AZC20 v Minister for Home Affairs

Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43

Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135

Fatimi Pty Ltd v Bryant [2004] NSWCA 140; 59 NSWLR 678

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; 167 FCR 372

Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149

NATB v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506

NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137

Spencer v Commonwealth [2010] HCA 28; 241 CLR 118

Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598

Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth [2023] FCAFC 75; 298 FCR 160

ZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512

Administrative and Constitutional Law and Human Rights

1. The following parts of the second further amended statement of claim be struck out:

(a) [16] and [18];

(b) [20(i)], [20(ii)], [20(iii)] and [23];

(c) [82];

(d) the word "including" where it appears in [17], [24] and [83].

1. The parties' representatives confer and provide to the Chambers of Justice Kennett, by 5.00 pm on 14 January 2026:

(a) agreed or competing short minutes of order providing a timetable for:

(i) the applicant, if so advised, to file a further amended pleading making amendments rendered necessary by order 1 and in accordance with the reasons of the Court published on 11 December 2025; and

(ii) further steps in the proceeding up to the close of pleadings; and

(b) notification of whether they are content for these timetabling orders to be made in chambers.

1. The amended interlocutory application filed by the respondents on 13 August 2025 and amended on 16 October 2025 be otherwise dismissed.
2. Costs be reserved.

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

1. This proceeding has a convoluted history. The relief sought and the grounds on which it is sought have changed quite considerably, largely in response to developments that have occurred since the proceeding was commenced. In the fifth year of its life, with no defence having yet been filed, it has given rise to a dispute about pleadings.
2. The originating application was filed on 25 February 2021. The only named respondent was the Minister for Home Affairs (the Minister). The applicant was at this stage unrepresented and had been held in immigration detention since his arrival in Australia in July 2013. The orders sought included habeas corpus and a declaration that the detention of the applicant was unlawful. The proceeding was placed in the docket of Rangiah J, who ordered that the application for habeas corpus be heard separately from the other issues and heard that application in May 2021.
3. On 23 June 2021, while his Honour was reserved, the legal landscape was changed by the delivery of judgment in Commonwealth v AJL20 [2021] HCA 21; 273 CLR 43 (AJL20). In the light of the reasoning in AJL20, the applicant accepted that the application for habeas corpus could not succeed and the only available relief was mandamus to enforce the duty of officers to remove him from Australia. He filed an interlocutory application seeking to amend the originating application, so as to seek an order in the nature of mandamus, on 12 July 2021. The amendment was opposed, however, on the basis that this Court did not have jurisdiction to entertain a claim for that relief. The problem was solved by the applicant filing a new proceeding for mandamus in the (then) Federal Circuit Court of Australia and having that proceeding transferred into this Court. The new proceeding (VID503/2021) was also allocated to Rangiah J.
4. Both proceedings came before his Honour on 15 September 2021. Contrary to his earlier indication the applicant still pressed his claim for habeas corpus. He also advanced the claim for mandamus.
5. By this stage, mandamus was not sought to enforce a duty to remove the applicant from Australia under s 198 of the Migration Act 1958 (Cth) (the Act). Instead, the applicant contended that the relevant duty was to take him to a regional processing country (RPC) as soon as reasonably practicable under s 198AD of the Act. He submitted that it had been reasonably practicable to take him to a RPC since 2013 and that had not been done. He further submitted that the duty to take him to a RPC subsisted even though, in 2015, the relevant Minister had "lifted the bar" under s 46A(2) of the Act to permit him to apply for a protection visa (and he had made such an application). The respondents contended that s 198AD did not apply to the applicant but accepted that, if it did, mandamus would lie to remedy the failure by the Secretary to perform the duty under that section.
6. Rangiah J delivered judgment on the claims for mandamus and habeas corpus on 13 October 2021: AZC20 v Minister for Home Affairs [2021] FCA 1234 (AZC20 FC1). His Honour accepted the applicant's submissions on the operation of s 198AD and made an order requiring the Secretary to bring about the taking of the applicant to a RPC as soon as reasonably practicable. (The Secretary does not appear to have been formally joined as a respondent, although he was a respondent in VID503/2021.) His Honour also made some orders concerning where the applicant was to be detained pending his removal to a RPC. The application for habeas corpus was dismissed. On 10 December 2021 his Honour ordered the respondents to pay the applicant's costs in VID503/2021 and reserved the costs of the present proceeding.
7. The respondents filed a notice of appeal from AZC20 FC1 on 10 November 2021. The appeal came before a Full Court (Jagot, Mortimer and Abraham JJ) on 8 February 2022 and judgment was delivered on 5 April 2022: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AZC20 [2022] FCAFC 52; 290 FCR 149 (AZC20 FFC). The Full Court held that s 198AD did not apply to the applicant, granted leave to appeal to the extent leave was required and allowed the appeal. It set aside Rangiah J's orders (other than the dismissal of the habeas corpus application) and ordered that the originating application in VID503/2021 be dismissed.
8. However, on 27 October 2021, the Minister had exercised the power in s 198AE of the Act to determine that the duty under s 198AD did not apply in respect of the applicant (the ministerial determination). When the applicant appealed to the High Court, pursuant to a grant of special leave on 11 November 2022, the main issue became whether the issues agitated before the Full Court were moot and the Court therefore lacked jurisdiction.
9. The High Court delivered judgment on 6 September 2023 (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512). It set aside the orders made in AZC20 FFC on the basis that the appellate jurisdiction of the Court was not enlivened. The High Court did not descend to the merits of the question whether, prior to the ministerial determination of 27 October 2021, s 198AD had applied to the applicant.
10. The present proceeding, not having been fully determined by the judgment in AZC20 FC1, remained on foot (although inactive) in this Court. It was transferred to my docket in December 2022 and adjourned to a date to be fixed after the delivery of judgment by the High Court. Related proceedings involving the applicant were also allocated to me. In one of these proceedings, on 30 November 2023, I ordered the release of the applicant from immigration detention on the basis that the reasoning in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] HCA 37; 280 CLR 137 (NZYQ) was applicable: AZC20 v Secretary, Department of Home Affairs (No 2) [2023] FCA 1497 (AZC20 FC2).
11. A case management hearing in the present proceeding was held on 27 February 2024, at which I granted leave to file an amended originating application and an amended statement of claim. The timetable for these steps to occur was extended twice, and then on 14 August 2024 the proceeding was again adjourned to await the outcome of other cases in the High Court and the Full Court. All of these orders were made by consent.
12. Among the variations of the timetable referred to in the previous paragraph, an amended originating application (AOA) was filed on 31 May 2024. The substantive relief that was now sought was as follows.
    1. A declaration that the Respondents, or one of them, breached the duty under s 198AD of the Migration Act 1958 (Cth) (the Act) by the end of September 2013.
    2. A declaration that the Respondents, or one of them, breached the duty to determine as soon as reasonably practicable whether to exercise power under s 46A of the Act in respect of the Applicant.
    3. A declaration that the Respondents, or one of them, breached the duty under s 65 of the Act to determine the Applicant's visa application as soon as reasonably practicable.
    4. Damages, including aggravated or exemplary damages, for breach of statutory duty and/or false imprisonment.
13. A new timetable for the filing of an application to amend the statement of claim (and subsequent steps if that application was not opposed) was fixed by consent on 6 May 2025. Then, on 26 May 2025 a consent order was made granting leave to file a further amended statement of claim in the form annexed to a solicitor's affidavit affirmed on 9 May 2025. This document (the FASOC) was filed on 28 May 2025.
14. On 30 July 2025 I made orders by consent granting leave to the applicant to file a further amended originating application (FAOA) and a second further amended statement of claim (2FASOC) and timetabling orders for the hearing of any application by the respondents to strike out those documents, or, alternatively, the filing of a defence and a reply. The 2FASOC and the FAOA were filed later on 30 July.
15. The respondents filed an interlocutory application seeking summary dismissal of part of the case articulated in the 2FASOC (or alternative orders having similar effect) on 13 August 2025. An amended version of that interlocutory application was filed on 16 October 2025 (the amended interlocutory application). The application came before me for hearing on 22 October 2025.

