Mastipour v Secretary, Department of Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The issue presently before the Court is whether there should be a mandatory interlocutory order directing the first respondent (the Secretary) to transfer the applicant, who is in an immigration reception processing centre (IRPC), to one of two other IRPCs. 2 Before considering that application, I observe that it is not clear whether the second respondent has been served with the application, or with any of the filed materials. It has not appeared. In the statement of claim it is alleged that the conduct of the second respondent with respect to the applicant has been engaged in as agent of the first respondent. Senior counsel for the Secretary acknowledged that the Secretary, through officers of the Department of Immigration & Multicultural & Indigenous Affairs (the Department), has the power to determine in which IRPC the applicant is placed, and as to the form of the detention in which he is placed, so that there is no need to further address the particular circumstances of the second respondent. 3 The applicant is a citizen of Iran currently held in the Baxter IRPC (Baxter). That is because he is an unlawful non-citizen, so s 189 of the Migration Act 1958 (Cth) (the Act) requires that he be detained in immigration detention. It is not suggested that the applicant was not lawfully placed in immigration detention, or that his continued immigration detention is no longer lawful. There is no suggestion that the period of his immigration detention is itself such that he is not continuing to be detained for a lawful purpose in accordance with s 196, or that there has been any failure to comply with s 198 of the Act: cf Minister for Immigration & Multicultural & Indigenous Affairs v Al Masri [2003] FCAFC 70. 4 What the applicant claims in his principal proceedings (as determined from the application filed on 18 August 2003 and from the amended statement of claim filed on 28 August 2003) is that the form of immigration detention imposed upon the applicant from 14 July 2003 to the present time is not authorised by s 189 of the Act and is therefore unlawful. It is alleged that on 14 July 2003, the applicant was placed in what is described as the Management Unit at Baxter 'in solitary confinement'. The Secretary, through senior counsel, cavilled at that description, so I shall simply call the form of detention the Management Unit. The statement of claim alleges in graphic terms what is said to be involved in being in the Management Unit, in relation to both the physical and personal restrictions which are imposed upon the applicant. The form of detention in the Management Unit is of itself claimed to be unauthorised by the Act, to constitute punishment of the applicant, and to constitute torture as defined in Art 1(1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 'entered into force' on 27 June 1987. Consequently, it is alleged that the decisions to place the applicant in the Management Unit in the conditions alleged, and to continue to hold him in the management unit in the conditions alleged, are beyond the power given under s 189 of the Act. 5 The second aspect of the applicant's claims against the Secretary is as follows. The applicant brought with him to Australia his daughter, of whom he had custody pursuant to a divorce agreement entered into in Iran. Whilst in the Management Unit, and until 23 July 2003, he had access to her for a short time each day. On 23 July 2003, without the knowledge or consent of the applicant, the Secretary caused the daughter to be removed from Australia. He did not have an opportunity to say goodbye to her. It is alleged that her removal from Australia was, inter alia, to place pressure upon the applicant to abandon his attempt to get a protection visa and to place pressure upon him to return to Iran voluntarily, and that such conduct for either of those purposes amounts to an abuse of powers given under the Act. 6 The third aspect of the statement of claim arises from the allegation that the applicant has been in immigration detention in the form provided in the Management Unit not simply for the period from 14 July 2003, but for an earlier period of some 11 days in early 2003 whilst at Baxter, and on three earlier occasions whilst at the Curtin IRPC. It is then alleged that the conditions in the Management Unit are punitive, and have caused the applicant emotional shock and psychiatric injury. It is further alleged that the circumstances of the removal of his daughter from Australia were such as were likely to, and did, cause him further emotional shock and psychiatric injury. By reason of his immigration detention, the applicant alleges that the Secretary owed to him a duty to take care to avoid exposing him to circumstances which are or were likely to cause him emotional shock and psychiatric injury, that the duty of care has been breached, and that as a consequence he has suffered severe emotional shock and psychiatric injury. 