BNL20 v Minister for Home Affairs

Federal Court of Australia|2020-08-10|Before: Mr P, Murphy J

Introduction 1 The applicant is a citizen of Pakistan who is detained in immigration detention at the Melbourne Immigration Transit Accommodation centre (MITA). On 8 April 2020, the applicant filed an originating application and statement of claim which alleges that the respondents, the Minister for Home Affairs (Minister), the Secretary of the Department of Home Affairs and the Commonwealth of Australia, have been and are presently in breach of the duty to exercise reasonable care in all the circumstances to avoid foreseeable harm to his health and safety while he is detained at MITA, arising from the risk that he may contract COVID-19. 2 COVID-19 is the illness caused by a novel Coronavirus, SARS-CoV-2, which emerged in China in late 2019. Due to its novelty, humans have no pre-existing immunity to the virus and that, coupled with the high rate of infectiousness, has led to a devastating global pandemic which is unprecedented in its rate and scale of infection in our lifetimes. While some who contract the virus remain asymptomatic and the great majority do not suffer major effects, many develop serious and debilitating medical conditions and a concerning number of those people die from the illness. As at 14 July 2020, Johns Hopkins University reports that over thirteen million individuals have been diagnosed with COVID-19 globally, and over five hundred and seventy thousand people have died as a consequence. 3 The originating application seeks final injunctions to restrain the respondents from continuing to breach the duty to exercise reasonable care, being orders to restrain the commission of the tort of negligence by altering the conditions under which he is detained at MITA, all alterations being aimed at reducing the risk of his contracting COVID-19. By an amended interlocutory application dated 28 July 2020 the applicant seeks an order to require the respondents to cease to detain him at MITA, until further order. 4 The interlocutory application does not seek orders for the applicant to be released from detention. Section 189 of the Migration Act 1958 (Cth) (the Act) provides that a person reasonably suspected of being an unlawful non-citizen must be detained, and s 196(1) of the Act requires that such detention must continue until the occurrence of one of the four terminating events: removal from Australia under ss 198 or 199; an officer beginning the process under s 198AD(3) for removal to a regional processing country; deportation under s 200; or the grant of a visa. Rather, the applicant contends that because of the real risk that SARS-CoV-2 will enter MITA and rapidly disseminate amongst detainees, and taking account of his age, gender and medical conditions which predispose him to suffering seriously adverse health consequences if he contracts COVID-19 including a real risk that he will die, he should be detained by the Commonwealth in some other place or manner where the risk is substantially obviated. 5 The applicant is a 68 year old man with type-2 diabetes and high cholesterol amongst other medical conditions. The evidence shows that: (a) due to widespread community transmission of SARS-CoV-2 in Victoria a "state of disaster" under s 23 of the Emergency Management Act 1986 (Vic) was declared on 2 August 2020, leading to the imposition of extraordinary Stage 4 restrictions in Greater Metropolitan Melbourne . The restrictions include unprecedented limitations on attending places of employment and the reasons and times that any person in Greater Metropolitan Melbourne is allowed to leave their home, described as "stay at home" orders, including directions to maintain 'social distancing' and wear face masks when they are outside their home (Stage 4 restrictions); (b) the rate of infection and community transmission of the virus within Victoria varies by geographic region and in metropolitan Melbourne certain "hot spots" have been identified, being areas in which high rates of infection and community transmission of COVID-19 are occurring (hot spot). MITA is located within a hot spot; (c) correctional and detention facilities like MITA, where people are housed in close proximity, are higher risk environments for outbreaks. If a person with COVID-19 enters such a facility, there is increased risk of significant transmission and infection. (d) In a facility the size of MITA many guards and other staff must enter the facility from a community in which the rate of community transmission is presently high; and (e) if a person contracts COVID-19: (i) older age is associated with a worse prognosis, with those over 65 at substantially higher risk than younger individuals; (ii) men are approximately 1.6 times more likely to develop severe disease and/or die from COVID-19 than women of the same age; (iii) individuals with diabetes have a mortality from COVID-19 almost 3 times higher than the general population; 6 The applicant adduced evidence from two specialist infectious diseases physicians to the effect that the high rate of community transmission in Victoria, the location of MITA within a hot spot for transmission, together with the number of detention centre staff and others moving between the community and MITA, means that it is "inevitable", or "essentially inevitable" or a "near certainty" that SARS-CoV-2 will enter MITA imminently. They said that once the virus enters the facility the applicant has an "extremely high" risk of contracting COVID-19, stating that very high rates of acquisition of COVID-19 are now well documented in a variety of settings around the world where people are housed in close proximity including correctional facilities, detention centres, residential aged care homes and cruise ships. On top of that, they pointed to a failure of physical distancing recommendations at MITA and that face masks cannot be used in the communal dining room at MITA during mealtimes, even if face masks were supplied to detainees. They said that, as a 68 year old diabetic male, if the applicant contracts COVID-19 he is "at very high risk for severe disease and death." They note that up to one third of all hospitalised patients with COVID-19 are diabetic. They conservatively estimated that if he contracts COVID-19 he would face at least a 15% risk of death even if he received the highest quality medical care once infected, including rapid access to ICU facilities. 7 I was satisfied on the evidence that the applicant made out a prima facie case that the Commonwealth is presently in breach of its duty of care to the applicant, and that the balance of convenience favours injunctive relief to restrain that continuing breach. I therefore ordered that, until further order, as soon as reasonably practicable but in any event by no later than 1.00 pm on 13 August 2020, the respondents cease to detain the applicant at MITA. 8 It is clear enough from the applicant's submissions that his preferred outcome is that the Minister grant him a visa under s 195A of the Act and, if not, make a residence determination under s 197AB, either of which would permit him to live in the community in Victoria. But those powers of the Minister are personal and non-compellable. The applicant accepts that it is a matter for the respondents to determine the steps they take to ensure that his continuing detention is compliant with the duty to exercise reasonable care in all the circumstances for his health and safety.

Jurisdiction 9 The applicant seeks injunctive relief to restrain the respondents from committing the tort of negligence. It is uncontentious that in the circumstances of the present case the Court has jurisdiction respect of the applicant's private law claim. The Court has original jurisdiction under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) to hear and determine a claim in common law arising from detention under the Act: Fernando v Minister for Immigration and Citizenship [2007] FCA 1203; (2007) 165 FCR 471 at [22] (Siopis J); Plaintiff S99 v Minister for Immigration and Border Protection [2016] FCA 483; (2016) 243 FCR 17 (Plaintiff S99) at [409]-[459] (Bromberg J).

The evidence 10 The affidavit material for the application, which was brought on an urgent basis, is voluminous and it is not necessary to refer to all of it. 11 The applicant relies on numerous affidavits made by his solicitor Sanmati Verma, a lawyer in the employ of Clothier Anderson, to which are annexed the materials that the applicant relies upon including expert medical opinions obtained by the applicant's lawyers, an affidavit of the applicant, and some of the guidelines and procedures relied upon by the respondents to show the steps taken to prevent SARS-CoV-2 entering immigration detention centres and to contain transmission of the virus should it do so. In particular, the applicant relies upon: (a) a joint expert report dated 20 July 2020 by Associate Professor Anne Mijch OAM, an Adjunct Associate Professor of Medicine at Monash University, Melbourne and Infectious Diseases Physician, and Associate Professor Catherine Cherry, an Infectious Diseases Physician at the Alfred Hospital, Melbourne (First Mijch and Cherry report), which refers to and adopts two earlier reports of Associate Professor Cherry dated 7 April 2020 (First Cherry report) and 13 April 2020 (Second Cherry report); (b) a supplementary expert report by Associate Professors Mijch and Cherry dated 5 August 2020 (Second Mijch and Cherry report); (c) an expert report dated 8 April 2020 prepared for another proceeding by Professor Joshua Davis, a Senior Staff Specialist in Infectious Diseases at John Hunter Hospital, Newcastle, and a senior principal research fellow and professor at the Menzies School of Health Research in Darwin (Davis report); (d) the applicant's affidavit made 22 July 2020 which annexes his earlier statement dated 8 April 2020; (e) the declaration of a state of disaster in Victoria in relation to the spread of COVID-19, pursuant to s 23 of the Emergency Management Act 1986 (Vic), made by the Premier of the State of Victoria, the Hon Daniel Andrews MP, on 2 August 2020 ; (f) published information about the number of cases of COVID-19 in Victoria, with specific reference to the Melbourne metropolitan area adjacent and nearby to MITA and to the number of cases of "community transmissions"; (g) information published by the Victorian Government contained in annexures PG8-PG10 of the affidavit of Prabodh Chander Gogna, Chief Medical Officer and Surgeon General of the Australian Border Force, made 29 July 2020 and filed on behalf of the respondents; (h) information in the affidavit of Claire Rees made 30 July 2020 and its annexures filed on behalf of the respondents; and (i) the report of Robert Cornall AO, the Independent Reviewer of Adverse Security Assessments, dated 18 June 2020, in relation to the applicant. 12 The respondents rely upon: (a) the expert reports of Professor Miles Beaman, a Clinical Microbiologist and Infectious Diseases Physician at Pathwest Nedlands, Western Australia dated 28 April 2020, 30 April 2020 and 26 July 2020 (respectively, the First, Second and Third Beaman reports); (b) affidavits of Jonathan Papalia, the lawyer with the Australian Government Solicitor with carriage of the proceeding on behalf of the respondents, two made on 9 April 2020, and another made 6 August 2020, and their annexures; (c) affidavits of John David Brown, the senior lawyer with the Australian Government Solicitor with the supervision of the proceeding on behalf of the respondents, made 27 May 2020 and 29 July 2020 and their annexures; (d) an affidavit of Kaylene Zakharoff, Group Manager, Immigration Detention Group with the Australian Border Force, Department of Home Affairs, made 28 May 2020 and its annexures; (e) affidavits of Prabodh Chander Gogna made 28 May 2020 and 29 July 2020 and their annexures; (f) affidavits of Claire Rees, Acting Group Manager of the Immigration Detention Group within the Australian Border Force with responsibility for the operation of Australia's immigration detention facilities, made 28 May 2020, 30 July 2020 and 7 August 2020 and their annexures.

