Consideration
60 In Plaintiff M96A/2016, Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ summarised the scheme of the Migration Act as it applied in relation to persons in a like position to that of the Applicant. Neither party submits that any subsequent amendments to the Migration Act have affected the architecture of the scheme. It is convenient therefore to adopt their Honours' summary of the structure of the scheme as the initial foundation for the Court's consideration of the questions arising in this proceeding.
8 …The provisions of the Act which are of particular relevance to this case are those which are concerned with the plaintiffs as "transitory persons".
9 When the plaintiffs arrived at Christmas Island, they were classified as "unauthorised maritime arrivals", as defined in s 5AA of the Act. This was because they entered Australia by sea at an "excised offshore place" (within the meaning in s 5(1), which includes Christmas Island), they were "unlawful non-citizens" (within the meaning in s 14, read with s 13), and they were not "excluded maritime arrivals" (within the meaning in s 5AA(3)).
10 Divisions 7 and 8 of Pt 2 of the Act comprise, respectively, ss 188 to 197AG and ss 197C to 199. It is the provisions of those two Divisions which have governed the manner of treatment of the plaintiffs. The two Divisions are respectively entitled "Detention of unlawful non-citizens" and "Removal of unlawful non-citizens etc".
11 When the plaintiffs arrived at Christmas Island, they were detained under s 189(3) of the Act. That sub-section provides, subject to exceptions which are not presently relevant, that an officer (as defined) must detain a person who is in an excised offshore place if the officer knows or reasonably suspects that the person is an unlawful non-citizen. Section 198AD(2) of the Act then provides that an officer must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom the section applies from Australia to a regional processing country. Since the plaintiffs were classified as "unauthorised maritime arrivals" they were taken to Nauru, which is a regional processing country.
12 Section 198B of the Act provides that an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia. The plaintiffs fell within the definition of "transitory person" in s 5(1) because they were people who had been taken to a regional processing country under s 198AD. Examples of the "exceptional situations" where a temporary purpose might lead to a transitory person being brought to Australia were given in the Revised Explanatory Memorandum to the legislation which introduced s 198B of the Act. Those examples were8: medical treatment for a condition which cannot be adequately treated in the place where the person has been taken; trials at which the person is to provide evidence in the prosecution of people smugglers; or transit through Australia to a country of origin or to a third country. In this case the temporary purpose was medical treatment.
13 The power to bring a transitory person to Australia for a temporary purpose under s 198B is an exception to the prohibition upon a non-citizen travelling to Australia "without a visa that is in effect": s 42(1), (2A)(ca). Unless the Minister determined otherwise, if the plaintiffs made an application for a visa while in Australia, that application would not be valid: s 46B(1)-(2).
14 Division 8 of Pt 2 of the Act creates a regime for removal of persons from Australia. Two of the central provisions in this regime which are relevant to transitory persons are ss 198AD and 198. Section 198AD(2) provides that an officer "must, as soon as reasonably practicable, take an unauthorised maritime arrival to whom this section applies from Australia to a regional processing country". Section 198(1) provides that an officer must remove an unlawful non-citizen as soon as reasonably practicable when that person "asks the Minister, in writing, to be so removed". These two provisions do not have concurrent operation because s 198AD applies to unauthorised maritime arrivals, and s 198(11) provides that s 198 does not apply to an unauthorised maritime arrival to whom s 198AD applies. In other words, the provisions of s 198 will only apply where s 198AD does not apply.
15 Section 198AD of the Act applies, with various qualifications, to unauthorised maritime arrivals who are detained under s 189. Section 198AH lists requirements that must be satisfied before s 198AD will apply to a transitory person. The requirements include that the transitory person (i) is an unauthorised maritime arrival who has been brought to Australia from a regional processing country under s 198B for a temporary purpose (s 198AH(1A)(a)); (ii) is detained under s 189 (s 198AH(1A)(b)); and (iii) no longer needs to be in Australia for the temporary purpose (whether or not the purpose has been achieved) (s 198AH(1A)(c)).