7 The form of the interlocutory orders sought has evolved over time. When the application was first instituted, an interlocutory order was sought that pending the hearing and determination of the application, the applicant be returned to Baxter in the general immigration detention community rather than in the Management Unit. On 26 August 2003 that application became more refined. Senior counsel then appearing for the applicant sought an order that would prevent him from suffering serious psychiatric harm, in substance that until further order he be admitted to the Glenside Psychiatric Hospital (albeit still as part of his immigration detention). An issue arose in the course of contentions as to the Court's power to make such an order. In the result, through counsel, the Minister for Immigration & Multicultural & Indigenous Affairs (who was then the first respondent, in lieu of the Secretary) indicated that he would arrange as soon as practicable to transfer the applicant to the Glenside Psychiatric Hospital for assessment and would notify the solicitors for the applicant of the outcome of that assessment. The application for interlocutory relief at that point was not then pressed. Unfortunately, the proposed transfer of the applicant to the Glenside Psychiatric Hospital did not eventuate. Consequently, on 4 September 2003 the application for interlocutory relief was renewed. 8 As noted, it is now an application that the applicant, who is still in the Management Unit, be removed forthwith from Baxter (not simply from the Management Unit) and that he be taken to immigration detention at the Villawood IRPC near Sydney, New South Wales (Villawood) or the Maribyrnong IRPC in Melbourne in Victoria (Maribyrnong). The Secretary has not contended that such interlocutory relief should be refused because it does not serve the nature of the principal claims in the proceeding. It has sensibly been recognised that, by amendment of the application and the statement of claim, primary relief to the same effect could be sought. The application for interlocutory relief has proceeded on that basis. 9 For the purposes of the interlocutory application, it is accepted that the applicant's mental health was not good, and that it has deteriorated over recent times. It is also accepted that the applicant remains in the Management Unit at Baxter, although the Secretary has offered to remove him from the Management Unit back to the general community in Baxter. It is further accepted that the applicant does not wish to be returned to the general community in the Baxter IRPC. On 26 August 2003, counsel for the Minister indicated that the applicant could then, at his option, be returned to the general community within Baxter and to any particular compound within it. However, counsel expressed the Minister's position as being that once a person is in lawful immigration detention, the form of that detention is entirely within the Minister's discretion so that a form of detention which is imposed for punitive purposes (even if unwarranted or capricious) is not subject to judicial review, although it may give rise to a claim for damages. It was also contended that a breach of the Secretary's (admitted) duty of care to those in immigration detention is capable of being remedied by damages, but not by any form of equitable injunctive relief. As I have noted, it was not then necessary to address those issues. 10 It is unclear from the submissions made on the present application whether each of those positions is maintained by the Secretary. It is however the Secretary's position, in the light of all the presently available medical evidence, that the applicant may be discharged with his consent into the Baxter general community or to the Port Hedland IRPC, but that the Secretary is not prepared to transfer him to either Villawood or Maribyrnong. Because of the short notice of the hearing, I raised with senior counsel for the Secretary whether cross-examination of any of the medical deponents was sought, but no application to cross-examine any of those deponents was made. I also adjourned the hearing, and deferred ruling on the application for interlocutory relief, to give the Secretary the opportunity to adduce material about the availability of the 'option' of transferring the applicant to Villawood or Maribyrnong and about the nature of the facilities relevant to his circumstances at Baxter, Villawood and Maribyrnong. 11 As I understand the contentions, senior counsel for the applicant contends that the interlocutory orders sought should be made because the continued detention of the applicant in the Management Unit at Baxter is unlawful. There are two grounds of unlawfulness: the detention is in a form not authorised by the Act, and secondly the form of the detention is for a purpose not authorised by the Act. On the latter of those options, it is submitted that there is a serious question to be tried that the purpose of the Secretary in maintaining the applicant's detention in the Management Unit is for punitive purposes, on the basis that the applicant fears and reasonably fears that the options otherwise offered to him to return to the general population in Baxter or to the Port Hedland IRPC would expose him to the risk of serious harm. Consequently, it is said, he is being offered no choice at all. The argument then runs that if that form of detention is unlawful, and there is some (albeit limited) evidence of alternative forms of immigration detention or locations for immigration detention which would not involve that illegality whether by reason of its form or by reason of its purpose, the Court should exercise its power to direct compliance with the Act by requiring the respondent Secretary to adopt one of those alternatives. 