1. The FAOA seeks the following relief (in substitution for the prayers in the AOA).
   1. A declaration that the Respondents, or one of them, breached the duty under s 198AD of the Migration Act 1958 (Cth) (the Act) by the end of September 2013.

...

1. A declaration that the Respondents, or one of them, breached the duty under s 65 of the Act to determine the Applicant's visa application as soon as reasonably practicable.
2. Damages, including aggravated or exemplary damages, for breach of statutory duty and/or false imprisonment.
3. The Respondents pay the Applicant's costs of the proceeding.
4. Such further or other order as the Court thinks appropriate.

1. 2FASOC [1] to [7A] plead various preliminary matters including the applicant's arrival in Australia without a visa on 15 July 2013, his status as an "unlawful non-citizen" and an "unauthorised maritime arrival" under the Act, his detention from 15 July 2013 to 30 November 2023 (the detention period), and the effecting of that detention by the Commonwealth and/or officers under the Act.
2. Part A, which comprises 2FASOC [8] to [18], pleads what is termed the "regional processing taking breach of statutory duty". The elements of this claim are as follows.

(a) The duty under s 198AD to take the applicant to a RPC as soon as reasonably practicable continued from 15 July 2013 until one of three terminating events: a ministerial determination under s 198AE; s 198AD ceasing to apply because of the lack of any RPC (s 198AF); or the RPC advising that it would not accept the applicant (s 198AG) (2FASOC [8]).

(b) On 27 October 2021 a responsible Minister exercised the power in s 198AE to disapply s 198AD in the applicant's case (2FASOC [9b]).

(c) Section 198AF did not apply to the applicant during the detention period because there was at least one RPC at all times in that period (Papua New Guinea (PNG) until 1 April 2023, and the Republic of Nauru (Nauru) until 30 September 2022 and again from 7 February 2023)) (2FASOC [10]).