The relevant principles for interlocutory relief 13 To be granted the interlocutory orders he seeks, as a starting point, the applicant must identify the legal or equitable rights which he seeks to have determined at the trial and in respect of which final relief is sought. Here, the final relief that the applicant seeks is orders to restrain the respondents from continuing to act in breach of their common law duty to exercise reasonable care to avoid foreseeable harm to his health and safety arising from the risk that he may contract COVID-19 while detained in MITA. Having identified such rights, the applicant must establish that: (a) there is a prima facie case or a serious question to be tried, in the sense that if the evidence remains as it is at trial, there is a probability that the applicant will be held entitled to the relief sought; and (b) the balance of convenience favours the granting of the injunction. The question is whether the inconvenience or injury which the applicant will be likely to suffer if an injunction were refused outweighs or is outweighed by the inconvenience or injury which the respondents would suffer if an injunction were granted. This enquiry includes consideration of whether damages or other remedies would be an adequate remedy in the circumstances. 14 The two issues are interdependent. If the balance of convenience favours a respondent, an applicant will need to establish a stronger prima facie case to support an interlocutory injunction. Conversely, where the balance of convenience favours an applicant, then the strength of the prima facie case required to support the grant of an injunction diminishes: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57; (O'Neill) at [19] (Gleeson CJ and Crennan J) and [65]-[72] (Gummow and Hayne JJ); Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 at 622-623 (Kitto, Taylor, Menzies and Owen JJ). 15 In cases like the present case, in which the grant or refusal of an interlocutory injunction may in a practical sense determine the substance of the matter in issue on a final basis, the Court should give particular attention to the strength of the applicant's case for final relief: O'Neill at [72]; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) [2009] FCA 17; (2009) 253 ALR 324 at [27]-[28] (Foster J), citing Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 536A-D (McLelland J).

The respondents' submissions 16 For the purposes of the interlocutory application only, the respondents accept that: (a) the Commonwealth owes a duty of care to persons kept in immigration detention, including the applicant; and (b) it is arguable that the Court has power in an appropriate case to restrain the respondents from causing a person's immigration detention to continue at a place or in a form that constitutes a continuing tort, citing Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; (2004) 207 ALR 83 (Mastipour) at [127]-[129] and [137] (Finn, Selway and Lander JJ); and MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694; (2012) 292 ALR 659 (MZYYR) at [20] and [55] (Gordon J). 17 The respondents accept that the duty of the Commonwealth to persons held in immigration detention is one which requires the exercise of such care for the applicant's health and safety as is reasonable in the circumstances, citing: AS v Minister for Immigration and Border Protection [2014] VSC 593 at [24] (Kaye J); S v Secretary, Department of Immigration, Multicultural and Indigenous Affairs [2005] FCA 549; (2005) 143 FCR 217 (S v Secretary) at [220] (Finn J); and Plaintiff S99 at [255]. 18 The respondents argue, however, that there is no evidence that the respondents, or more accurately the Commonwealth, have breached the duty of care owed to the applicant, even on an arguable basis. They do so on a number of bases. 19 The respondents submit that the applicant's evidence does not articulate why the acts of the Commonwealth are said to be unreasonable. They contend that the applicant's expert evidence is to the effect that the entry of SARS-CoV-2 into MITA is inevitable: First Cherry and Mijch report at p. 251. They note that the applicant's experts go so far as to doubt whether even the Stage 4 restrictions recently imposed through much of Victoria will alter the incidence of COVID-19 within Victoria. The respondents contend that the corollary of this evidence (which they do not accept) is that there is nothing they can do, let alone reasonably do, to prevent the entry of SARS-CoV-2 into MITA. Moreover, they submit that the applicant's evidence that the virus will inevitably enter all immigration detention centres casts doubt on the utility of the relief the applicant seeks. 20 They argue that the applicant's evidence does not criticise any of the measures put in place by the respondents to minimise the risk of COVID-19 infection in MITA or immigration detention centres more generally, noting that Associate Professors Cherry and Mijch described the steps taken as "laudable attempts". They contend that the Commonwealth's duty is to take reasonable care to avoid the risk of harm to the applicant's health and safety, which is not a duty to ensure absolute safety. If there is nothing more the respondents can reasonably do to avoid the risk of the applicant suffering harm through contracting COVID-19 in MITA, they say no breach of duty arises. The respondents argue that the construction of the applicant's argument approaches the tort of negligence on the basis that it is a form of strict liability. 21 In contrast, the respondents submit that their evidence sets out in detail the steps they have reasonably taken to give effect to the duty of care to avoid exposing the applicant to foreseeable harm. They contend that the evidence shows that the Department of Home Affairs (the Department) has been responsive to the applicant's concerns and has taken reasonable steps to accommodate them within the context of the Department's resource constraints and operational needs. They submit that the applicant has been, at his request, provided with his own room with an annexed bathroom and with a personal supply of cleaning products suitable for disinfection of his room. It is a small point, but in my view those accommodations flowed from the intervention of the Court at a case management hearing. 22 The applicant is detained in the Bass 1 compound at MITA, and the respondents rely on evidence to the effect that: (a) the compound is cleaned twice daily, with a particular focus on cleaning surfaces that are touched with high frequency (e.g. door handles) and areas accessed by persons outside the compound; (b) hand sanitiser is available at locations throughout the compound, including in the kitchenette, at the entry to the mess and inside the gymnasium; (c) to promote social distancing and limit the number of detainees in the mess during mealtimes, detainees have been given permission to eat their meals in the outdoor area or the common area; (d) signage and markings have been introduced in the common areas to indicate appropriate measures of social distance; (e) staff practice social distancing and encourage detainees to maintain social distancing, including by encouraging only two persons to sit at a table during meal times; and (f) International Health Management Services (IHMS), the Department's long-term external health services provider, has conducted a risk assessment to identify which of the detainees are potentially at greater risk should they contract COVID-19. 23 The respondents submit that, at a systemic level, the Department and its service providers, Serco Asia Pacific (Serco) which is contracted to operate the detention centres, and IHMS, have detailed operational plans in place to reduce the risk of SARS-CoV-2 entering immigration detention centres and to contain the spread of COVID-19 should an outbreak occur. The Department has issued operational directives including to require that: (a) all persons entering an immigration detention centre, including an Alternative Place of Detention as declared by the Minister, be subject to temperature checks; and (b) all new detainees be placed in quarantine for 14 days upon arrival. 24 It is uncontroversial that these operational plans were developed by reference to and are consistent with national guidelines issued by the Communicable Diseases Network Australia for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia (CDNA Guidelines), which are regularly updated. The plans are regularly reviewed by Mr Gogna, the Department's Chief Medical Officer to account for any updates to the CDNA Guidelines. 25 Ms Rees' evidence includes matters going to the incidence of COVID-19 in the detention centre network. She said that: (a) on 11 July 2020 an MSS security officer, subcontracted by Serco to provide static guard services at the Mantra City Bell Apartments in Melbourne, which is an Alternative Place of Detention approved by the Minister, had tested positive for COVID-19. The incident was investigated, and based on the investigation's findings it was concluded that it was more likely that the security guard's exposure occurred outside the immigration detention network. The security guard did not attend work in the time period he was considered to be infectious, and based on his account of all contacts he had when he was at work, the Victorian Public Health Unit concluded that there was no close contact between the security guard and other staff or detainees when he was at work; (b) on 17 July 2020 a prisoner who was in protective quarantine at the Metropolitan Remand Centre in Ravenhall, Victoria tested positive for COVID-19. Corrections Victoria placed that prisoner in isolation. An investigation showed that no detainees had been transferred from the Melbourne Assessment Prison, Metropolitan Remand Centre or Melbourne Magistrates' Court during the relevant time frame. There was a transfer from the Melbourne Assessment Prison to MITA on 12 July 2020 and, consistent with current procedure for new arrivals, he was placed into precautionary 14 day quarantine. As at 30 July 2020, that detainee remained asymptomatic; (c) on 21 July 2020 Corrections Victoria advised the Department that a person transferred to MITA from the Ravenhall Correctional Centre on 15 July 2020, may have had contact with a prison officer at that facility who had since tested positive for COVID-19. The detainee had been placed into precautionary 14 day quarantine at Dargo Compound in MITA. Upon notification regarding the positive test, the detainee was moved to High Care Accommodation (isolation) in Shaw Compound. The detainee has been tested for COVID-19 on several occasions and has returned negative test results; (d) on 22 July 2020, Corrections Victoria issued a media release indicating that an asymptomatic prisoner, who was in protective quarantine at the Metropolitan Remand Centre, had returned a positive result for COVID-19. Three detainees had been transferred to MITA from Corrections Victoria on 22 July 2020, two from Ravenhall and the other from the Metropolitan Assessment Prison. Based on advice from the Victorian Public Health Unit, the Department treated all detainees from those places as "close contacts" with persons who might have been infected with COVID-19. Although the Victorian Public Health Unit did not require that they receive an immediate COVID-19 test, they were offered a test on arrival and were to be tested again on day 11 of the 14 day quarantine period. All of those detainees remained asymptomatic as at 30 July 2020 and returned negative test results from their first test; and (e) as at 30 July 2020, there were no confirmed cases of COVID-19 within the detainee population in the immigration detention network, including MITA, nor have there been at any time since SARS-CoV-2 was first found to exist in Australia. 26 On the respondents' argument, the regrettable fact is that, through no fault of the respondents, all persons in Australia are now exposed to the risk of contracting COVID-19, and there is nothing to suggest that the applicant is exposed to any greater risk than other persons in Australia. More importantly, in circumstances where there is a statutory requirement to detain the applicant in immigration detention, they contend that there is nothing to suggest that reasonable care requires the respondents to take steps to address the risks posed by COVID-19 which go beyond the steps which have already been taken. 27 The respondents note that Associate Professors Cherry and Mijch state that "the only way in which the risk can be minimised is to remove [the applicant] from a contained environment of group living where numerous staff are moving between that environment and the outside community." They contend that even if the applicant's expert evidence is accepted (which they submit it should not be), the substance of the applicant's case is that the respondents' duty of care can only be fulfilled by the Minister exercising one of his non-compellable powers. They argue, and it is uncontroversial, that the Minister has personal, non-compellable powers: (a) to grant a visa to a person in immigration detention under s 195A of the Act, and under the Act he does not have a duty to consider whether to exercise that power; and (b) to determine that a person be held in a specified place other than an immigration detention centre under s 197AB (residence determination), and under the Act he does not have a duty to consider whether to exercise that power. 28 Finally, the respondents contend that a further difficulty with the applicant's assertion of a prima facie case of negligence is that the applicant has suffered no damage and at most, he apprehends a fear of harm if he were to contract COVID-19. They contend that damage is the gist of a cause of action in negligence and it can never be enough to show that the defendant has been negligent in the absence of actionable damage, citing Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537; Gregg v Scott [2005] 2 AC 176 at 231-232. They argue that the absence of any actionable damage means that this is not a case of a continuing tort and distinguishes this case from cases involving interlocutory relief in the context of a continuing tort: eg Mastipour and MZYYR, as cited above. They contend that in the absence of damage the Court would only grant interlocutory relief in circumstances that were exceptional and where the apprehended harm was imminent: Plaintiff S99 at [472] and [490].