16 Section 198 will apply to a person who is an unlawful non-citizen within s 198 but not to an "unauthorised maritime arrival" within s 198AD. The category of unlawful non-citizens is broader than unauthorised maritime arrivals because, by ss 13 and 14 of the Act, an unlawful non-citizen is any non-citizen in the migration zone who does not hold a visa. However, as the plaintiffs were unauthorised maritime arrivals, the provisions of s 198 only apply to them where s 198AD does not apply. One circumstance where s 198AD will not apply is where a transitory person still needs to be in Australia for a temporary purpose. While that need to be in Australia is present, as it is for the plaintiffs on their pleaded case, s 198AD will not apply and the operation of s 198 is not excluded by s 198(11). Hence, while a person needs to be in Australia for a temporary purpose, the person can nevertheless request to be removed from Australia under s 198(1) of the Act. Contrary to the plaintiffs' submissions, there is nothing illogical about a construction which permits a person who is taken to Australia for a temporary purpose such as consensual medical treatment to request removal from Australia. As to the scope of s 198(1), and in circumstances where it does not affect the ultimate conclusion in this case, it is sufficient to proceed on the basis of the defendants' submission that s 198(1), properly construed by reference to its consensual character, would not permit removal of an unlawful non-citizen to a place contrary to his or her wishes.
17 Apart from where a transitory person needs to be in Australia, there are other circumstances in which s 198AD will not apply. In broad terms, these include where there is no regional processing country (s 198AF); where a regional processing country has advised an officer in writing that the country will not accept the unauthorised maritime arrival (s 198AG); or where the Minister determines that s 198AD does not apply (s 198AE).
18 In every circumstance where s 198AD does not apply and where an unlawful non-citizen is brought to Australia for a temporary purpose, s 198(1A) imposes an obligation upon an officer to "remove the person as soon as reasonably practicable after the person no longer needs to be in Australia for [the temporary] purpose (whether or not the purpose has been achieved)". The combination of ss 198(1A) and 198AD(2) means that any transitory person who is brought to Australia for a temporary purpose must be removed as soon as reasonably practicable after the person no longer needs to be in Australia for that purpose (whether or not the purpose has been achieved). As we explain below, the Act has the effect that the person will be kept in immigration detention whilst in Australia (s 189). That immigration detention must continue until the time of removal from Australia under s 198(1A) (s 196(1)(a)), or until the commencement of acts involving the process of removal from Australia to a regional processing country under s 198AD(3) (s 196(1)(aa)).
(footnotes omitted)
61 In respect of the constitutional validity of that scheme the plurality's reasons as is directly relevant to this proceeding was as follows:
22 As the plaintiffs accepted in oral submissions, the purpose of immigration detention is assessed objectively by reference to all of the circumstances. In Plaintiff S4/2014 v Minister for Immigration and Border Protection14, this Court said that "detention under and for the purposes of the Act is limited by the purposes for which the detention is being effected". The Court added that the only lawful purposes of detention of non-citizens are: (i) removal from Australia; (ii) receiving, investigating, and determining an application for a visa permitting the alien to enter and remain in Australia; or (iii) determining whether to permit a valid application for a visa. It is sufficient to resolve this case on this basis, and unnecessary to address two further submissions made by the defendants. One of those submissions was that the list of permissible purposes of executive detention of non-citizens within Ch III of the Constitution is not closed and might extend beyond the three purposes identified above. The other was that the relevant distinction to be employed in order to determine whether a law authorising or requiring the Executive to detain non-citizens in custody is consistent with Ch III of the Constitution is a distinction between punitive and non-punitive purposes or, perhaps more accurately, between the purposes of punishment and other purposes.
23 The plaintiffs submitted that their detention in Australia was not for any of the three purposes identified above, each of which is connected with the executive power to permit non-citizens to enter and remain in Australia. They also submitted, correctly, that they have no right to make an application for a visa whilst they are in Australia. Hence, they submitted, they cannot be detained for purposes (ii) or (iii). They also submitted that while they need to be in Australia for the temporary purpose, their detention cannot be said to be for the purpose of removal from Australia (purpose (i)). Instead, they submitted, the purpose of their detention was the temporary purpose for which they were brought to Australia.