(d) Directions were in place under s 198AD(5) that provided for the applicant to be taken to either PNG or Nauru up to 28 May 2014 and to Nauru after 29 May 2014 (2FASOC [11a]).

(e) On 27 October 2021 "at the latest", Nauru advised an officer under the Act that it would not accept the applicant (2FASOC [11b]).

(f) From 15 July 2013 until 27 October 2021 "the Respondents, or one of them directly or through officers" owed a duty to the applicant to take him as soon as reasonably practicable to a RPC ([2FASOC [12]).

(g) It was reasonably practicable for the respondents, to take the applicant, or cause him to be taken, to a RPC no later than September 2013 [2FASOC [13]).

(h) Neither of the respondents took or caused the applicant to be taken to a RPC at any time (2FASOC [14]).

(i) For these reasons the respondents breached the regional processing taking duty by the end of September 2013 (2FASOC [15]).

(j) 2FASOC [16] alleges that the applicant suffered injury arising from this breach of duty, as follows.

The Applicant has suffered injury, loss and damage by the regional processing taking breach, including because he suffered (and continued to suffer) mental health problems over a lengthy period, including:

1. in 2015, the Applicant first attempted suicide; he tried to hang himself. He lost consciousness and for the remainder of the Detention Period, he was unable to speak;

2. in December 2018, the Applicant engaged in a hunger strike and lost 25kg;

3. on numerous occasions, the Applicant harmed himself in various ways including by swallowing razor blades and taking overdoses of drugs;

4. recurring emotional dysregulation associated with post-traumatic stress disorder, chronic demoralisation, and the effect of extended detention on his personality functioning.

Particulars

The Applicant was detained in immigration detention from the end of September 2013 until 30 November 2023. In addition to the loss of his liberty, the detention caused him distress, hurt, anxiety and humiliation.

(k) 2FASOC [17] pleads that the harm suffered by the applicant was "aggravated", "including" because:

(i) he was relocated between immigration detention centres on numerous occasions, without his agreement or proper notice, in a process that required him to be taken handcuffed through public places and "dislocated him from social support";

(ii) he was taken in handcuffs to medical appointments, causing embarrassment and humiliation;

(iii) he was detained in "inhumane conditions", "including" in rodent-infested buildings, being woken repeatedly by guards, having restricted access to fresh food, and not having access to a mobile phone (which was his means of communication at times when he could not speak); and

(iv) the respondents have not apologised for the breach of duty or taken any remedial action.

(l) 2FASOC [18] is as follows.

The Respondents' conduct directly or through officers as alleged at [14] and [17] above in respect of the regional processing taking duty involved conscious wrongdoing and contumelious disregard of the Applicant's rights, and the rights of others similarly situated, including the right not to be subjected to arbitrary detention, and the right to be treated with humanity and with respect for the inherent dignity of the human person.

1. Part B, which comprises 2FASOC [19] to [24], pleads what is termed the "regional processing period false imprisonment". The elements of this claim are as follows.

(a) At no time was the applicant taken to a RPC (2FASOC [19]).

(b) From 1 October 2013 (or 3 August 2014) until 13 August 2015, and from 29 March 2019 (or 12 February 2021) until 27 October 2021, there was no real prospect that the taking of the applicant to a RPC would become practicable in the then-reasonably foreseeable future (2FASOC [20]). This is put on the basis that:

(i) taking the applicant to Nauru or PNG would have breached (and could be expected in the then-reasonably foreseeable future to breach) "Australia's non-refoulement obligations as defined in [the Act]" by reason of threats, harassment and mistreatment occurring in those countries;

(ii) from 3 August 2014 Nauru lacked the capacity, facilities, infrastructure or willingness to accept the applicant or any other asylum seeker from Australia;

(iii) from 3 August 2014 Nauru lacked, and would lack for the then reasonably foreseeable future, any appropriate accommodation for people taken there by Australia;

(iv) from 7 July 2017 until 28 July 2023, Nauru would not accept the applicant because he was the subject of a qualified security assessment; and

(v) neither RPC would accept the applicant because he lacked the capacity to consent to or cooperate in his taking to a RPC and would not pass a pre-transfer health check.

(c) The detention of the applicant was therefore unlawful during the periods referred to above (2FASOC [22]).

(d) The applicant suffered loss and damage by the unlawful detention, including because he suffered the mental health problems referred to in 2FASOC [16] (2FASOC [23]).

(e) The applicant's harm has been aggravated by the conduct of the respondents "including" for the reasons set out in 2FASOC [17] (2FASOC [24]).

1. Part C, which comprises 2FASOC [25] to [56], pleads what is termed the "removal period false imprisonment". A duty to remove the applicant from Australia under s 198 of the Act is alleged to have arisen on two bases.

(a) A written request to be removed, made on 1 May 2017, is said to give rise to a duty to remove the applicant under s 198(1) of the Act. However, this duty is alleged to arise only after 27 October 2021 (the date when the applicant ceased to be liable to be taken to a RPC under s 198AD) (2FASOC [27]-[28]).