Consideration regarding prima facie case 29 The respondents accept that the Commonwealth has a duty to exercise such care for the applicant's health and safety as is reasonable in all the circumstances. That duty is well established. By reference to the salient features identified by Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649; at [102]-[103], the foreseeability of harm in the present case, the nature of the harm alleged, the degree and nature of control able to be exercised by the respondents to avoid harm, the degree of vulnerability of the applicant to harm resulting from the respondent's conduct, the incapacity of the applicant to take steps to protect himself from the harm, the degree of the applicant's reliance upon the respondents, and the respondents' assumption of responsibility in relation to the risks to detainees posed by SARS-CoV-2, all support the existence of such a duty. 30 The question as to whether the Commonwealth has a duty to exercise reasonable care to avoid persons in immigration detention suffering foreseeable harm to their health or safety, and the scope of any such duty, has been considered by the Court on numerous occasions: (a) in Mastipour the Full Court was satisfied that, having regard to the detainee's mental health problems, there was a serious question to be tried as to whether the form of immigration detention provided to the detainee involved a breach of the duty to take reasonable care of his safety. Their Honours found that injunctive relief was appropriate (at [127]-[128], [132]-[136] and [138]-[143]); (b) in S v Secretary Finn J was satisfied that the Commonwealth owed a duty of care to persons in immigration detention to avoid a likelihood of harm to those who are known to suffer from mental illness. His Honour said (at [209]) that the relationship between the Commonwealth and such persons was closely analogous to two classes of relationship which attract a non-delegable duty of care: those of hospital and patient and gaoler and prisoner. His Honour was prepared to grant injunctive relief against the Commonwealth to prevent the applicants being exposed to the likelihood of harm to their mental health, but as the applicants had already been transferred to a mental health facility an injunction was unnecessary (at [263]); (c) in MZYYR Gordon J was satisfied (at [39]) that a prima facie case existed that the applicant was subject to a continuing tort in that the Commonwealth detained him in immigration detention at a place or in a way which did not provide medical care reasonably designed to meet or alleviate his mental health care needs, which was causing him injury. Her Honour (at [55]) was not persuaded that the Court lacked power to restrain a continuing tort of that nature; (d) in Plaintiff S99 the applicant had been raped while held in immigration detention on Nauru, and had fallen pregnant as a result. She wished to undergo an abortion but abortions were illegal in Nauru. She requested the Minister to bring her to Australia for an abortion but he refused to do so, and instead moved the applicant to Papua New Guinea (PNG) where the Minister was prepared to assist her to receive an abortion. The applicant refused to undergo an abortion in PNG on grounds including that, having regard to a particular medical condition from which she suffered, PNG lacked appropriate medical resources. She also contended that abortion was illegal in PNG and she would be exposed to criminal penalty. Bromberg J concluded (at [243]) that the Minister owed a duty of care to the applicant to exercise reasonable care in the discharge of the responsibility that he assumed to procure her a safe and lawful abortion, and made final orders to restrain the Minister from failing to discharge his duty of care in that regard: [528]; and (e) in a raft of decisions by single judges of the Court interlocutory injunctions have been granted for the transfer to Australia for medical treatment of persons detained in immigration detention on Nauru or Papua New Guinea. In each case the Court held that there was a serious question to be tried that the Commonwealth owed the detainee a duty of care to provide him or her with the level of medical care reasonably designed to meet his or her health care needs, albeit expressed in slightly different ways: see, for example, FRX17 v Minister for Immigration and Border Protection [2018] FCA 63; (2018) 262 FCR 1 (Murphy J), AYX18 v Minister for Home Affairs [2018] FCA 283 (Perram J); DCQ18 v Minister for Home Affairs [2018] FCA 918 (Robertson J); BAF18 v Minister for Home Affairs [2018] FCA 1060; (2018) 162 ALD 115 (Bromberg J); and DJA18 v Minister for Home Affairs [2018] FCA 1050 (Murphy J). 31 I consider the applicant made out a prima facie case that the Commonwealth is presently in breach of its duty to exercise such care for the applicant's health and safety as is reasonable in the circumstances. In my view it is appropriate to order, until further order, that the applicant no longer be detained at MITA. 32 I accept that SARS-CoV-2 presents unprecedented challenges for the respondents in relation to the operation of the detention centre network, that the respondents have sought to address the risk of detainees contracting COVID-19 and that they have taken a number of responsible steps aimed at reducing that risk. I have taken into account the fact that, to date, there has not been a single instance of a person detained in the detention centre network contracting COVID-19 from within a centre. Nevertheless, for the purposes of the application I am satisfied that in the circumstances in Victoria at present there is a real risk that SARS-CoV-2 will enter MITA, and rapidly disseminate amongst detainees once it does so. Because of the applicant's age and medical conditions, if he contracts COVID-19, he is predisposed to suffering a serious form of the disease with devastating health consequences, including a substantially elevated risk of death. 33 Some of the evidence underpinning the decision is uncontentious. The respondents either accepted or did not seek to contradict the evidence adduced by the applicant as to the following matters: (a) SARS-CoV-2 is a newly recognised human coronavirus first identified in December 2019. The fact that it is new means that humans have no pre-existing immunity and its high rate of infectiousness has led to a devastating global pandemic: Davis report; (b) the risk of contracting COVID-19 is a product of an individual's exposure to the virus. The virus is spread by direct contact with an infected individual and by contact with surfaces that have become contaminated when coughed on, sneezed on, or touched by the contaminated hands of an infected individual (Davis report, First Cherry report; First Beaman report), but there is increasing evidence suggesting that it may be spread by aerosol (in the air) rather than only by respiratory droplets: Second Mijch and Cherry report; (c) the available data tends to show that around 80% of people who contract COVID-19 have mild disease or even an asymptomatic infection. Approximately 5 to 10% of people get severe lung inflammation such that it becomes very difficult to breathe, and they would likely die without intensive respiratory support, including mechanical ventilation: Davis report; (d) at a population level the risk of dying from COVID-19 was estimated to be 3.4% in a World Health Organisation report (WHO) of 3 March 2020, as cited in the First Cherry report. There are however a number of factors that are recognised to profoundly impact on an individual's risk for developing severe disease which may or may not lead to death from COVID-19: see Report of the WHO-China Joint Mission published 28 February 2020, based on 55,924 laboratory confirmed cases of COVID-19, as cited in the First Cherry report. Relevantly to the applicant, they are: (i) older age is associated with a worse prognosis. Persons over 65 are considered to be at substantially higher risk than younger individuals; (ii) men are approximately 1.6 times more likely to develop severe disease and/or die from COVID-19 than women of the same age; and (iii) individuals with diabetes have a mortality from COVID-19 almost 3 times higher than the general population: (e) avoidance of exposure is the single most important measure of preventing COVID-19 in correctional and detention facilities: CDNA Guidelines (at 3.2); (f) detention facilities such as MITA pose higher risks for transmission and infection: CDNA Guidelines. The CDNA Guidelines state (at 1) that inmates of correctional and detention facilities are "extremely susceptible to outbreaks of respiratory illness" and that "[i]f cases of COVID-19 are introduced to these facilities, there is increased risk of significant transmission and infection with COVID-19". They provide (at 1.1) that: …COVID-19 is acknowledged as a significant health risk particularly for individuals at higher risk of developing severe illness. Correctional and detention facilities are higher risk environments for outbreaks. This is because it is difficult to practice physical distancing in these facilities, where inmates are often located in close proximity and share cells. (Emphasis added.) (g) persons suffering from COVID-19 may be pre-symptomatic or asymptomatic and thus transmit the virus while showing no symptoms: Second Mijch and Cherry report; see also Australian Health Protection Principal Committee Statement on the role of asymptomatic testing, 14 May 2020.