24 The plaintiffs' submission that their detention is for an impermissible purpose must be rejected. The temporary purpose for which a transitory person needs to be in Australia is not the same as the purpose for which that person is detained. It is unnecessary to determine whether the temporary purpose under the Act is a subjective purpose of the officers or whether it is a purpose which is objectively ascertained from the circumstances. In either case, that temporary purpose is different from the purpose of detention.
25 One circumstance which can illustrate the difference between the purpose of bringing a transitory person to Australia and the purpose of detention is where a transitory person is brought to Australia for medical treatment. The purpose of detention is not for medical treatment. Detention might even be antithetical to the medical treatment for which the person is brought to Australia.
…
30 The plaintiffs submitted that the period of detention of transitory persons brought to Australia under s 198B is governed only by the question whether and when the person "no longer needs to be in Australia" for the relevant purpose and that this invalidated the detention. This was said to be for two reasons: first, because the period of time for detention is not readily capable of objective determination by a court at any time, and from time to time; and secondly, because the temporal limits are not connected with the limited permissible purposes of administrative detention such that the power to detain is not unconstrained.
31 The first of these two alleged reasons for invalidity misunderstands the requirement that the duration of any form of detention must be capable of being determined at any time, and from time to time. The requirement, reinforced by the reference in Plaintiff S4/2014 v Minister for Immigration and Border Protection to the remarks of the Lord Chancellor in Crowley's Case about the need for the writ of habeas corpus ad subjiciendum, is that there must be objectively determinable criteria for detention. In other words, Parliament cannot avoid judicial scrutiny of the legality of detention by criteria which are too vague to be capable of objective determination. This would include an attempt to make the length of detention at any time dependent upon the unconstrained, and unascertainable, opinion of the Executive.
32 The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions explained above are met. One precondition is that detention in Australia will come to an end under s 198(1) as soon as reasonably practicable after the transitory person asks the Minister, in writing, to be removed from Australia. Another precondition is that the person no longer needs to be in Australia for the temporary purpose. This precondition arises from the operation of either s 198(1A), or s 198AD(2) read with s 198AH(1A)(c). As we have explained, it is unnecessary to determine whether the criterion by which this precondition is to be assessed is whether the need still objectively exists or whether an officer has formed a genuine opinion that the person no longer needs to be in Australia for the temporary purpose. The plaintiffs did not submit that there would be any difference to validity based upon which construction was correct.
33 The second reason why the plaintiffs alleged that the duration of detention led to invalidity was also based upon a misconception. The plaintiffs' submission that the temporal limits of detention are not connected with the limited permissible purposes of administrative detention assumed that the purpose of administrative detention in Australia was for medical treatment. Alternatively, the submission assumed that if the purpose of administrative detention was for removal it would be unlawful for the duration of detention to be predicated not on the effectuation of removal itself, but on an apparently unrelated factum: the need to be in Australia for the medical treatment. As we have explained above, the detention was for the purpose of removal from Australia when preconditions are met, including where there is no longer a need for the transitory person to be in Australia for the temporary purpose. The detention does not become an exercise of judicial power merely because the precondition, and hence the period of detention, is determined by matters beyond the control of the Executive. This will frequently be the case where, for instance, questions arise as to whether it is reasonably practicable to remove a person from Australia.
(footnotes omitted)
62 In this proceeding the Respondents do not submit, as they did in Plaintiff M96A/2016, that the list of permissible purposes of executive detention might extend beyond the three lawful purposes identified in Plaintiff S4/2014. I therefore proceed on the basis that Mr Gilbert is correct to submit that this Court will be required to conclude that the Applicant's present detention is unlawful unless, at this point of time, his detention can properly be characterised as being for the purpose of securing him to be available to be taken to a regional processing country.
63 The critical question therefore is whether, in circumstances in which it is claimed that there is no realistic prospect that the Applicant will be able to be taken to a regional processing country once his need to be in Australia for the temporary purpose for which he has been brought here comes to an end, but before it has, whether the Applicant's continued detention before the deferred duty to take him to such a regional processing country arises can continue to be so characterised.