(b) A duty to remove the applicant from Australia is alleged to have arisen under s 198(5) and (5A) or s 198(6) of the Act from 27 October 2021 (2FASOC [30]). This duty is said to be a duty to take the applicant to any country other than a RPC and other than Iran.

1. 2FASOC [29] and [55] allege that at no time after 27 October 2021 was there a real prospect of the removal of the applicant becoming practicable in the then-reasonably foreseeable future. ASOC [34]-[55] plead a number of reasons why this is said to be the case, which do not presently need to be summarised.
2. 2FASOC [56] alleges that, by reason of these matters, the detention of the applicant after 27 October 2021 was unlawful.
3. Part D, which formed part of earlier iterations of the pleading, has been struck through during the course of amendment and need not be considered.
4. Part E, which comprises 2FASOC [67] to [83], pleads what is termed the "visa processing breach of statutory duty". Its elements are as follows.

(a) On 9 September 2015 the applicant made a valid application for a protection visa (2FASOC [67]).

(b) The respondents were under a duty "through officers" to determine the visa application "as soon as reasonably practicable" (2FASOC [68]) (the visa processing duty).

(c) The applicant was interviewed by a delegate of the Minister on 15 March 2016 (more than six months after the application) (2FASOC [69]).

(d) On 24 May 2016 a delegate was expressly or impliedly satisfied that the applicant satisfied the criteria in s 36(1C) and (2)(a) of the Act (2FASOC [70]).

(e) On 13 March 2018 the applicant was advised that the delegate assessing his visa application had changed (2FASOC [72]).

(f) On 9 May 2018 a delegate of the Minister refused the visa application, being unsatisfied that the applicant met the criterion in s 36(2) (2FASOC [73]).

(g) The Immigration Assessment Authority (IAA) affirmed this decision on 29 March 2019 (2FASOC [74]). The visa application was thus "finally determined" (by operation of s 5(9A)(e) of the Act, on that date (2FASOC [76]).

(h) Alternatively, the visa application was "finally determined" on 12 February 2021, when the IAA again affirmed the delegate's refusal to grant the visa after the matter was remitted to it by the Federal Circuit Court following judicial review (2FASOC [76A]).

(i) It was reasonably practicable to have finally determined the visa application within either 7, 28, 90, 183, 270 or 381 days after it was made on 9 September 2015 (2FASOC [77]).

(j) The respondents took 1297 days to finally determine the visa application (2FASOC [78]).

(k) By reason of these matters the respondents breached the visa processing duty (2FASOC [79]).

(l) The applicant suffered loss and damage, including because he was detained for the whole of the visa processing period and suffered the mental health problems outlined in 2FASOC [16] (2FASOC [82]). The harm was aggravated by the conduct referred to in 2ASOC [17] (2FASOC [83]).

(a) summary judgment for the respondents (under r 26.01 of the Federal Court Rules 2011 (Cth) (the Rules) or s 31A of the Federal Court of Australia Act 1976 (Cth)) in respect of:

(i) the regional processing taking breach of statutory duty claim pleaded in Part A of the 2FASOC; and

(ii) the visa processing breach of statutory duty claim pleaded in Part E of the 2FASOC;

(b) alternatively, the stating and answering (under r 30.01 of the Rules) of separate questions asking whether the facts pleaded in Parts A and E of the 2FASOC give rise to causes of action against either of the respondents;

(c) the striking out (under r 16.21(1)(d) or (e) of the Rules) of some or all of:

(i) 2FASOC [8]-[18] (or alternatively [16], [17] and/or [18]);

(ii) 2FASOC [20], [23], [24], [38] and [51]; and

(iii) 2FASOC [67]-[83] (or alternatively [68], [77], [78], [79], [82] and/or [83]); and

(d) as an alternative to striking out these paragraphs, orders for the provision of particulars under r 16.45 of the Rules for the paragraphs set out in the respondents' solicitors' letter to the applicant's solicitors dated 24 June 2025; and

(e) Costs.

1. In submissions on the strike-out application, detailed complaints were made about only some of the paragraphs mentioned in the amended interlocutory application. It appears that the respondents were seeking to strike out the whole of FASOC [8]-[18] (with no leave to re-plead) and [67]-[83] as a further alternative to summary judgment, as well as raising more specific problems with a subset of these paragraphs (which, in themselves, might be remedied by re-pleading). Additionally, no submissions were advanced in relation to 2FASOC [38] or [51].