The risk of the virus entering MITA 34 Each of the physicians who provided expert witness reports for the parties are eminently well-qualified to provide the opinions that they did. Professor Beaman and Associate Professor Mijch are particularly senior in the field of infectious diseases. Professor Beaman has 30 years' experience in infectious diseases clinical practice, including three years working in the United States and 10 years researching in Africa, and states that he is the most senior infectious diseases physician in Western Australia. Associate Professor Mijch is an Adjunct Associate Professor of Medicine at Monash University, and a consultant infectious diseases specialist with a special interest in HIV and STIs. She has worked as a consultant and mentor in infectious diseases and HIV in Southeast Asia and Oceania, has taught and researched in infectious diseases and public health, and was awarded an OAM for services to combatting and researching Infectious Diseases. 35 Their opinions regarding the risk that SARS-CoV-2 will enter MITA or other immigration detention centres and as to the risk of dissemination of the virus within the centre are, however, markedly different. In relation to their opinions it should be kept in mind that knowledge in relation to COVID-19 is rapidly developing, and there is a near constant stream of new research studies being released. It should also be kept in mind that the risk of infection with SARS-CoV-2 is a dynamic which is constantly evolving. The rate of community transmission in Victoria, which is one of the chief determinants of that risk, is markedly different now, in August 2020, as compared with April 2020, when the proceeding was filed. The application for an urgent interlocutory injunction was brought in circumstances where the rate of community transmission in Victoria had increased so significantly over the course of July 2020 that the Victorian government declared a state of disaster. 36 In the First Cherry report dated 7 April 2020 (later adopted by the First Mijch and Cherry report) Associate Professor Cherry said that: ….experience in overseas locations suggests that COVID-19 will almost certainly enter a detention facility once there is widespread community transmission of SARS-CoV-2. This is essentially inevitable with large numbers of staff moving between the community and the detention facility. Later in the report she described the likelihood of COVID-19 entering an immigration detention centre as "very high". She said, somewhat presciently for Victoria: …we are now entering a phase where we are seeing community transmission of COVID-19 (that is, new cases are occurring among individuals who have not travelled or had contact with a known case). Almost 100 cases of COVID-19 in Victoria so far cannot be explained epidemiologically. It is hoped that careful contact tracing and isolation, along with increasing social distancing will slow the ongoing spread of the infection ("flatten the curve"), however it is now inevitable that we are going to see continued community transmission. Movement of staff between the community and any immigration detention centre will then inevitably lead to introduction of COVID-19, with likely devastating consequences. (Emphasis added.) 37 By the date of the First Mijch and Cherry report on 20 July 2020, the rate of community transmission in Victoria had increased. Stage 3 restrictions had been imposed in Victoria on 8 July 2020 because of the increase. The First Mijch and Cherry report said: As outlined in the previous reports, and based on experience overseas, we believe it is inevitable that COVID-19 will enter MITA. We direct you to the previous reports for explanation of why we believe COVID-19 cannot be kept out of MITA, or any other detention facility, in the context of widespread community-based transmission. Since those reports were written, the rise in community transmission of COVID-19 in Victoria has only strengthened our conviction that this will occur. A rise in community transmission of COVID-19 in Victoria has recently resulted in metropolitan Melbourne and Mitchell Shire being placed back in Stage 3 restrictions. Areas in Melbourne's North and West are particularly implicated as "hot spots" for COVID-19 community transmission. The location of MITA in Broadmeadows, and the necessary movement of staff (including security, catering and cleaning staff, among others) between MITA and the community, places the facility at extremely high risk for the introduction of COVID-19 via asymptomatic or minimally symptomatic staff with COVID-19. Emerging genomic data show security guards working at Melbourne's quarantine hotels have "seeded" many of the outbreaks of COVID-19 now spreading in our community. Experts in the area describe the nature of Australia's security industry as predisposing to such events, further heightening the risk of COVID-19 both entering places of detention, and of dissemination via such facilities to the wider community. Our view remains unchanged that it is inevitable that COVID-19 will enter MITA. Given the current epidemiology of COVID-19 in Victoria (this has evolved from the predominantly overseas acquired disease seen during our first peak of cases in March, to the current situation of predominant community transmission) we now view this as likely to be an imminent as well as an inevitable event. 38 For that report Associate Professors Mijch and Cherry had been briefed with a number of the guidelines and detailed operational plans that the Department and its long-term external service providers, Serco and IHMS, relied upon or had put in place to reduce the risk of COVID-19 entering immigration detention centres and to contain the spread of COVID-19 should an outbreak occur, including: (a) Department documents titled "COVID-19 Management in Immigration Detention Facilities Guidelines" dated 27 March 2020 and 1 April 2020; (b) the CDNA guidelines issued 31 March 2020; (c) a Serco document titled "COVID-19 Outbreak Management Plan for Immigration Detention Facilities" dated 5 April 2020; and (d) an IHMS document titled "COVID-19 Outbreak Management Plan" dated 6 March 2020. 39 Associate Professors Mijch and Cherry described the guidelines and operational plans as "laudable attempts" to improve the safety of detainees and staff, but nonetheless said that SARS-CoV-2 would inevitably enter MITA. They noted that outbreaks of COVID-19 were then occurring in facilities where infection prevention was part of the "core business" of the facility and where extraordinary actions had been taken to prevent its introduction, including aged care facilities and hospitals. In their opinion, those matters highlighted the difficulties involved in keeping the SARS-CoV-2 virus out of group living facilities. 40 The Second Mijch and Cherry report, dated 5 August 2020, said that the rapid rise in community transmission in Victoria in the period since 20 July 2020 supported their view as to the risk of community transmission seeding an outbreak of COVID-19 in detention centres. Associate Professors Mijch and Cherry said: At the time of writing, the COVID-19 pandemic continues to worsen both globally and also locally. A State of Disaster has been declared this week in Victoria in response to the fact that we now have widespread community transmission of SARS-CoV-2 in this state, and today, for the second time ever, more than 700 new diagnoses of COVID-19 have been documented in the last 24 hours. In addition to an unfolding disaster in our aged care sector, we have documented infections in hundreds of healthcare workers, in staff working in places of detention, and outbreaks associated with numerous other workplaces in the state. Five hundred and thirty-eight Victorians are currently hospitalised with COVID-19, with 42 being supported in our ICUs. The numbers change on a daily basis, and those provided here will be out of date almost immediately. They attached a graph illustrating the rapid escalation of daily new cases of COVID-19 diagnosed in Victoria. They said it was impossible to know when or if future waves of COVID-19 may occur in Victoria but "[a] the time of writing, the situation is NOT under control in Victoria" and areas in the north-west region of metropolitan Melbourne, including where MITA is located, are particularly heavily affected. 41 In their opinion it was "increasingly certain" that COVID-19 would be introduced into MITA, on the basis that: With community transmission now widespread in Victoria, MITA situated in an area of particularly high rates of community transmission, and the frequent transit of staff between the community and MITA, we remain convinced of the near certainty that COVID-19 will be introduced into the centre. The risk of transmission from asymptomatic individuals…makes this impossible to prevent even with rigorous staff screening for symptoms or signs of infection. Even universal use of PPE is not foolproof, with increasing evidence suggesting that aerosol (rather than only respiratory droplet) spread may occur. Indeed, there have already been well documented transmissions of COVID-19 to healthcare workers at hospitals in Melbourne in recent weeks, despite careful use of recommended PPE to protect against respiratory droplet spread. Associate Professors Mijch and Cherry said that it had been estimated that between 40 to 62% of all transmissions occur via respiratory spread from individuals without symptoms: WJ Wiersinga, A Rhodes, AC Cheng et al, Pathophysiology, transmission, diagnosis and treatment of Coronavirus Disease 2019 (COVID-19) A review. Journal of the American Medical Association (published online on 10 July 2020). 42 Professor Beaman took a quite different view. In the First Beaman Report, dated 28 April 2020, he said: People can only acquire COVID-19 by being exposed (generally by coming within 2 metres of a symptomatic case without PPE, or touching surfaces contaminated with the virus). Such conditions are unlikely to occur in an Australian Detention Centre as detainees, visitors and staff are screened for symptoms including fever with testing (if required) and quarantined from the general detainee population if these conditions are met. In fact, it could be convincingly argued that the risk of being exposed to SARS CoV-2 is significantly lower in an Australian Detention Centre when compared to the general Australian community. (Emphasis added.) 43 Professor Beaman did not refer to any risk associated with aerosol transmission of the virus. That may be because knowledge regarding SARS-CoV-2 is rapidly developing and that report was delivered before such a risk was recognised, but it is not clear. More curiously, he did not refer to the risk of infection through exposure to asymptomatic or pre-symptomatic persons suffering from COVID-19. In my view the screening for symptoms upon which Professor Beaman relied for his conclusion that it was "unlikely" that COVID-19 would be introduced into detention centres, could not realistically be expected to detect persons with COVID-19 who were asymptomatic or pre-symptomatic. 44 In the Second Beaman report, dated 30 April 2020, he did not accept the opinion of Associate Professors Mijch and Cherry regarding the "inevitability" of the introduction of COVID-19 into immigration detention centres. He referred to data as at that date which showed low levels of community transmission and described their opinion as "alarmist". He said: …COVID-19 can only enter a detention centre from outside. If the risk is very small in Australia already, it is even lower in a Detention Centre (where there is more social isolation and entry screening than the community) which makes it the safest location in the country. 45 However, by July 2020 the position in relation to community transmission of the virus in Victoria had markedly changed. As the Third Beaman report of 26 July 2020 accepted, cases of COVID-19 in Victoria had begun to rise rapidly from early July up to 450 cases per day, with the peak not having been reached at that point. 1,253 cases did not have an identifiable source, which was suggestive of sustained community spread. 46 Professor Beaman was though unshaken in his opinion as to the risk of the applicant contracting COVID-19 while detained in MITA. In his opinion, risk factors such as allowing multiple visitors into a detention centre, having short-term detainees and having numerous staff, had been recognised and addressed by the operators of the detention centre network, who had adjusted their protocols to appropriately reduce those risks. He said that while it may be germane that security guards in quarantine hotels had seeded COVID-19 in the Melbourne community, the reports indicated that those guards were recruited without close scrutiny or extensive training which was different to the Serco workforce. Nor did he consider the emergence of large numbers of COVID-19 cases in Australian aged care homes to be of significance to the risk of the virus entering MITA. He said that the Aged Care Royal Commission had documented understaffing by poorly paid and trained staff in such institutions, which in his opinion could not be said about the staff at MITA. 47 Professor Beaman described Associate Professors Cherry's and Mijch's opinion regarding the inevitability of the emergence of COVID-19 in MITA as "one of faith, rather than established fact." He said that it was an "indisputable fact" that the risk of being infected by the SARS-CoV-2 virus was "much higher" in the general Melbourne community than in MITA, and noted that Associate Professors Mijch and Cherry accepted that "laudable" procedures are in place to prevent the entry of the virus into MITA. That was a slight mischaracterisation of what Associate Professors Mijch and Cherry said, as they had described the guidelines and plans as "laudable attempts". 48 In response, the Second Mijch and Cherry report rejected Professor Beaman's opinion that that the risk of being infected with COVID-19 was much higher in the general Melbourne community than in MITA. Associate Professors Mijch and Cherry said: The risk of community acquisition of COVID-19 currently varies widely by geographic region in Melbourne. MITA is located in an indisputable "hot spot" of particularly high rates of transmission. We have seen clear evidence of failure of physical distancing recommendations at MITA (including in the dining facility, where face covering is impossible even if such measures were to be offered). The risk of COVID-19 entering the facility is a product of the number of staff entering the facility and the risk that each staff member has of acquiring the infection and attending work while infectious (as above, much transmission occurs prior to the onset of symptoms). We contend that this is much higher than the risk for an individual based in the community and adhering to current stage four restrictions, whereby each community member has as little contact as possible with people outside their immediate household. (Emphasis added.) Principles for identifying breach of a duty of care 49 The test for establishing whether there has been a breach of duty of care was explained by Mason J in The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47-48, as follows: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 50 Mason J said (at 48) The considerations to which I have referred indicate that a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable. 51 This application concerns the risk that SARS-CoV-2 will enter MITA and that the applicant will contract COVID-19 and suffer adverse health consequences, and perhaps die. As Wheelahan J explained in Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; (2017) 271 FCR 595 at [129]-[130] the law treats proof of future or hypothetical events differently from proof of events that are alleged to have occurred in the past. 52 When looking to future events "the court must form an estimate of the likelihood that the possibility will occur": Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 639-640 (Brennan and Dawson JJ). Wheelahan J said, and I respectfully agree: In a curial context, past events have to be proven on the ordinary standards, whether that be beyond reasonable doubt, or on the balance of probabilities. Where the issue that arises is the evaluation of a chance, prospective or hypothetical events relevant to the evaluation of the chance may not be capable of proof in the ordinary sense, but proof is required of any facts that are relevant to the identification and evaluation of a risk or chance of an event occurring in the future. 53 The application is interlocutory and urgent and the evidence was not fully ventilated. None of the witnesses were subject to cross examination. I accept the possibility that I may reach a different view of the evidence at trial, and my findings are for the purpose of this application only. 54 For the purpose of the application I am satisfied that the applicant established a number of matters which are significant to the identification and evaluation of the risk that SARS-CoV-2 will enter MITA in the near future. 55 First, it is undeniable that the COVID-19 pandemic has taken hold in Victoria leading to the declaration of a state of disaster. There is no evidence before the Court to indicate that any of the measures currently in place to bring under control the transmission of SARS-CoV-2 in Greater Metropolitan Melbourne will be effective, and if so when. 56 Second, Associate Professors Mijch and Cherry opine that it is inevitable or a near certainty that SARS-CoV-2 will enter MITA, and there is a basis for their view. 57 Third, for the purpose of the application the evidence establishes the following matters: (a) the highly infectious nature of the virus; (b) the high rates of infection in facilities such as aged care homes and hospitals; (c) the high rates of community transmission of COVID-19 in Victoria at present; (d) that MITA is located within a community hot spot for transmission; (e) the large numbers of staff and others who must come into a detention facility the size of MITA each day; (f) the CDNA guidelines (at 2.2) provide that people with COVID-19 "generally develop signs and symptoms, including mild respiratory symptoms and fever on an average of 5-6 days after infection (mean incubation period 5-6 days, range 1-14 days). In rare cases the incubation period may exceed 14 days." On average it will be 5-6 days (but possibly up to 14 days) before a guard or other staff member who has contracted COVID-19 knows that he or she has done so and therefore ceases to attend MITA; (g) the Australian Border Force protocols for screening persons entering MITA involve temperature testing, and steps are only taken for temperatures detected above 38 degrees. But persons suffering from COVID-19 who are asymptomatic and pre-symptomatic are unlikely to be detected by temperature testing, and fever is not always a symptom, those persons will likely still be infectious but undetectable by that method; (h) that neither the staff nor the detainees wear face masks or other personal protective equipment (PPE). The applicant's evidence in that regard was unchallenged; and (i) cleaning and disinfecting practices at MITA are inadequate to protect detainees from the virus. I prefer the applicant's evidence as to the position "on the ground" to Ms Rees' evidence regarding mandated cleaning and disinfecting practices. 58 Having regard to those matters I am satisfied that there is a real and foreseeable risk that SARS-CoV-2 will enter MITA in the near future. 59 I do not accept the respondents' contention that there is nothing to suggest that the applicant is at any greater risk of contracting COVID-19 while in MITA than other persons in Australia. For the purpose of the application I am satisfied that the applicant is exposed to materially higher risk in MITA than he would be if he was in the community in Victoria, under Stage 4 restrictions, pursuant to which he would only be in contact with persons in his immediate household, would be directed to stay at home unless leaving for one of three specified reasons, and if outside the home required to physically distance and wear a face mask.

