by", one or more officers. The applicant submits that the Court is not precluded from ordering detention in that manner at a particular location.
127 The respondents submit that the Court has no power to require an officer to detain the applicant in a residential environment, or any particular place. They submit that such a power would be inconsistent with the definition of "immigration detention" in s 5, which vests in the Minister, the power to specify a particular place of detention, and with s 197AB which vests in the Minister the power to make a residence determination order. It is also submitted that such a power would be inconsistent with s 273(1) which vests in the Minister the power to establish and maintain detention centres.
128 Any power of the Court to order, not just mandamus, but conditions of detention calculated to minimise the harm suffered by the detainee pending performance of the duty, will arise under s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). That section provides:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
129 There are limits upon the kinds of orders that may be made pursuant to the power conferred under s 23 of the FCA Act. In Jackson v Sterling Industries Ltd (1987) 162 CLR 612, Brennan J observed at 620-621:
…[Section] 23 confers on the Federal Court such powers as are necessary or incidental to the exercise of that Court's jurisdiction. But that is not to say that the Court's discretion to mould relief is at large. The relief which the Court is authorized to give does not extend beyond the grant of remedies appropriate to the protection and enforcement of the right or subject-matter in issue.
130 Another statute may also expressly or impliedly limit the power of the Court to make orders under s 23 of the FCA Act. In Thomson Australian Holdings Proprietary Limited v Trade Practices Commission (1981) 148 CLR 150, the majority of the High Court held at 161:
When a specific statute which invests the Court with jurisdiction in matters of a particular class does so in such a way as to limit the power of the Court to grant relief of a particular kind, there is no basis for transcending that limitation by recourse to the general provisions of the Federal Court of Australia Act.
131 Section 189(1) of the Act provides, relevantly, that if an officer knows or reasonably suspects that a person in the migration zone is an unlawful non-citizen, the officer must detain the person. As the applicant is known by officers to be an unlawful non-citizen, the applicant must be detained. The Court cannot order the applicant's release from detention: AJL20 at [49]-[52], [73].
132 The expression "detain" is defined in s 5 to mean, relevantly, "keep, or cause to be kept, in immigration detention". The expression, "immigration detention" is then defined in s 5 to mean:
(a) being in the company of, and restrained by:
(i) an officer; or
(ii) in relation to a particular detainee - another person directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the detainee; or
(b) being held by, or on behalf of, an officer:
(i) in a detention centre established under this Act; or
(ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or
(iii) in a police station or watch house; or
(iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or
(v) in another place approved by the Minister in writing;
but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b).
…
133 Subdivision B, Division 7, Part 2 has the heading, "Residence determinations". The subdivision provides, relevantly:
197AA Persons to whom Subdivision applies
This Subdivision applies to a person who is required or permitted by section 189 to be detained, or who is in detention under that section.
197AB Minister may determine that person is to reside at a specified place rather than being held in detention centre etc.
(1) If the Minister thinks that it is in the public interest to do so, the Minister may make a determination (a residence determination) to the effect that one or more specified persons to whom this Subdivision applies are to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).
(2) A residence determination must:
(a) specify the person or persons covered by the determination by name, not by description of a class of persons; and
(b) specify the conditions to be complied with by the person or persons covered by the determination.
…
134 The Act establishes three forms of "immigration detention". They cover different, although overlapping, territory. The first form, in paragraph (a) of the definition of "immigration detention" in s 5(1), involves an unlawful non-citizen being "in the company of, and restrained by" an officer or other authorised person. The second, in paragraph (b) of the definition, requires the person to be "held" by, or on behalf of, an officer, in a detention centre; or in a prison or remand centre; or in a police station or watch house; or on a vessel (where s 249 applies); or in another place approved by the Minister.
135 The difference between the first form and the second form may be illustrated by using an example of an unlawful non-citizen who is in immigration detention when "held" in a detention centre and remains in immigration detention while "in the company of, and restrained by" an officer when taken to a hospital. It can be accepted that the first form will generally be used in the short-term, whereas the second form may be used for both short-term and longer-term detention.
136 In respect of the first form of immigration detention, on its ordinary meaning and in the context of the Act as a whole, "restrained" includes direct physical restraint, but also encompasses directing restrictions or limits upon the physical space in which an unlawful non-citizen has liberty. It is intended to convey the meaning that the physical freedom of movement of a person is curtailed in such a way that might otherwise be actionable under the tort of false imprisonment: see Okwume v Commonwealth of Australia [2016] FCA 1252 at [115]. That is, constant, direct, physical restraint is not required. This is made clear by other uses of the term "restrain" in the Act where the term is used with reference to whole areas, such as "on" (not "within") a "vehicle or vessel", "ship or aircraft": see, for example, ss 198AD(3)(b), 198B(2)(b), 245F(9A)(b). It follows that a person may be restrained by an officer for the purpose of detention under s 189(1) by being confined, physically or by direction, to a particular place. The Act does not require the place of such confinement to be specified by a direction or determination of the Minister.