1. A large body of authority affirms that the powers in r 26.01 and s 31A must be exercised with caution (see eg Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at [24] (French CJ and Gummow J), [60] (Hayne, Crennan, Kiefel and Bell JJ) (Spencer)). To give judgment against a party without a trial is a large step which (apart from cases involving default or want of prosecution) is warranted only if the Court is satisfied that the expense of a trial is unjustifiable because the party has no prospect (or "no reasonable prospect" under s 31A) of succeeding at trial (see eg Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 602 (Mason CJ, Deane and Dawson JJ)) (Webster). While a need to undertake complicated legal analysis before it can be concluded that there is no prospect of success is not itself a barrier to summary judgment (see British American Tobacco Ltd v Western Australia [2003] HCA 47; 217 CLR 30 at [103] (Kirby J); Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60; 167 FCR 372 at [131] (Gordon J) (Jefferson Ford) (citing General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130 (Barwick CJ))), a conclusion at that level of definitiveness is necessary.
2. Senior counsel for the respondents described the summary judgment and separate question prayers in the amended interlocutory application as proceeding on "effectively a demurrer basis"; that is, rather than proceeding on evidence, they take the facts pleaded in Parts A and E of the 2FASOC at their highest and contend that these facts do not give rise to the asserted causes of action (as to the use of separate questions for this purpose see Director of Public Prosecutions (Cth) v JM [2013] HCA 30; 250 CLR 135 at [32] (French CJ, Hayne, Crennan, Kiefel, Bell, Gageler and Keane JJ) and Yunupingu on behalf of the Gumatj Clan or Estate Group v Commonwealth [2023] FCAFC 75; 298 FCR 160 at [10]- [19] (Mortimer CJ, Moshinsky and Banks-Smith JJ)).
3. If an argument along these lines is made out in relation to the whole or part of an applicant's claims, it is difficult to envisage circumstances in which those claims or that part of them would not be dismissed (or a separate question would not be stated and answered appropriately so as to limit the issues that would go to trial). That is because a necessary consequence of acceptance of such an argument is that these claims will not succeed, the effort of establishing the relevant facts would be wasted, and their further agitation would be an abuse of process.
4. However, there is an anterior discretionary question whether the court should embark on the attempt to resolve what may be complicated questions of law in the absence of evidence. The applicant advanced four submissions as to why this course should not be taken. It is convenient to address the question by reference to these submissions.
5. First, it is submitted that the allegations in Parts A and E of the 2FASOC are also relevant to the claims for declaratory relief in prayers 1 and 3 of the FAOA. Establishing that the facts pleaded in these parts of the 2FASOC do not give rise to causes of action in tort would not answer questions as to whether the respondents or their officers were subject to duties under ss 198AD and 65 of the Act and whether these duties were complied with. To a large extent, therefore, the facts pleaded in these parts of the 2FASOC would remain in issue because they are relevant to the claims for declaratory relief. While it may well be (as senior counsel for the respondents submitted) that the applicant would face significant difficulties in establishing the utility of the proposed declarations if they were not connected with any other prayer for relief, that is not a point raised by the amended interlocutory application; and whether the declarations should be made or not would ordinarily be determined in the light of the facts as they appeared after a full hearing. In the course of his submissions in reply, senior counsel made an oral application to amend the interlocutory application further so as to seek the dismissal of prayers 1 and 3 of the FAOA. The application was opposed. I refused it, in the light of the very late stage at which it was raised, the lack of any clear reason why no attack on the proposed declarations had not been raised earlier, and the further issues that it would require to be considered.
6. Additionally, the amended interlocutory application does not seek to dismiss the false imprisonment claims pleaded in Parts B and C of the 2FASOC. These claims arise out of the same ten year history of decision-making in connection with the applicant as do the claims for breach of statutory duty, and they too are factually intense. The history of the applicant's experiences while detained, which is relied on to establish loss and as allegedly aggravating conduct, is relied on in Part B as well as in the Parts to which the respondents seek to demur. It thus appears that, even if it could be assumed that success of the demurrer would cause the claims for declaratory relief to fall away, such success would have a modest impact at best on the length of the trial and the evidence required to be canvassed.
7. Secondly, it is submitted that the breach of statutory duty claims are in some ways novel and are not resolved by existing authority. This can be accepted, at least in the sense that there is no case directly deciding whether s 198AD or 65 of the Act imposes duties for the benefit of a class of persons with the intention that those persons would be entitled to damages in the event of breach. Nor is that question susceptible to a confident answer without fairly detailed analysis. What follows is that an attempt to decide the issue as a threshold question would give rise to a very substantial likelihood of an appeal which would bifurcate, and further prolong, the proceeding. The risk of bifurcation is not necessarily something to be feared if deciding a threshold question in a particular way would shorten the trial substantially or render a trial on the facts unnecessary. However, as indicated above, I am not persuaded that the orders sought in the amended interlocutory application would have this effect.
8. Thirdly, it is submitted that the breach of statutory duty allegations are not ripe for determination prior to trial. I do not accept this submission. Both the prayers seeking summary dismissal and the proposed separate questions proceed by reference to the facts pleaded by the applicant and assume that these facts will be made out. The question whether the pleaded facts are sufficient to make out a cause of action is not one whose resolution requires evidence or detailed agreed facts. There remains a possibility that intense scrutiny might reveal a flaw in the applicant's pleading (eg some necessary fact not pleaded) and the interlocutory application might therefore succeed without resolving the important questions of statutory construction that it seeks to resolve. However, that is a problem the applicant would need to address, and not in itself a reason to dismiss this aspect of the amended interlocutory application.
9. Fourthly, the aspects of the applicant's claims which the respondents now seek to dismiss were articulated in essentially the same terms in the FASOC, whose filing was consented to by the applicants on 23 May 2025 and reflected in the orders made on 26 May 2025. This was after timetabling orders had been made providing for an application for leave to file the FASOC and for the respondents either to file submissions in opposition to it or indicate their consent (and, in the event of consent, to file a defence by 25 June 2025). While there had been earlier correspondence in which the respondents' solicitors drew attention to what they perceived to be problems in the applicant's pleading, the consent to the filing of the FASOC did not purport to reserve any position in relation to its contents. By objecting to aspects of the 2FASOC which were part of the FASOC (and indeed appeared in similar terms in even earlier iterations of the statement of claim), the respondents are in substance attempting to grant themselves an extension of time to raise complaints that should have been raised some months ago. This consideration might not carry very much weight in isolation, but does provide some further support to the applicant's position.
10. For these reasons, the amended interlocutory application should be dismissed in so far as it seeks summary dismissal of the claims of breach of statutory duty or an equivalent result by way of separate questions. For the same reasons, I will not strike out the whole of Part A or Part C of the 2FASOC. It is preferable not to say anything at this stage concerning the substantive merits of these claims.