The risk that the applicant will contract COVID-19 if the virus enters MITA 60 Having been provided with the detailed guidelines and operational plans that the Department, Serco and IHMS had relied on or put in place to contain the spread of COVID-19 should SARS-CoV-2 enter a detention facility, Associate Professors Mijch and Cherry were also asked to assume various matters, including that: (a) the applicant was accommodated in a single room with an annexed bathroom in the Bass 1 compound of MITA; (b) meals in the communal dining room were no longer alternated, and approximately 50 detainees at Bass 1 compound attended mealtimes together; (c) markers had been placed on the ground and surfaces of the meal areas, indicating 1.5 m intervals in order to encourage detainees to practice social distancing, but that detainees often did not observe social distancing during mealtimes; (d) people continued to enter MITA and interact with detainees, including guards, catering staff and cleaners. There are 10 cleaning staff at the detention centre on any given day who rotate through the centre in pairs and there are generally 2-4 guards stationed at Bass 1 compound; and (e) on occasions where there is unrest such as conflict between detainees or incidents of self-harm, which occur on a fortnightly to monthly basis, there are up to 10 additional guards who enter the Bass 1 compound. For the purpose of the application I am satisfied that those assumptions are supported by the evidence and that they support Associate Professors Mijch and Cherry's opinions as to the risk that, if SARS-CoV-2 enters MITA, the applicant will contract COVID-19. 61 In her report dated 13 April 2020 Associate Professor Cherry opined that the agreement for the applicant to have sole use of a room with an annexed bathroom and be given a personal supply of disinfectant to use in the room, would make only a "minimal difference" to the applicant's risk of contracting COVID-19. She said that the applicant would remain at "extremely high risk" for contracting COVID-19 once the virus enters the facility, even if he has his own single occupancy sleeping quarters and bathroom. She referred to material which in her opinion showed the failure of attempts to introduce "social distancing" during shared meal times, with multiple detainees standing close together in the meal queues and seated close together at tables, and with detainees being exposed to surfaces that would have been touched by many others including tables, chairs and meal trays. In her opinion the level of overcrowding and the lack of "social distancing" demonstrated why, once it got into MITA, a highly contagious virus such as SARS-CoV-2 would be expected to disseminate widely and efficiently between detainees and staff. 62 The First Mijch and Cherry report adopted that opinion. It said: The various guidelines aimed at preventing COVID-19 entering detention facilities are laudable attempts to improve the safety of detainees, staff and the wider community. However, they do not alter our view that COVID-19 will inevitably enter MITA and, once present, it is well recognised that detention centres are places where there is an extremely high risk for rapid and efficient dissemination of the infection… …COVID-19 is transmitted efficiently by respiratory droplets from infected persons, including those without symptoms or who are pre-symptomatic. This makes it effectively impossible to control the spread of infection without routine and diligent use of measures including physical distancing. As outlined in the previous reports, there is no realistic possibility of consistent physical distancing between detainees at MITA, or between detainees and staff… 63 Associate Professors Mijch and Cherry also said: The risk of any detainee, including [the applicant], contracting COVID-19 is extremely high once this infection enters MITA. The situation of close group living has been demonstrated over and over again to result in very high rates of infection amongst all involved, including in prisons overseas, on cruise ships, in the high rise Housing Commission tower in North Melbourne that currently remains in "hard lockdown", in aged care facilities, in the foreign workers' accommodation in Singapore - the list goes on. All the information we have been provided about MITA, including evidence of crowding in the dining facilities, highlights the very high risk environment it is for rapid spread of infection when COVID-19 enters. The contribution of transmission from infected persons before they develop symptoms will make it impossible to prevent spread within MITA by isolating individuals once they become unwell. (Emphasis added.) 64 Professor Beaman took a quite different view. He was confident that if SARS-CoV-2 entered a detention centre there were reasonable prospects of preventing detainees from contracting COVID-19. In the First Beaman Report he said: As an advisor to the Home Affairs Department, I have been involved in the development of the policies designed to protect against infectious diseases including COVID-19 and I am very confident that they are comprehensive and robust. There is ample availability of PPE and appropriate cleaning protocols to keep the environment safe for all, even in the extremely unlikely incursion of the virus into a Centre. 65 Professor Beaman did not consider the recent upsurge of cases in Singapore, referenced in the First Cherry report, to be relevant as, in his view, it related to migrant workers spreading the virus in overcrowded dormitories without adequate access to healthcare, which stood in contrast with the position in detention centres. Nor did he accept Professor Davis's opinion as to the conditions in detention centres giving rise to dissemination of the virus, including because he doubted that Professor Davis had personally inspected a detention centre whereas he had. He did not accept the opinion of Associate Professors Mijch and Cherry who saw similarities between the conditions and thus risks of infection in prisons and in detention centres. He said that the conditions in prisons were far worse than those he had seen in detention centres, and that the statistics regarding infection transmission in prisons could not be generalised to detention centres. In Third Beaman report he expressed confidence in Serco's procedures and recruitment. He rejected the comparison between aged care institutions and detention centres, noting that the Aged Care Royal Commission had documented understaffing by poorly paid and trained staff, which in his opinion could not be said about the staff at MITA. 66 Again, for the purpose of the application the applicant established a number of matters which are significant to the identification and evaluation of the risk of the applicant contracting COVID-19, if SARS-CoV-2 enters MITA including: (a) the highly infectious nature of the virus; (b) that transmission of the virus has been shown to be difficult to contain even in places where infection control is "core business" such as hospitals and aged care homes; (c) that close group living has been demonstrated in a number of contexts to result in high rates of infection, including in overseas prisons, cruise ships, the high-rise Housing Commission towers in North Melbourne, Flemington and Kensington, and in aged care facilities; (d) that the CDNA guidelines recognise inmates of detention facilities are "extremely susceptible" to outbreaks of respiratory illness and that detention facilities are higher risk environments for outbreaks; (e) that although social distancing is recommended at MITA, it is not mandated or enforced. It is not always complied with, particularly at mealtimes in the dining room and in the common areas. The evidence includes photographs of detainees in the dining room of the Bass 1 compound who were not appropriately physically distanced, which evidence the respondents did not attempt to rebut. For the purpose of the application I prefer the applicant's evidence of his personal experience regarding the routine absence of appropriate physical distancing to the evidence of Ms Rees regarding the practical measures available to maintain an appropriate physical distance and what should occur; (f) most of the detainees are in shared rooms and therefore cannot maintain physical distance between themselves and their co-inhabitant sufficient to minimise the risk of infection; (g) staff and detainees do not routinely wear face masks or other PPE; and (h) the CDNA guidelines (at 2.2) provide that on average it is 5-6 days (but possibly up to 14 days) before a person who has contracted COVID-19 shows symptoms. Thus an asymptomatic or pre-symptomatic guard or staff member may enter MITA when suffering COVID-19 and infect detainee[s]. It will be on average 5-6 days before the infected detainee[s] develop COVID-19 symptoms. It is only when either staff member[s] or the infected detainee[s] develop symptoms that the protective response under the guidelines and operational plans will be triggered. In that period it is likely that other detainees will have been infected because of the matters outlined above. 67 Having regard to those matters I am satisfied that, if SARS-CoV-2 enters MITA, there is a real and foreseeable risk that the applicant will contract COVID-19.