64 Albeit with some hesitation, I accept it can be.
65 I will expand on my reasons for having reached that conclusion later but before I turn to that I should interpolate that I accept the submission advanced by the Applicant that he is entitled to have his claims for protection in respect of Nauru determined and, if found to be well founded, not to be refouled to Nauru. I accept that as defined by s 5(1) of the Migration Act, Australia's non-refoulement obligations include those arising because Australia is a party to the Refugee Convention and/or the ICCPR as well as any obligations accorded by customary international law as are of a similar kind: Ibrahim v Minister for Home Affairs [2019] FCAFC 89
66 Those obligations extend to Nauru as they do to any other nation. I record that I am entirely unpersuaded of the submission the Respondents advanced that the scheme of the Migration Act requires a conclusion that any claims the Applicant might seek to advance that he is owed non-refoulement obligations with respect to Nauru could not stand in the way of his being taken to Nauru pursuant to s 198AD of the Migration Act. Having had the benefit of full argument on the subject, I am satisfied that the Applicant's submission must be accepted that the omission in s 197C of the Migration Act of a reference to s 198AD is not open to be dismissed as a mere drafting oversight. That is so notwithstanding the Migration Act does not provide a statutory mechanism to determine such a claim. That the need to do so was not anticipated is hardly surprising. I take it to be a matter of common knowledge within the meaning of s 144 of the Evidence Act 1995 (Cth) that the large influx of unauthorised maritime arrivals which prompted the passage of Part 2 Division 8 Subdivision B of the Migration Act did not include those fleeing from either of the two countries later designated as regional processing countries. That a statutory mechanism has not been provided for does not mean the right to have such a claim determined does not exist. The proposition that an assessment of the Applicant's claims would be capable of being administratively facilitated if required was the foundation premise of the Respondents' submission referred to at [58] above.
67 That stated I return to why I am persuaded that the Respondent's second primary submission is to be accepted.
68 It is uncontentious that the purpose of immigration detention is to be assessed objectively by reference to all of the circumstances. The objective circumstances as revealed in these proceedings reflect badly on the want of urgency of those who, in the past three years, were responsible for the Applicant's medical treatment while in Australia for that temporary purpose. It is not in dispute that although the Applicant was provided with some basic medical treatment, his underlying condition was never investigated by a specialist and he remains yet to be fully treated.
69 That acknowledged the Applicant does not dispute that he presently remains in need of medical treatment for his gastrointestinal issues. Mr Gilbert accepts that the temporary purpose for which he was brought to Australia remains to be satisfied. It is not suggested that the specialist treatment the Applicant requires will henceforth not be provided in a timely way.
70 Assessed objectively the temporary purpose for which the Applicant was brought to Australia remains presently operative.
71 In respect of the purpose for which the Applicant is presently detained I accept that too must be assessed objectively. However in that regard I accept Mr Tran's submission that the reasoning of the plurality and that of Gageler J who concurred in the outcome but delivered separate reasons in Plaintiff M96A/2016 both support the second primary submission advanced by the Respondents.
72 Drawing on what the plurality states at [33], Mr Tran submits that "the duty to remove is only triggered after the temporary purpose is complete or when a request to remove has been made." It is convenient therefore to set out that passage:
33 The second reason why the plaintiffs alleged that the duration of detention led to invalidity was also based upon a misconception. The plaintiffs' submission that the temporal limits of detention are not connected with the limited permissible purposes of administrative detention assumed that the purpose of administrative detention in Australia was for medical treatment. Alternatively, the submission assumed that if the purpose of administrative detention was for removal it would be unlawful for the duration of detention to be predicated not on the effectuation of removal itself, but on an apparently unrelated factum: the need to be in Australia for the medical treatment. As we have explained above, the detention was for the purpose of removal from Australia when preconditions are met, including where there is no longer a need for the transitory person to be in Australia for the temporary purpose. The detention does not become an exercise of judicial power merely because the precondition, and hence the period of detention, is determined by matters beyond the control of the Executive. This will frequently be the case where, for instance, questions arise as to whether it is reasonably practicable to remove a person from Australia.