1. 2FASOC [16] has been set out above. It is evidently intended to plead causation of loss arising from the alleged breach of the statutory duty to take the applicant to a RPC. Causation may be a complex issue because the failure to take the applicant to a RPC persisted over a long period. There may be disputes concerning when the applicant would have been taken to a RPC if the respondents had been attempting to bring about that result, which country he would have been taken to, and what difference that would have made to the mental health issues identified in 2FASOC [16].
2. The paragraph is deficient in that it does not articulate the causal link between the failure to perform the duty and the problems that the applicant has suffered. It may well be that he is alleged to have become ill as a consequence of being held in detention over a long period and the conditions in which he was detained. However, if that is the case, it is necessary to give some indication of how that connects with the breach of duty that is alleged: in particular, what would have been different (and why it is contended that he would not have suffered some or all of these problems) if the duty to take him to a RPC had been carried out. As noted in the previous paragraph, questions of timing need to be grappled with. Further, "including" is a problematic term in a paragraph of this kind. At the moment, the respondents are somewhat in the dark as to the nature and extent of the damage that is being alleged. Finally, the particulars to FASOC [16] refer in general terms to "distress, hurt, anxiety and humiliation" and are therefore wider than the terms of the paragraph itself. FASOC [16] should be struck out and repleaded.
3. FASOC [17] pleads a number of allegations in a conclusory way, without any specificity concerning where or when (for example) the applicant had to contend with rodents or was woken by guards. While this is unsatisfactory, I accept that the applicant probably does not remember these details and is unlikely to have been keeping detailed records. This suggests that the applicant will have real difficulty in proving these allegations unless he is able to obtain relevant documentary records from the respondents (or third parties) through discovery, notices to produce or subpoenas. Those processes ought to bring more specificity to the allegations (or result in them being abandoned), and the Court will expect the parties to work sensibly towards defining specific allegations that can be properly tested. However, I do not think that the applicant can realistically be expected to provide more detail at this stage.
4. 2FASOC [17] and [18] also use the problematic term "including". This results in pleadings which are embarrassing. The respondents can only be expected to admit or deny allegations that are squarely put. They cannot be expected to plead to an allegation which is expressed so that it might or might not be broader than what is expressly set out. If further matters come to light, the applicant can seek to amend his pleading to include them. To frame an allegation in such a way that the case can expand without amendment is not a proper approach to pleading. The word "including" should be struck out where it appears in these paragraphs, with leave to substitute different language to the extent necessary for the paragraphs to make sense.
5. There is a further difficulty with 2FASOC [18]. The body of [18] and the first paragraph of its lengthy particulars are as follows.

The Respondents' conduct directly or through officers as alleged at [14] and [17] above in respect of the regional processing taking duty involved conscious wrongdoing and contumelious disregard of the Applicant's rights, and the rights of others similarly situated, including the right not to be subjected to arbitrary detention, and the right to be treated with humanity and with respect for the inherent dignity of the human person.

Particulars

The Applicant refers to and repeats the subparagraphs of the previous paragraph. He also refers to and relies on common law rights, as well as the International Covenant on Civil and Political Rights (1966), articles 9(1) and 10(1).

1. Conscious wrongdoing in contumelious disregard of the claimant's rights is a recognised basis on which exemplary damages can be claimed (see eg South Australia v Holder [2019] SASFC 135 at [25] (Kelly J, Kourakis CJ and Stanley J agreeing)). However, the relevant "rights" for this purpose are rights infringed or wronged against by the breach of duty that has been proven; not "unrelated outrageous conduct" (Fatimi Pty Ltd v Bryant [2004] NSWCA 140; 59 NSWLR 678 at [77]- [78] (Giles JA, Handley and McColl JJA agreeing). Infringement of one or more of the rights mentioned in 2FASOC [18] might or might not sound in damages in its own right (although the global reference to "common law rights" is unhelpful), but that needs to be pleaded and established. I do not accept that infringement or disregard of those other rights (and the rights of other persons) - even to the extent that the domestic law of Australia provides for their enforcement - can be brought to account in assessing damages for breach of a statutory duty to take the applicant to a RPC.
2. 2FASOC [18] should therefore be struck out. I will allow it to be re-pleaded, noting the possibility (inherent in the use of the word "including") the applicant wishes to rely on an allegation of contumelious disregard of some right that has been infringed by the alleged breach of duty.