The risk that the applicant may suffer serious health consequences or death 68 The evidence on this issue is essentially all one way. Professor Beaman did not contradict Associate Professors Mijch and Cherry in relation to their opinion as to the serious risk for the applicant's health and life should he contract COVID-19. He said nothing to challenge the accuracy of the Report of the WHO-China Joint Mission published 28 February 2020, on which Associate Professors Mijch and Cherry relied, which is based on a study of 55,924 laboratory confirmed cases of COVID-19. It said that: (a) persons over 65 are at substantially higher risk of developing severe disease than younger individuals; (b) men are approximately 1.6 times more likely to develop severe disease including a higher risk of death from COVID-19 than women of the same age; and (c) individuals with diabetes have a mortality from COVID-19 almost 3 times higher than the general population. Professor Beaman did not contradict the opinion of Associate Professors Mijch and Cherry that, if the applicant contracted COVID-19, he would be at "very high risk for severe disease and death", with a conservative estimate of the risk of death of "at least 15%". 69 For the purpose of the application, I am satisfied that if the applicant contracts COVID-19, there is a real risk that he will suffer serious debilitating health consequences, including a real risk of death. 70 Having regard to the evidence outlined above I cannot accept the respondents' contention that there is no evidence that the Commonwealth has breached its duty of reasonable care, even on an arguable basis. In my view it is plain that there is a serious question to be tried as to whether in all the circumstances they have exercised reasonable care to avoid the risk that the applicant will be infected by SARS-CoV-2, or at least to take all reasonable steps to minimise that risk. 71 Contrary to the respondents' argument, the evidence does not show that there is nothing the respondents can presently do to comply with their duty of care. It is true that Associate Professors Mijch and Cherry said that it is "inevitable" that the virus will enter MITA, but that asserted inevitability is at least in part a function of the steps able to be taken by the respondents in the exercise of the duty of care. The evidence was not directed to these questions because the applicant did not seek interlocutory orders directed to minimising the risk within MITA. Instead he sought orders that he no longer be detained there. 72 But in my view the evidence tends to show that there are steps that the respondents could take, within MITA, to reduce the risk of the applicant contracting COVID-19. For example, the applicant could be isolated or quarantined in the manner proposed in the operational plans for a detainee found to have contracted COVID-19. Alternatively, and perhaps less effectively, while there are high levels of community transmission in Greater Metropolitan Melbourne the respondents could take steps to reduce the number of detainees in Bass 1 compound so that there is no crowding and physical distancing can be maintained, to cease to house detainees in Bass 1 compound in shared rooms; to stagger mealtimes to reduce crowding in the dining room, to mandate and enforce (rather than merely recommend) physical distancing, to provide detainees with and require the use of PPE such as face masks by both guards and detainees; and to provide meals to the rooms of vulnerable detainees rather than requiring them to attend the dining room. Under the operational plans, meals in single use containers are to be provided to the room of any detainee who has contracted COVID-19 and is isolated or quarantined. 73 Further, and more fundamentally, even if (contrary to my view) it be accepted that there is nothing the respondents can do to reduce the risks of the applicant contracting COVID-19 while he is detained in MITA, the respondents have a broad range of powers which they could choose to exercise to comply with their accepted obligation to take such care for the applicant's health as is reasonable in the circumstances. 74 The applicant raised three options for consideration by the Minister being: (a) the grant of a visa under s 195A of the Act; (b) the making of a residence determination under s 197AB; or (c) the transfer of the applicant to a detention centre or alternative place of detention which does not have the features of MITA. The first two of those options are personal and non-compellable powers of the Minister, and the applicant cannot (and does not) seek any such order. While I doubt that a failure to exercise them could constitute a breach of the duty of care they are nevertheless available to the Minister. 75 In relation to the third option, the applicant seeks only that he no longer be detained at MITA. It is for the respondents to decide the form and manner of the applicant's detention but it must be compliant with the duty of care. There is presently no need for the Court to concern itself with the question of how the Commonwealth meets its duty of care; provided that it does so the manner of its compliance is a matter for the respondents. 76 The respondents argue that there is a further difficulty with the applicant's contention that there is a prima facie case of negligence, being that the applicant has not suffered any damage. They assert that the absence of any actionable damage or injury means that this is not a case of a continuing tort which distinguishes it from cases involving interlocutory relief in that context, for example, Mastipour and MZYYR. That much can be accepted. But the applicant does not allege a prima facie case of negligence; the originating application and statement of claim do not allege that the applicant has suffered damage. Instead they seek injunctions to restrain the continuing commission of a breach of the duty of care. 77 The respondents do not contend that the Court could never grant interlocutory relief in relation to an apprehended tort, and they raise no question as to power in this regard. Instead they submit that the Court should only do so in circumstances that are exceptional and where the apprehended harm was imminent, which was not so in the present case. 78 In my view the circumstances in the present case are exceptional, and on the evidence the risk of apprehended harm is imminent. In Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235 at 241-242 Lord Hanworth MR expressed the following long-standing principle: When the Court has before it evidence sufficient to establish that an injury will be done if there is no intervention by the Court - it will act at once, and protect the rights of the party who is in fear, and thus supply the need of what has been termed protective justice. It is a very old principle. Sir E. Coke, 2nd Institute, p. 299, says 242 that "preventing justice excelleth punishing justice". Lord Hanworth quoted Bracton's advice, in Latin, which translates to "it is better to restrain in time than to seek a remedy after the injury has been inflicted." 79 First, it cannot sensibly be argued that the pandemic in Victoria, including the declaration of a state of disaster, does not constitute exceptional circumstances. Second, on the evidence of Associate Professors Mijch and Cherry the risk of the applicant contracting COVID-19 is imminent. That is not, however, to say that the present situation will endure. The position regarding transmission of SARS-CoV-2 in Victoria is evolving and it may be that in a month or two the risk of the applicant contracting COVID-19 while detained in MITA has sufficiently decreased such that it will not constitute a prima facie breach of the Commonwealth's duty of care to detain him there. 80 I accept that injunctions to restrain the commission of the tort of negligence are rare. But as Bromberg J said in Plaintiff S99 (at [468]) that is not because of any doctrinal limitation. His Honour explained (at [469]-[471]): As JD Heydon, MJ Leeming & PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines and Remedies (5th ed., 2015)) at [21-105] say: It has sometimes been thought that an injunction to restrain the commission of the tort of negligence could not lie, whether the defendant is threatening to do an act for the first time, or to continue or repeat an act. The reasoning is that damage is one of the ingredients of the plaintiff's cause of action and since one can never tell in advance whether the defendant's activity will cause damage, no occasion to seek the injunction can, as a matter of logic, arise. That reasoning is faulty. If it were accepted, one could never obtain an injunction to restrain a nuisance, a tort in which damage is equally an ingredient. … There is a reason why cases to restrain the commission of the tort of negligence are rare. Usually, damage is suffered before a claim is brought. It is obvious why that is so: in many cases risk of harm is not perceived by the plaintiff and so it cannot be avoided; in cases where a plaintiff perceives danger, especially physical danger, he or she will often take steps to avoid it; in some cases, he or she will take the risk of harm and, if it eventuates, commence proceedings (subject to claims of contributory negligence); finally, in some cases harm is perceived but is unavoidable. In that light, there is limited opportunity for plaintiffs to approach a court to restrain a tort. It might occur in these rare circumstances: (1) the plaintiff has perceived the risk; (2) the plaintiff is not prepared to take the risk; (3) the risk is, in theory, avoidable or reducible; (4) but, the risk is not in the power of the plaintiff to avoid or reduce; (5) and, the risk is in the power of the defendant to avoid or reduce; and (6) the plaintiff has enough time to go to court before the risk eventuates. 81 Those factors essentially describe the applicant's position and I do not accept that the fact that the applicant has not yet suffered damage presents an insuperable hurdle to his establishing a prima facie case for the relief sought. The applicant established a serious question to be tried.