137 In respect of the first form of immigration detention, the unlawful non-citizen must also be "in the company of" an officer. That does not necessarily require constant, direct physical surveillance. For example, an unlawful non-citizen undergoing surgery does not cease to be in "immigration detention" simply because an accompanying officer waits outside the closed door of the operating theatre. However, physical proximity is required. In that way, a direction for confinement in a particular place can be enforced.
138 The second form of immigration detention ("held") does not refer to direct physical restraint, but connotes restriction of movement within an enclosed or limited physical space, such as a detention centre, prison, vessel or other place. The requirement to be "held" by, or on behalf of, an officer "in" another place approved by the Minister within paragraph (b)(v) of the definition of "immigration detention" in s 5(1) of the Act also indicates that the unlawful non-citizen is confined to or within the limits of a physical space. However, the unlawful non-citizen is not required to be in the company of an officer.
139 The third form of immigration detention, under s 197AB(1), is where the Minister makes a determination to the effect that a person is to "reside at a specified place, instead of being detained at a place covered by the definition of 'immigration detention'" in s 5(1) of the Act. There is an evident distinction between the third form of immigration detention and the second form. Under the third form, while the unlawful non-citizen must reside at a specified place, the person is not (subject to any conditions imposed), prevented from leaving that place from time-to-time. There is also an evident intention to distinguish the third form of detention from the first form in that the unlawful non-citizen is not required to be in the company of and restrained by an officer.
140 In respect of the second form of immigration detention, the Court cannot compel the Minister to exercise the power to approve another place: Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 at [13], [59], [70], [99] (which considered the Minister's power under ss 46A and 195A to grant a visa to a detainee); SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569; (2012) 292 ALR 29 at [9], [113] (which considered the Minister's power to make a residence determination under s 197AB). That would be inconsistent with s 273(1), which vests in the Minister the power to establish and maintain detention centres, and with the definition of "immigration detention" in para (b)(v) of s 5(1) of the Act which makes it clear that it is exclusively for the Minister to approve "another place" as a place of detention within which an unlawful non-citizen is to be confined. It is apparent that the legislature, by implication, intended to exclude the power the Court might otherwise have under s 23 of the FCA Act to order the detention be in "another place" under the second form of immigration detention.
141 In respect of the third form of immigration detention, s 197AB(1) exclusively confers upon the Minister the power to make a residence determination. The powers implicit in para (b)(v) of the definition of "immigration detention" cannot be extended, "to achieve the benign form of accommodation contemplated by s 197AB": SBEG v Secretary, Department of Immigration and Citizenship (2012) 208 FCR 235 at [40]. It is apparent that the legislature intended to exclude the power the Court might otherwise have under s 23 of the FCA Act to make a residential detention order under the third form of immigration detention.
142 I have not been referred to any authority which dictates that the Court cannot, under the power conferred by s 23 of the FCA Act to make orders that are appropriate, direct that officers are to detain an unlawful non-citizen at a particular place using the first form of immigration detention.
143 Further, in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 259 FCR 576, the Full Court considered an appeal against an interlocutory injunction in circumstances where it was alleged that the Secretary was negligent in subjecting the applicant to particular conditions of detention. Justice Lander (with whom the other members of the Court agreed) held at [128]-[133] that there was a serious question to be tried in relation to a continuing breach of a duty of care by the Secretary, and that the balance of convenience favoured requiring the applicant to be moved to another detention centre. His Honour considered at [143] that the appropriate order was an interlocutory injunction restraining the Secretary from detaining the applicant at particular detention centre in South Australia and from removing the applicant to a particular detention centre in Western Australia. This case was concerned with the second form of immigration detention, but it demonstrates that, in a matter where the Court has jurisdiction, it is within the power of the Court to achieve particular conditions of detention by ordering that an unlawful non-citizen be detained at a particular detention centre. It cannot be thought, therefore, that the conditions upon which a detainee is detained, and the place of detention, are exclusively for the Minister or for officers to determine.