12 The Secretary contends that, as the substance of the submission is that the current form of detention of the applicant is punitive and is therefore beyond power, because the Secretary is prepared to release the applicant (if he consents) into the general Baxter community (or to Port Hedland), there can be no arguable case that the present form of detention is unlawful. He remains in the Management Unit at his option, and not by the Secretary's decision. Simply because the applicant has an apprehension of being mistreated in the general population in Baxter does not mean the Secretary through the Department's officers continues to impose an (allegedly) unlawful form of detention upon the applicant. Moreover, as the Secretary does not require the applicant to remain in the Management Unit, there can be no ongoing (allegedly) wrongful purpose attributable to the continued detention of the applicant in the Management Unit. 13 The second contention of the applicant is that he is owed a duty of care by the Secretary whilst he is in immigration detention to take reasonable care for his safety. He contends that there is a serious question to be tried that there is an ongoing breach of that duty of care by the form of immigration detention which he is offered (whether in the Management Unit at Baxter or in the general population at Baxter or at Port Hedland). That is because the applicant may be prompted to cause harm to himself or to others, or that he will experience harm from the options for immigration detention the Secretary is prepared to espouse. The ongoing breach of that duty, it is contended, arises because there may be a progressive deterioration of the applicant's mental state by virtue of his present detention in the Management Unit at Baxter or if he were placed generally in Baxter or in Port Hedland. Hence, mandatory interlocutory relief is sought to avoid the risk of further harm by the ongoing arguable breach of duty towards him. The breach of duty involves features of the second and third aspects of the statement of claim set out in [5]-[6] above. 14 Senior counsel for the Secretary responds that, assuming such a duty of care exists, there is no serious question to be tried that there is a breach of that duty where there has been an offer put to the applicant which on the evidence would remove the circumstance (detention in the Management Unit) which may involve a breach of that duty. The fact that he may have personal difficulties if he is released into the Baxter community does not mean that the Secretary to avoid breaching the duty of care has to place the applicant at his own suggestion at Villawood or Maribyrnong where the difficulties may not arise. Hence the Secretary adopted the position which has been described above. It was further put that the Court has no power to, and in any event should not, make such an order as sought on the information available. Senior counsel submitted there is nothing to indicate in an affirmative way that the Secretary has the capacity to transfer the applicant to either Villawood or Maribyrnong as there is no evidence as to the availability of beds in those locations, or to indicate the nature of the facilities there available, or to indicate whether the sort of facilities which the medical evidence suggests are desirable might be available there and not at Baxter. There is no evidence, it is said, to support any contention that the facilities best suited to the applicant or adequately suited to the applicant are not available to him in Baxter or potentially in Port Hedland. In the face of those submissions that I gave the Secretary the opportunity to adduce evidence on those matters. 15 The Secretary took the opportunity to file four further affidavits. They did not demonstrate that the transfer of the applicant to either Villawood or Maribyrnong would present any real practical difficulties to the Secretary. They do show that there are medical and like facilities at Baxter and Port Hedland, as well as at Villawood and Maribyrnong. They show that officers of the Secretary have addressed, and attempted to give effect to, those officers' views as to what is best, or at least appropriate, for the applicant. They do not show that those officers have carefully addressed the medical evidence, or that they have fully recognised that it is the applicant's personal circumstances and his perceptions of what might confront him at Baxter or Port Hedland which are feeding his mental problems. They do show that there are reasonable grounds for those officers forming the belief that, objectively, the applicant's fears about what might confront him at Baxter or Port Hedland may not be realistic, or that his perception that he would be safe in Villawood or Maribyrnong might be erroneous. But, as I have noted, that is the focus of the present medical evidence. Consequently, I do not think that material leads to the view that there is no serious question to be tried that the Secretary is in breach of the duty of care owed to the applicant. 16 Before considering those submissions, I note the medical evidence available on this application. It constituted material secured by the Secretary and by the applicant. The differences were of degree, rather than of substance. 