73 Mr Tran's submission is that that reasoning recognises that while the two purposes are not to be conflated, they are not unrelated. I accept that submission. On that basis I am entitled to accept that unless the precondition for the Applicant's removal has been satisfied, in Mr Tran's words "there is no extant duty to remove. It hasn't been triggered. It's in suspension…".
74 Gageler J's concurring but independently expressed reasoning is to the same effect:
38 …The question of whether the duty to remove is triggered is in that respect separate from, and anterior to, the question of what is required of an officer to remove the person from Australia as soon as reasonably practicable in the performance of the duty once triggered.
…
45 As to the second, the duration of the detention is capable of objective determination by a court at any time and from time to time. From the moment of the commencement of the detention under s 189, duration of the detention is made by s 196(1)(a) and (aa) to depend on performance of the duty to remove imposed by s 198(1A) or by s 198AD(2). Whether or not the duty to remove has been triggered from time to time turns under s 198(1A) or s 198AH(1A) on the objective question of whether the temporary purpose identified at the time of the person being brought to Australia under s 198B any longer exists. That is the question which, in the event of dispute, arises for the determination of a court.
75 I regard it as necessarily implicit in such reasoning that so long as that duty, in the language of the plurality, remains in suspension prior to "various preconditions [being] met", the detention of a person in the position of the Applicant remains objectively for the purpose of securing his availability for later removal.
76 For the reasons given by the plurality at [32], the lawfulness of the Applicant's detention while a transitory person in Australia for the temporary purpose for which he was brought into the country remains capable of being assessed as at any particular moment of time:
32 The duration of the detention of transitory persons who are detained under s 189 of the Act is able to be objectively determined at any time, and from time to time. At any time it can be concluded that detention in Australia will conclude if any of the various preconditions explained above are met. One precondition is that detention in Australia will come to an end under s 198(1) as soon as reasonably practicable after the transitory person asks the Minister, in writing, to be removed from Australia. Another precondition is that the person no longer needs to be in Australia for the temporary purpose. This precondition arises from the operation of either s 198(1A), or s 198AD(2) read with s 198AH(1A)(c)…
77 I do not take those observations to confine the circumstances in which a temporary purpose as lawfully suspends the otherwise duty to remove might be brought to an end. But the contrary is the factual position in this proceeding and so long as the temporary purpose remains operative, the corollary is that the Applicant's detention remains objectively for the purpose of his being later removed to a regional processing country.
78 I therefore accept Mr Tran's second primary submission that there is a lawful basis for the Applicant's present detention.
79 Subsequent to my preparing these reasons in draft and their proofing I have become aware of the decision of the Full Court in AOU21 v Minister for Home Affairs [2021] FCAFC 60. I am satisfied that although that judgment addresses similar circumstances they are not analogous and that there is nothing in the Full Court's reasoning as would compel a different outcome in respect of the orders I will make.
80 It is unnecessary for the Court to resolve the dispute between the parties as to the admissibility of those parts of Mr Kazatsky's affidavit to which objection was taken: see above at [35]. Neither do I need to make findings as to whether the Supreme Court of Nauru has demonstrated any final and conclusive disposition not to hear the Appellant's remitted appeal such that his return for the processing of his claims would be a sham. Nor do I need to decide whether Papua New Guinea remains a potential receiving country in the alternative to Nauru. Any submitted for impediments to the Applicant's removal are to be addressed, on the expiry of the temporary purpose, when the Applicant's claims for protection with respect to potential refoulement become re-engaged. Upon the precondition for his removal having been satisfied such claims as he advances in respect of non-refoulement can be assessed and determined in the light of the actual circumstances applying at that time.
81 I refuse the order sought. Unless a different order is applied for within seven days of the publication of these reasons the Applicant is to pay the Respondents' costs as agreed or in default of agreement, as taxed.
I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kerr.