144 Under the first form of immigration detention (an unlawful non-citizen being in the company of, and restrained by an officer) it is for officers to decide where the person is to be detained. Further, it is for officers to determine whether that form of detention will be used. The Minister does not make such a determination, or is at least not conferred with the exclusive power to make that determination: cf. WKMZ v Minister for Home Affairs [2020] FCA 1127 at [115]. These officers are the same officers who are required to perform the duty under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country.
145 Section 23 of the FCA Act confers upon the Court the power, in relation to matters in which it has jurisdiction, to make orders of such kinds as the Court thinks appropriate. It may be noted that the Act expressly limits the application of provisions of the FCA Act such as Part IVA, ss 24, 32AB and 33, but not s 23. There is no basis for concluding that the legislature excluded the power of the Court to order that officers detain a person under the first form of detention and the place of such detention.
146 In a circumstance where officers have refused or failed to perform a statutory duty, orders may be made pursuant to s 23 of the FCA Act to minimise the harm suffered as a consequence of that default. The Court has the power to make orders, ancillary to mandamus, that officers detain an unlawful non-citizen by causing the person to be in the company of, and restrained by officers at a particular place (even if that place is not a detention centre, prison, watch house, or other place of detention approved by the Minister).
147 The respondents submit, however, that any power to impose additional conditions on the grant of mandamus would necessarily be at the discretion of the Court and, for several reasons, the discretion should not be exercised in favour of ordering the detention of the applicant at the home of one of his supporters.
148 The respondents submit, first, that, at the earliest, the obligation to take the applicant under s 198AD(2) arose on 12 February 2021 at the conclusion of the merits review process, and that this is not a case where there has been extensive or unwarranted delay in performing the duty. Second, the affidavit of Gerard Watts (which was not ultimately admitted into evidence) makes clear that detention in the conditions envisaged by the applicant is not appropriate having regard to the security risk posed by the applicant and his previous behaviour in detention. Third, no assessment has been made as to whether the places of residence proposed for the applicant are appropriate and safe for the purposes of detention. Fourth, detention in a home environment, involving a team of guards and additional ancillary costs such as transport, cleaning and catering, is not an appropriate use of public resources. Fifth, the directions sought by the applicant would tend to undermine the policy of ss 189 and 196 of the Act, namely the mandatory detention of unlawful non-citizens. In particular, the making of the directions would tend to undermine the policies and procedures developed to ensure that detention placements and the grant of bridging visas are tailored to the specific circumstances of an individual case. Sixth, there is insufficient evidence to suggest that the applicant has any specific characteristic which would make it essential for him to be detained in circumstances other than the ordinary environment of a detention centre. Seventh, there is no evidence that the property owners would permit a guard to be in their homes in the "company" of the applicant at all times.
149 Before discussing the evidence concerning the proposed detention of the applicant at the home of one of his supporters, it is relevant to describe something of the procedural history of the mandamus application.
150 By orders made on 24 June 2021, I directed that the parties file and serve written submissions concerning the judgment of the High Court in AJL20. By consent orders made on 16 July 2021, the time for compliance was varied such that the applicant was to file and serve his submissions by 9 July 2021, and the Minister was to file and serve submissions in response by 23 July 2021. The orders requiring the Minister to file and serve submissions were vacated by consent on 9 August 2021. The written submissions filed by the applicant accepted that habeas corpus was no longer available, but contended that mandamus, together with directions requiring that the applicant be detained at the home of one of his supporters, should be granted. The applicant filed further written submissions concerning AJL20 on 8 September 2021, and the Minister filed written submissions on 14 September 2021 which addressed and opposed the orders sought by the applicant.
151 On 30 August 2021, I made orders by consent that the hearing of the mandamus application be listed for 15 September 2021. I ordered that the respondents file and serve any further affidavits upon which they intended to rely by 4.30 pm on 3 September 2021. The respondents did not file any affidavits by that time.
152 At the hearing of the mandamus application, the respondents sought to rely upon the affidavit of Mr Watts, a senior officer of the Australian Border Force, deposing to matters going to the appropriateness of orders that the applicant be detained in a residential setting. The affidavit sought to demonstrate that the applicant may not be suitable for detention at the home of his supporters, that there was a need for a security assessment to be carried out in respect of his supporters' home and an assessment as to the costs of detention at his supporters' home. The affidavit was served at about 1.00 pm on 14 September 2021, the day before the hearing. The affidavit was served well outside the 3 September 2021 date permitted under the consent order of 30 August 2021. The respondents had not sought an extension of time, and did not apply for any adjournment of the hearing.