17 The applicant was examined by Dr Gorton, a psychiatrist, in the Management Unit on 24 July 2003. He was then on a starvation diet because he wished to be moved to another detention centre. He expressed personal reasons (which I do not need to explain in these reasons for decision) as to why he did not wish to be returned to the general Baxter community. Dr Gorton said in his report dated 28 July 2003: '… It is considered that his request for transfer is a reasonable one, and if such a transfer is possible such is recommended and supported on psychiatric grounds. It is considered that he is genuine in his aims, and he has the capacity to starve himself to death as he believes that he has little else to live for.' Dr Gorton records that he had been instructed not to inform the applicant at that time that his daughter had by then been taken from the detention centre for removal from Australia. He commented that the applicant's psychological or psychiatric status or mental status would deteriorate further on hearing that news. Dr Gorton saw the applicant again in the Management Unit on 15 August 2003. In his report dated 19 August 2003 he noted that the applicant had resumed eating. He further noted that the applicant's reasons for wanting a transfer from Baxter, rather than reintroduction into the general community in Baxter, had been reinforced by the removal of his daughter from Australia. He described the applicant as having a 'mild underlying and understandable depressive state' and recommended a change in medication. He concluded: 'In view of this assessment it is strongly recommended that favourable consideration be given for his application for transfer as he has experienced significant hardship to date, with him being particularly distressed by having, from his point of view, his daughter taken away without even the chance to say goodbye.' 18 A considerably bleaker medical report was provided by Dr S Momartin, psychologist, and Mr Z Steele, psychologist, both members of the School of Psychiatry at the University of New South Wales, in a joint report dated 20 August 2003. They interviewed the applicant by telephone on that day. They had examined him earlier and reported earlier about his condition. They described him as suffering from severe major depressive disorder and chronic post traumatic stress disorder, with symptoms consistent with a diagnosis of psychotic disorder. They determined that his mental state had significantly deteriorated since they had last examined him on 5 September 2002. They were of the view that he required urgent assessment and referral to an appropriate inpatient acute psychiatric unit for management of his condition. (It was upon the report of 20 August 2003, as I understand it, that the Minister initially on 26 August 2003 indicated a preparedness to have the applicant assessed at the Glenside Psychiatric Hospital.) 19 Dr F Hawker, a consultant psychiatrist and Professor N James, the clinical director of the Glenside campus of the Royal Adelaide Hospital, provided joint reports of 29 August 2003 and 4 September 2003. They were jointly of the opinion that the applicant did not show any signs of psychotic illness, nor that he was suffering major depressive illness. Their views were consistent with those of Dr Gorton. They did not think he would benefit from psychiatric inpatient treatment. Their report includes the following: 'We note that a concern has been raised regarding his extensive period in the management centre. The assumption may have been that this was because [the applicant] suffers with a major psychiatric illness, but this does not appear to be the case. Rather, he stated that he presently chooses to stay in the management centre rather than return to the general living area in Baxter for fear of harassment because of [certain past events]. Our recommendations are that he remain on his current management regime, as determined by Dr Howard Gorton and that he be transferred to another venue where he may receive continuing expert attention to his mental health needs, given the ongoing extreme stressors. To our knowledge, this would not be available outside a capital city.' Their subsequent joint report of 4 September 2003 records the view that the applicant remains in a highly vulnerable emotional condition for a number of reasons, including those relating to his fears if he were to be returned to the general population in Baxter, or if he were to be placed in the general population in Port Hedland. They considered that his 'ongoing and significant vulnerability' is likely to lead to a deterioration in his mental health, and in their opinion: ' … this likelihood would be greatly lessened if he is placed in a centre where … [he would not be exposed to those against whom he has fears in immigration centres], where he has fewer reminders of his caring relationship with his daughter … and where he has ready access to urgent psychiatric review, as required … and continuing counselling and support from mental health nurses'. 