1. These paragraphs comprise part of Part B of the 2FASOC, which plead that the applicant was unlawfully detained because (in short) he was being detained for the purpose of being taken to a RPC but there was no realistic prospect of this becoming practicable in the reasonably foreseeable future. I infer that this part of the case is based on the reasoning in NZYQ.
2. 2FASOC [20], read with [21] sets out why it is contended that there was no realistic prospect of being able to take the applicant to a RPC. (I observe at this point that the purpose of 2FASOC [19A] is presently unclear. It seems to plead a historical fact - that no person was taken from Australia to Nauru pursuant to s 198AD between 3 August 2014 to 27 October 2021 - but does not indicate how that historical fact contributes to the alleged unlawfulness of the applicant's detention.) 2FASOC [20] lists five factors, which are (in short):

(i) taking the applicant to either of the available RPCs would have been a breach of Australia's non-refoulement obligations by reason of conditions in those countries;

(ii) as to Nauru, a lack of capacity or willingness to accept asylum seekers from Australia (including the applicant) after 3 August 2014;

(iii) also as to Nauru, a lack of appropriate accommodation in that country after 3 August 2014;

(iv) also as to Nauru, the applicant being subject from 7 July 2017 to a qualified security assessment (with the consequence that Nauru would not accept him); and

(v) neither RPC would have accepted the applicant for transfer because he lacked the capacity to consent or cooperate and would not pass a pre-transfer health check.

1. The respondents make several criticisms of this pleading.
2. First, citing NATB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 292; 133 FCR 506 at [47], [52]-[53] (Wilcox, Lindgren and Bennett JJ) and ASF17 v Commonwealth [2024] FCA 7; 300 FCR 530 at [53] (Colvin J), it is submitted that the practicability of removing a person from Australia depends on whether removal to another country can be achieved and is not affected by the conditions the person will encounter after being permitted to enter another country. This point is well established in relation to s 198 of the Act and there does not appear to be any reason why it would not also apply to the relevantly identical language of s 198AD.
3. However, this is not necessarily the end of the matter so far as 2FASOC [20(i)] (non-refoulement obligations) is concerned. In Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [200] (Lander and Gordon JJ, Besanko, Flick and Jagot JJ agreeing), it was held that the power of removal in s 198 could not lawfully be exercised while a person in detention had made claims for protection (invoking Australia's non-refoulement obligations) and such claims had not been assessed according to law. The effect of that holding was reversed by the insertion of s 197C (by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth)) with effect from 16 December 2014; however, s 197C is directed only at removal under s 198 and not at taking under s 198AD. At least as presently instructed, therefore, I do not think it is certain that an application to restrain the taking of a person to a RPC, on the ground that that taking would infringe non-refoulement obligations, would have been unsuccessful. Resolution of the issue would require more detailed submissions than I have so far received about the relevant provisions of the Act as they stood at various times between 2014 and 2021 and the authorities considering these provisions.
4. Nor is the point that conditions in a destination country are generally irrelevant to the practicability of removal necessarily the end of the matter in relation to 2FASOC [20(ii)] or [20(iii)]. These factors could potentially have contributed to Nauru being unwilling to accept the transfer of asylum seekers from Australia.
5. Secondly, it is submitted (referring to the cases cited in AZC20 FC2 at [90]-[101]), that assessment of whether removal is reasonably practicable is a matter for removing officers and not the Court. This, with respect, is not clearly right as a general proposition. True it is that the applications for orders restraining removal under s 198 on the ground that such removal is not "reasonably practicable" have consistently failed, and the Court has sometimes observed that practicability in this context is a matter for the removing officer to assess. In AZC20 FC2 at [95] I suggested that a better understanding may be that the phrase "as soon as reasonably practicable" is there to require intensity of effort rather than to restrain the power to remove.
6. Be that as it may, however, it is clear from NZYQ at [60]-[70] that, where the lawfulness of detention purportedly effected under ss 189 and 196 of the Act is in issue, the question whether there is a realistic prospect of the removal of a detainee becoming practicable is one that the Court has to decide on the basis of evidence or agreed facts. In this context, the statutory language of s 198 (or s 198AD) is not being applied and there is no removal decision sought to be set aside; rather, the issue is whether continued detention infringes a constitutional limit.
7. Thirdly, the respondents complain that the pleas in 2FASOC [20] are made in conclusory terms and do not plead the material facts underpinning them. For example, [20(i)] does not identify who were the persons who would harm the applicant; [20(ii)] does not specify the basis for asserting that Nauru lacked "capacity", "facilities", etc, and [20(iii)] reverts to the unsatisfactory term "including".
8. These particular examples (other than the "including" issue) do not in themselves point to reasons why any part of 2FASOC [20] should be struck out. The applicant will at some stage have to put on the evidence that he claims establishes the allegations in 2FASOC [20] and the respondents will then be in a position to know what his case is. It is far from obvious that the respondents would be burdened by excessively onerous applications for discovery in this respect, since for the most part these are allegations about circumstances in another country (not, for example, about the respondents' knowledge of or responses to those circumstances).
9. The broader point that the respondents make - that aspects of 2FASOC [20] are conclusory in nature and insufficiently detailed - is, however, significant in the light of the discussion above concerning the respondents' first complaint. While it is possible to envisage ways in which conditions in PNG or Nauru might have had a bearing on the practicability at various times of taking the applicant to one or other of those countries, 2FASOC [20] does not attempt to explain how they are said to have affected that issue. I do not consider that the respondents can be required to plead to the propositions in sub-paras (i), (ii) and (iii) of 2FASOC [20], or embark on the significant evidentiary exercise that they will require, in the absence of some articulation of how they are alleged to have affected the practicability (as distinct from morality or desirability) of taking the applicant to a RPC or the prospects of that taking becoming practicable. These subparagraphs should therefore be struck out, with leave to the applicant to reformulate them.
10. 2FASOC [23] has the same problems as 2FASOC [16], discussed above, and should be dealt with in the same way.
11. 2FASOC [24] expressly adopts parts of 2FASOC [17], discussed above, and poses the same challenges. The word "including" should be struck out.