153 The applicant objected to the admission of Mr Watts' affidavit into evidence. I upheld that objection. There had been a failure by the respondents to comply with the consent orders. I accepted that the late service of the affidavit would cause the applicant prejudice. The applicant is detained at the Perth Immigration Detention Centre in Western Australia, and there could not have been adequate time for his lawyers to obtain instructions and prepare an affidavit in response. There was no explanation provided in admissible form as to why the respondents had not complied with the order of 30 August 2021 and why there had been late service of the affidavit. The respondents' conduct was in breach of their obligation under s 37N(1) of the FCA Act. In these circumstances, I declined to admit the affidavit into evidence.
154 The consequence is that there is no evidence from the respondents to demonstrate the unsuitability or impracticability of the conditions of detention sought by the applicant, or the unsuitability of the applicant for such detention.
155 I have referred to the affidavit of Ms Sullivan, a Departmental officer, who deposes that, if the applicant is to be removed to Nauru, there would have to be consultation and an in-principle agreement to receive the applicant and a health, security, protection and management assessment. If there are obstacles to transfer, the transfer may be deferred until the relevant issues are resolved. If there are obstacles that cannot be resolved, the case will be referred to the Minister for consideration of the exercise of her powers under s 198AE of the Act.
156 The applicant relies upon the affidavit of Dane de Leon affirmed on 9 July 2021, who resides alone in a two-bedroom apartment in Brisbane, and is willing to have the applicant live there free of charge, even if this arrangement were to require that an officer or officers be stationed there at all times.
157 The applicant also relies upon an affidavit of Anette Hermann. Ms Hermann deposes that she and her husband know the applicant. Ms Hermann and her husband are the only occupants of a six bedroom house in Perth. They would be happy to have the applicant live with them free of charge for as long as is required. They are also willing and able to pay for his food and other daily consumption needs. Ms Hermann states that she is content for, "a guarding officer to remain stationed on our property".
158 There is in evidence a report of Guy Coffey, a clinical psychologist, dated 16 December 2020 concerning the applicant. Mr Coffey notes that the applicant has attempted self-harm and has engaged in a hunger strike during his period in detention. The applicant does not speak, and has been diagnosed with "psychogenic mutism". Mr Coffey was unable to determine whether or not the applicant's mutism is involuntary. Mr Coffey is of the opinion that the applicant's volatility, self-harm and adversarial relationship with detention staff is a product of the interaction between emotional dysregulation associated with post-traumatic stress disorder, chronic demoralisation and the effect of extended detention on his personality functioning.
159 Mr Coffey states that there is unequivocal clinical and research evidence that the mental health of people held in immigration detention deteriorates over time, that exposure to violence in detention hastens the deterioration, and that a lack of access to structured and meaningful activity can contribute to a decline in well-being. Mr Coffey states that the closed environment, over time, appears to incubate a tendency toward self-harming in response to emotional distress. Mr Coffey believes that an interaction between post-traumatic stress disorder, the applicant's personal characteristics and the detention environment explains the applicant's mental state. In his opinion, the largest contribution to the applicant's mental state has been his extended detention. Mr Coffey would not anticipate any significant improvement in the applicant's mental health while he is being detained in his current circumstances. Mr Coffey indicates that if the applicant were released into the community and received appropriate psychological treatment, his psychological condition would improve.
160 Ms de Leon, Ms Hermann and Mr Coffey were not required for cross-examination. I accept their evidence.
161 If the applicant is to be required to be detained in the home of one of his supporters, it should be Ms Hermann's home. Ms Hermann's home has six bedrooms, which should be large enough to accommodate the applicant and one or more officers to guard him. It also has the advantage of being in Perth, so that transport of the applicant from the Perth Immigration Detention Centre should be less complex than transporting the applicant to Brisbane.
162 It is necessary to determine whether orders requiring that the applicant be detained at the home of his supporters while the Secretary carries out the duty under s 198AD(2) are "appropriate" within s 23 of the FCA Act. That requires an evaluation of where the interests of justice lie.
163 I have found that the Secretary's refusal and failure to perform the duty under s 198AD(2) is long-standing, in circumstances where it became reasonably practicable to take the applicant to Nauru some eight years ago. Accordingly, I reject the respondents' submission that this is not a case where there has been extensive or unwarranted delay in performing the duty under s 198AD(2).