20 The evidence shows that the applicant has had discussions with the Deputy Manager at Baxter on a number of occasions since 25 August 2003 with a view to him reintegrating into the Baxter community. He has been offered the choice of returning to one of the compounds in Baxter or a transfer to the Port Hedland IRPC (Port Hedland). He has declined those options because he fears adverse consequences from those who have or may have a mistaken belief about his earlier conduct. It was put that the applicant was previously in Curtin where, in part, misconceptions about his earlier conduct arose, and upon its closure the population of Curtin largely moved to Port Hedland or to Baxter. 21 There is at the least a clearly arguable case that the Secretary owes to the applicant a duty to take reasonable care for his safety whilst he is in immigration detention. The Secretary did not contend to the contrary. A sufficiently close analogy is with the duty of care owed by those responsible for prisons towards those imprisoned: Howard v Jarvis (1958) 98 CLR 177; Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283; Hall v Whatmore [1961] VR 225; Dixon v Western Australia & Lees[1974] WAR 65. 22 In my view, there is also a serious question to be tried that the present form of detention of the applicant, if it were to continue in the circumstances, may involve a breach of the duty to take reasonable care for the applicant's safety. I do not intend to convey that placing the applicant (or another person in immigration detention) in the Management Unit at Baxter per se constitutes a breach of the duty of care. I do not have to decide that. But the applicant has been in the Management Unit for some two months, and the medical evidence indicates that his continued detention there is likely to cause him damage. There are no countervailing circumstances put forward by the Secretary to warrant his continued detention in the Management Unit. 23 The position is however not so clear cut because, as the Secretary points out, it is the applicant now who is choosing to remain in the Management Unit at Baxter. The medical evidence indicates his choice is dictated by his fears of harm if he were to return to one of the general compounds at Baxter or at Port Hedland. The fact that the Secretary may have systems in place to protect him from such threats, and may have exercised or may propose to exercise reasonable care to protect him from attack by other detainees (see e.g. L v Commonwealth (1976) 10 ALR 269) is not the point. So much may be assumed without there being an answer to the applicant's particular circumstances. That is because it is the fear of such consequences, whether it is realistic or not (or perhaps more accurately, whether taking into account that there are systems and personnel to protect the applicant from such potential consequences), which on the evidence is the cause of the damage arguably being suffered by the applicant. His desire to remain in the Management Unit rather than to return to the general detainee group in Baxter illustrates the point. Each of the doctors who has examined the applicant, with only some difference in degree of emphasis, has supported the transfer of the applicant from Baxter to prevent or minimise the harm which he is suffering. 24 In R v Deputy Governor of Parkhurst Prison, Ex parte Hague [1992] 1 AC 58, Lord Bridge of Harwich (with whom Lord Ackner, Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Lowry agreed) said at 166: 'Whenever one person is lawfully in the custody of another, the custodian owes a duty of care to the detainee. If the custodian negligently allows, or a fortiori, if he deliberately causes, the detainee to suffer in any way in his health he will be in breach of that duty. But short of anything that could properly be described as a physical injury or an impairment of health, if a person lawfully detained is kept in conditions which cause him for the time being physical pain or a degree of discomfort which can properly be described as intolerable, I believe that could and should be treated as a breach of the custodian's duty of care for which the law should award damages. For this purpose it is quite unnecessary to attempt any definition of the criterion of intolerability. It would be a question of fact and degree … .' That passage was cited with apparent approval by Gray J in Secretary, Department of Immigration & Multicultural & Indigenous Affairs v Behrooz [2002] SASC 370 at [68]. 25 On the evidence before me, there is a serious question to be tried that maintaining the applicant in immigration detention in the Management Unit or generally at Baxter is detention which, in his particular circumstances involves conditions which are causing, and are likely to continue to cause, him significant psychological harm. I have also come to the view that to transfer the applicant to Port Hedland involves an arguable case that the same consequences may ensue. That is because the ongoing treatment due to his 'extreme stressors' is shown by the joint report of Dr Hawker and Professor James to not be available outside a capital city. 26 In the absence of other countervailing factual considerations, I am therefore satisfied that there is a serious question to be tried that the Secretary is in breach of the duty of care owed to the applicant. 