The Balance of Convenience 82 The respondents contend that the balance of convenience does not favour the grant of interlocutory relief. They submit that: (a) the applicant seeks a mandatory interlocutory injunction requiring the respondents to take steps going beyond the preservation or restoration of the status quo: see Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; (1982) 82 ALR 499 at 502-504 (Gummow J); and (b) the practical effect of the order sought by the applicant is to require the respondents to transfer him to another place of immigration detention noting that he does not and cannot seek an order for his release from detention.

Relative risk of alternative measures 83 The respondents submit that the applicant has not established a relationship between the relief he seeks and the harm he seeks to avoid. They argue that there is no evidence upon which the Court could be satisfied that the applicant's risk of contracting COVID-19 would be lower were he to cease to be detained at MITA. In this regard they rely on Professor Beaman's evidence that the risk of contracting COVID-19 is much higher in the general Melbourne community than in MITA. In Professor Beaman's opinion, the policies and procedures in place at MITA and other detention centres are "comprehensive and robust", noting that Associate Professors Mijch and Cherry who described the measures implemented in response to COVID-19 as "laudable attempts". 84 They argue that the applicant's expert evidence does not engage with the relative risk of his contracting COVID-19 in MITA as distinct from being detained at some other location, noting that the premise of the applicant's conclusion that COVID-19 will enter MITA is that there is "widespread community-based transmission". They submit that Associate Professors Mijch and Cherry do not engage in substance with Professor Beaman's conclusion that the overall risk of being exposed to SARS-CoV-2 is significantly lower in an immigration detention centre than in the general Australian community, and instead their opinion proceeds largely on the assumption that COVID-19 will enter MITA. On their argument, to the extent that Associate Professors Mijch and Cherry seek to evaluate the relative risk of exposure of a detainee at MITA and a person within the community, that evaluation: (a) proceeds on the assumption that a person in the community will adhere to the most recent Stage 4 restrictions; and (b) is irrelevant in circumstances where the applicant does not, and cannot, seek an order for his release into the community. 85 In light of those matters the respondents contend that the Court could not be satisfied that an interim order for the respondents to cease to detain the applicant at MITA would in fact reduce the risk of harm the applicant is said to face. 86 I do not accept the respondents' contention. Associate Professors Mijch and Cherry directly contradicted Professor Beaman's opinion that the risk of being infected with COVID-19 was "much higher" in the general Melbourne community than in MITA. As set out at [48] above, they did so because, in their view: (a) there is a high rate of community transmission of the virus in metropolitan Melbourne; (b) MITA is located in a hot spot for community transmission; (c) there was evidence of a failure of physical distancing recommendations at MITA; (d) even if face masks were offered to detainees, face covering was impossible in the communal dining facility; and (e) the risk of COVID-19 entering MITA is a product of the number of staff entering the facility and the risk that each staff member has of acquiring the infection and then attending work while infectious. This last factor focused on the risk arising from the number of staff required to enter a facility the size of MITA, or more particularly into Bass 1 compound, including because of disturbances amongst detainees as described by the applicant. 87 It is true that their opinion that the risk of contracting COVID-19 is "much higher" in MITA than in the community is, in part, based on a comparison with an individual based in the community in Victoria adhering to Stage 4 restrictions. But I do not accept that is an irrelevant comparator. Greater Metropolitan Melbourne is presently subject to Stage 4 restrictions. There is no evidence to show that the applicant would break the law and fail to comply with Stage 4 restrictions if detained in the community. Indeed, given the applicant's obvious concern about contracting COVID-19 I would infer that he is likely to adhere to Stage 4 restrictions if so detained. In that sense, it is an appropriate comparator. 88 Nor is the comparator as narrow as the respondents submit. Associate Professors Mijch and Cherry said as follows: The only way [the applicant's] risk can be minimised is to remove him from a contained environment of group living where numerous staff are moving between that environment and the outside community. Real minimisation of his risk would require [the applicant] to be housed where the number of people he has contact with is as small as possible… They referred to "home isolation" akin to Stage 4 restrictions as one example of this. 89 In my view "home isolation" is not the only example. There are likely to be a number of ways that the respondents could arrange the applicant's detention in a place or manner so that he was not living in a group facility with numerous staff moving between the community and the facility. The respondents have a broad range of powers in relation to the place, form and manner of his detention.