164 If the duty under s 198AD(2) had been carried out, the applicant would have remained in a regional processing country while his claim for refugee status there was processed. In Plaintiff M68, the plurality at [5] (and Gordon J at [311]) observed that if a person is recognised by Nauru as a refugee, the person is granted a temporary settlement visa and may depart and re-enter Nauru. The High Court also observed at [19], [60], [111], [218], [344] that, in 2015, the government of Nauru had announced that freedom of movement for asylum seekers would be allowed 24 hours per day, seven days per week. Accordingly, if the applicant is taken to Nauru, the applicant will be at liberty in that country. It is evident that the applicant regards liberty in Nauru as preferable to detention in Australia.
165 The respondents have failed to even begin the process of effecting the taking of the applicant to Nauru. Ms Sullivan has not made any estimate of the time it could take for the applicant to be taken to Nauru. It could be weeks, or months, or longer. In the meantime, the applicant will remain incarcerated in immigration detention in Australia.
166 The cause of prolonged detention of the applicant in detention centres in Australia is the Secretary's refusal or failure to perform the duty required under s 198AD(2). It is not through the fault of the applicant. The fault lies with the Secretary.
167 Mr Coffey's unchallenged evidence is clear that ongoing and prolonged detention in the environment of detention centres is contributing to the applicant's poor state of mental health. Even in the absence of that evidence, I would have accepted that prolonged involuntary detention is deleterious and likely to affect the emotional state and mental health of any person. The respondents submit that there is insufficient evidence that the applicant has any specific characteristic which would make it essential for him to be detained in circumstances other than in a detention centre. I am satisfied, however, that incarceration in detention centres is having a significant effect upon the applicant's mental health and that detention at the Hermanns' home will be less deleterious to his emotional state.
168 The respondents submit that Ms Hermann's evidence fails to demonstrate that she and her husband are willing to have two or three officers in their home at all times. I understand this submission to refer to Ms Hermann's statement that she is content for, "a guarding officer to remain stationed on our property". It is too pedantic a reading of Ms Hermann's affidavit to suggest that she is saying that she is willing to have one officer stationed at her home, but not more than one. It is unsurprising that the affidavit would emulate the language of the Act, which uses the singular, "an officer". It is also a misreading of Ms Hermann's evidence to suggest that she is not willing to have officers inside her home, when she expressly states that she will make available ablution facilities needed by any officer. I also observe that this submission was not foreshadowed, so the applicant did not have the opportunity to meet it through further evidence.
169 The respondents submit that the applicant should not be detained at his supporters' home as no assessment has been made as to whether it is an appropriate and safe environment for the purposes of detention. The respondents were provided with the opportunity to produce affidavits, which could have addressed the appropriateness of detaining the applicant at his supporters' home and any safety concerns. They failed to take that opportunity. I am satisfied that the Hermanns' home is capable of being made safe as a place of detention with the provision of an adequate number of guards. Time will be allowed for an assessment of that number to be made.
170 The respondents also submit that detention in a home environment, involving a team of guards and additional ancillary costs such as transport, cleaning and catering, is not an appropriate use of public resources. It can be inferred that there will be substantial expense involved above the cost of detaining the applicant in a detention centre. However, the respondents have not quantified the cost. In the absence of such evidence, I am unable to conclude that the cost outweighs the benefit of conditions that are designed to alleviate the consequences of the Secretary's default.
171 The respondents submit that the directions sought by the applicant would tend to undermine the policy of ss 189 and 196 of the Act, namely the mandatory detention of unlawful non-citizens. That submission cannot be accepted. There is no question of the applicant being released from immigration detention. The proposed conditions concern the form and place of detention.
172 I am satisfied that the interests of justice make it appropriate to order that the applicant be detained at the Hermanns' property pending compliance by the Secretary or other officers with s 198AD(2). I intend that the applicant be detained within the external boundaries of the property, rather than being confined to the house itself. I will not set out the Hermanns' address for reasons of privacy and security.
173 The order will require that such detention commence within 14 days of this judgment so that there can be time for appropriate arrangements to be put in place.
174 The proposed order will be interlocutory as it does not finally determine the rights of the parties. I propose to allow the parties and the Hermanns liberty to apply in case there are any difficulties with the nature or terms of detention which may require directions from the Court.
175 I will also require the parties and the Hermanns to participate in a mediation before a Registrar of the Court to reach agreement upon the logistics of detention at the Hermanns' property. In that respect, I reiterate what I have said at [137]-[138] of these reasons.
176 My preliminary view as to costs is that the respondents should pay the applicant's costs of the mandamus application (proceeding VID 503 of 2021), and that the costs of the application for habeas corpus and other relief (proceeding VID 89 of 2021) should be reserved since that proceeding has not yet been completed. I will consider any submissions as to any different orders as to costs that may be sought.
I certify that the preceding one hundred and seventy-six (176) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rangiah.