27 Whether injunctive relief is granted at this point, and if so in what terms, is in my view to be resolved by the application of generally accepted discretionary considerations. There may be scope for dispute about whether the grant of mandatory injunctive relief requires the existence of a clear case with strong prospects of securing permanent injunctive relief at trial (see e.g. Locabail International Finance Ltd v Agroexport [1986] 1 All ER 901; [1986] 1 WLR 657), or is determined according to where the justice of the case lies at the interlocutory stage, having regard to the prospect that at trial the applicant may not succeed. See e.g. Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772 at 780-981; [1987] 1 WLR 670 per Hoffman J at 680-681; Newport Association Football Club Ltd v Football Association of Wales Ltd [1995] 2 All ER 87; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 per Gummow J at 502-504. But the power of the Court to grant equitable relief at an interlocutory stage of proceedings is now beyond question: see the discussion in Spry 'Equitable Remedies' 5ed LBC 1997 at 557. And, although it was put that there are only rare (if any) instances in cases where the cause of action is in negligence and where interlocutory injunctive relief is granted, I see no reason why such relief should not be granted in appropriate circumstances. It is not uncommon to make mandatory interlocutory injunctive orders in cases of nuisance where the justice of the case requires: see e.g. York Bros (Trading) Pty Ltd v Commissioner of Main Roads [1983] 1 NSWLR 391; Daily Telegraph Company Ltd v Stuart (1928) 28 SR (NSW) 291; Kennaway v Thompson [1981] QB 88; Hooper v Rogers [1975] Ch 43; Morris v Redland Bricks Ltd [1970] AC 652. 28 In this matter, on the present evidence, I think the serious question to be tried about there being an ongoing breach of duty by the Secretary is a strong one. The consequences to the applicant are significant, and continuing, and they are likely to increase (that is, his medical condition is likely to worsen). The circumstances are such that, in my view, damages subsequently awarded may well not be an adequate remedy. That may depend upon whether his mental condition deteriorates to a point where treatment belatedly will be less effective or more prolonged. Indeed, such discourse in this matter seems out of place as all the medical evidence points generally in the same way, and was not challenged by the Secretary. The detriment to the Secretary if the applicant is subsequently found not to have been entitled to the relief sought will be relatively small - the expenditure of money for the transfer of the applicant to another IRPC - but the Secretary has already indicated a preparedness to transfer the applicant to Port Hedland. As I noted however, the most recent medical report indicates the applicant should be transferred to an IRPC close to a capital city to better secure his ongoing medical treatment. It is not a case where there is really much to put in the scales on the balance of convenience about hardship to the Secretary in transferring the applicant to Villawood or Maribyrnong. 29 Counsel for the Secretary urged me to consider the desirability of not interfering with 'good administrative practice', and to recognise that the Secretary is in the best position to make the correct decision. I have had regard to those matters. The fact remains that the medical evidence is, in broad terms, all one way. The further material adduced by the Secretary does not really indicate how, if at all, the present decision-making processes have had regard to that evidence. It is, as counsel for the Secretary said, more directed to showing that in fact there are sophisticated decision-making processes in place and that the present position of the Secretary may well involve a proper fulfilment of the duty of care owed to the applicant. 30 In my judgment the respective interests of the applicant and the Secretary are best reflected and protected at this point in the proceedings by making the order sought by the applicant. I think the interests of justice are best served by such an order pending the hearing and determination of the principal issues in the proceedings. I will hear the parties as to what (if any) undertaking as to damages should be procured from the applicant before making such an order. 31 As is apparent, it has not been necessary to decide whether the applicant has made out a serious question to be tried as to the lawfulness of the form of his immigration detention in the Management Unit, whether taken alone or whether taken with the circumstance (he claims) that he is not prepared to return to the general detainee population in Baxter or Port Hedland. In a sense, the apparent deterioration of his mental state has overtaken the immediacy of the claims made in the amended statement of claim. Moreover, as senior counsel for the Secretary pointed out, now that the Secretary has been substituted as the first respondent in lieu of the Minister, the statement of claim will require further amendment. I will vacate the directions given on 27 August 2003, and will give the applicant leave to file and serve an amended statement of claim by 26 September 2003. I will fix a further directions hearing date to give the Secretary and the second respondent (which, if not yet served with the proceedings, should be served promptly) the opportunity to consider that document.