Resourcing and practical implications 90 The respondents contend, and I accept, that the interlocutory relief the applicant seeks will have immediate and practical resource implications for them, depriving them of the unfettered operational ability to choose the location at which the applicant is detained. They say that, self-evidently, there is a finite capacity across the national detention centre network and decisions as to where detainees are to be detained are, by necessity, informed by a multi-faceted assessment of risk and available resources. 91 I accept that this constitutes a prejudice for the respondents. I also accept that, if it eventuates that the applicant is unsuccessful at trial, the resources of the Commonwealth in complying with the injunction will be wasted. Those matters must be weighed in the balance.

The risk to the applicant's health and life 92 Those matters must be weighed against what the evidence shows is a real risk that the applicant will contract COVID-19 while held in MITA and suffer seriously adverse health consequences, perhaps death. This is not a case in which an award of damages would be an adequate remedy if such harm eventuated. 93 It is no fault of the respondents that Victoria is presently in the midst of a serious outbreak of SARS-CoV-2 but given the position in Victoria at present the Commonwealth's duty to exercise reasonable care in relation to the applicant's health and safety is fundamental. He faces a real risk of contracting COVID-19 and as a 68-year-old male diabetic he is susceptible to suffering serious health consequences and a 15% risk of death. The risk that the applicant may become seriously unwell or die if an injunction is refused carries substantially more weight in the balance than the resource and expenditure implications for the Commonwealth and any wasted expenditure. It is also relevant to balance of convenience that given the risk the applicant will die the final relief sought in the proceeding may be nugatory if the injunction is not granted.

The alternatives having regard to the Adverse Security Assessment 94 Finally, the respondents argue that the locations at which the applicant may be detained are particularly constrained by reason of his being the subject of an adverse security assessment by the Australian Security Intelligence Organisation (ASIO). Ms Rees deposed that the Department utilises the National Detention Placement Model, which uses a risk-based approach to the placement of detainees, which takes into account matters including the detainee's risk assessment as well as the risk to other detainees, service providers, visitors and staff, the detention facility, and the detainee's medical needs. She said that in considering placement of an individual, the broader immigration detention network is also considered, as there is finite capacity and "often an operational need to transfer detainees form one detention facility to another to rebalance the network and ensure the stability of each detention facility." 95 The evidence shows that on 16 October 2019, the Director-General of Security assessed the applicant to be directly or indirectly a risk to security within the meaning of s 4 of the Australian Security Intelligence Organisation Act 1979 (Cth) (adverse security assessment). Ms Rees deposed that as a result of the adverse security assessment the detention placement options for the applicant are "somewhat limited". She said that the applicant does not meet the Minister's guidelines for a residence determination, and his detention arrangements must have "sufficient guarding services to protect the interests of the Australian community." 96 Having regard to the evidence Ms Rees said that in her view the only appropriate facilities in which the applicant may be detained are: (a) immigration detention centres established under the Act, such as Villawood and Yongah Hill; (b) alternative places of detention (APOD) approved as a place of immigration detention within the meaning of s 5(b)(v) of the Act, such as the Mantra City Bell Apartments in Melbourne; and (c) a prison or remand centre of the Commonwealth, a State or a Territory. In her view, whilst the applicant could be transferred from MITA to another form of APOD, a purpose-built detention facility such as MITA, with a secure physical environment and on-site amenities including medical facilities, would be preferable to detention at motel/hotel accommodation that has been temporarily designated as an APOD. She considered that the only viable alternative option for placement of the applicant outside of MITA is at Villawood Immigration Detention Centre in New South Wales. The respondents contend that the applicant's evidence does not engage with the impact of his adverse security assessment on the locations at which the applicant can practicably be detained. 97 Mr Papalia deposed that the applicant arrived in Australia on 28 December 2010 by plane as a holder of a tourist visa and that he applied for a protection visa on 28 February 2011. On 7 September 2011 the Refugee Review Tribunal made a direction that the applicant satisfies s 36(2)(a) of the Act, being a person in respect of whom Australia owes protection obligations under the Refugees Convention. On 16 October 2019 the Director-General of Security made the adverse security assessment and on 23 October 2019 the Minister gave notice of an intention to consider cancelling the applicant's visa on that basis. Shortly thereafter a delegate of the Minister decided to cancel the applicant's visa and on 23 October 2019 he was detained under s 189 of the Act. The applicant sought review of the delegate's decision by the Administrative Appeals Tribunal and on 25 November 2019 the Tribunal affirmed the cancellation decision. 98 It appears from the materials that the applicant lived in Dandenong with his son from his arrival in Australia in December 2010 until he was detained on 23 October 2019, apparently without incident. 99 The applicant relies upon a report of Robert Cornall AO, the Independent Reviewer of Adverse Security Assessments, dated 18 May 2020 (the Independent Reviewer's report). The report is partially redacted, but it shows that the adverse security assessment concerned allegations that some years ago the applicant had a business as a "hawala" dealer and coordinated a network of money transfers linked to people smuggling. Hawala is a method of transferring money without any actual movement of currency and an alternative remittance channel existing outside traditional banking systems. Initially the applicant denied that he had a hawala business, or that he was involved in hawala transactions from his business premises in Dandenong. Then, on 14 February 2020, the applicant acknowledged that he did in fact run a hawala business but continued to deny that, by reason of his involvement in the practice, he was or ever had been involved directly in people smuggling. He admitted though that it is possible that some of the money he held on trust for others could have ended up being directed to people smugglers. 100 I note these matters because, for the purposes of the application, I consider the Independent Reviewer's report shows that ASIO's concern in relation to the applicant is not that he poses a threat to the well-being of the community through any risk of engaging in terrorism or violent crime. Rather, it concerns his involvement, in the order of 10 years ago, in the transfer of money to businesses or people said to be associated with people smuggling. ASIO conceded to the Independent Reviewer that its information regarding the applicant's involvement in people smuggling was "dated" but it nevertheless considered that "people smuggling networks, including that of [the applicant], would likely re-establish in the event of changes in the security environment, or a perception that the environment is more favourable for PIIs and people smugglers". 101 The Independent Reviewer accepted that the adverse security assessment was appropriate but expressed reservations about the conclusion about the applicant's likely future behaviour. He recommended that when ASIO undertakes an internal review of the adverse security assessment in respect of the applicant, it give further consideration to its assessment that he would likely take part in people smuggling activities if the opportunity arose in a changed security environment. He pointed to factors which militated against ASIO reaching such a conclusion including: the applicant's age and health, the financial success of the business he had established in Australia, his desire to be in a position to bring at least his wife and possibly other members of his family live with him in Australia, the law applying to regulation of hawala dealers in Australia, and the applicant's awareness that ASIO will likely remain closely interested in his business activities. 102 I accept that the existence of the adverse security assessment complicates the picture in relation to the options available to the respondents for the applicant's detention, making it more difficult and likely more expensive to detain him in a manner which is compliant with the duty of care. But the respondents did not articulate the nature of any risk that they assert the applicant's presence in the community or in some alternative place of detention would pose. Having regard to the Independent Reviewer's report those risks should not be overstated. It should also be kept in mind that the position regarding transmission of SARS-CoV-2 in Victoria is evolving. It may be that in a month or two the risk of the applicant contracting COVID-19 while detained in MITA has sufficiently decreased such that it will not constitute a prima facie breach of the Commonwealth's duty of care to detain him there. The existence of the adverse security assessment has some weight in the balance of convenience but I give greater weight to the risk of the applicant suffering serious ill health or death. The respondents will need to take into account any legitimate security concerns they have when creating a new situation which manages the applicant's detention in accordance with the duty of care, taking into account that it seems likely to be for a short rather than a long term.

Conclusion 103 I made the attached orders which required the respondents, as soon as reasonably practicable but in any event by no later than 1.00 pm on 13 August 2020, to cease to detain the applicant at MITA until further order. The respondents must also inform the applicant's legal representatives of the steps proposed to be taken at least 24 hours prior to taking any steps to comply with the injunction. 104 There have been some further developments since those orders, but they will be the subject of a further judgment. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Murphy.

The Council of the Shire of Wyong v Shirt [1980] HCA 12; (1980) 146 CLR 40

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