1. Aside from their global attack on the claim for damages for an asserted breach of the duty imposed by s 65, the respondents raise two issues.
2. First, the time that elapsed after the decision of the Minister's delegate (9 May 2018), until the (second) decision of the IAA (12 February 2021) is said in substance to be irrelevant, on the footing that the duty of the Minister to make a decision under s 65 came to an end when the delegate made a decision. To the extent that the IAA was subject to an equivalent duty, it arose by operation of other provisions that are not pleaded. This argument has some force, but it is not a complete answer to the applicant's allegations. It is preferable to deal with it on a final basis in the light of findings based on evidence. Similarly, the respondents accept that the Minister was required to make a decision within a reasonable time but reject the applicant's use of the phrase "as soon as reasonably practicable" in this context. I infer that the terminology used by the applicant may involve application of the reasoning in Plaintiff S4/2014 v Minister for Immigration and Border Protection [2014] HCA 34; 258 CLR 219 at [32]- [35] (French CJ, Hayne, Crennan, Kiefel and Keane JJ). To the extent that the correct understanding of the Minister's duty is in issue, the issue is appropriate for final argument and should not be sought to be dealt with on a strike-out application.
3. Secondly, the pleadings in relation to causation and aggravated damages (2FASOC [82]-[83]) are said to raise the same issues as 2FASOC [16] and [17] (discussed above).
4. 2FASOC [82] raises similar issues to 2FASOC [16], although their factual underpinnings are different. It is fairly clearly implicit in 2FASOC [82] that the applicant is alleging that he was detained for the whole of the visa processing period and this caused him loss and damage. This seems necessarily to entail a proposition that he would not have been so detained if a decision on his visa application had not been delayed. However, why that is said to be the case should be explained in the pleading as it may shape the discovery and evidence that will be required. If the applicant's case theory is that he would have been granted a visa and therefore released, that might be met by the respondents in a particular way. If his theory is that he would have ceased to be detained regardless of the outcome of the visa application, that might be met in a different way. The case that is advanced may affect the time when he would have been released. It is part of the proper role of a pleading to explain this sort of thing. Further and in any event, 2FASOC [82] is rendered indefinite almost to the point of being meaningless because loss and damage is said to have arisen "including" because the applicant was detained (with no hint as to what the other factors leading to loss and damage might be). 2FASOC [82] should be struck out with leave to replead.
5. 2FASOC [83], like 2FASOC [24], adopts 2FASOC [17]. Aside from deleting the word "including", it should be allowed to stand for the reasons set out above in relation to 2FASOC [17].

1. The amended interlocutory application will be dismissed in so far as it seeks summary judgment, the stating and answering of separate questions, and the strike out of paragraphs of the FASOC other than those mentioned in the next paragraph.
2. The following aspects of the 2FASOC will be struck out:

(a) [16] and [18];

(b) [20(i)], [20(ii)], [20(iii)] and [23];

(c) [82];

(d) the word "including" where it appears in [17], [24] and [83].

1. The parties will be ordered to provide agreed or competing short minutes of order providing a timetable for:

(a) the applicant, if so advised, to file a further amended pleading addressing the defects identified in these reasons; and

(b) further steps in the proceeding up to the close of pleadings.

1. The costs of the respondents' amended interlocutory application will be reserved, as the question what order should be made may yet depend on what follows from the further steps envisaged in my orders.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kennett.