Ground 2
78 The appellants accepted the primary judge was correct (at [134]-[135]) to identify the definition of "immigration detention" in s 5 of the Act as contemplating three distinct kinds of custody, and to identify the first form of detention as "short term". His Honour said:
The Act establishes three forms of "immigration detention". They cover different, although overlapping, territory. The first form, in paragraph (a) of the definition of "immigration detention" in s 5(1), involves an unlawful non-citizen being "in the company of, and restrained by" an officer or other authorised person. The second, in paragraph (b) of the definition, requires the person to be "held" by, or on behalf of, an officer, in a detention centre; or in a prison or remand centre; or in a police station or watch house; or on a vessel (where s 249 applies); or in another place approved by the Minister.
The difference between the first form and the second form may be illustrated by using an example of an unlawful non-citizen who is in immigration detention when "held" in a detention centre and remains in immigration detention while "in the company of, and restrained by" an officer when taken to a hospital. It can be accepted that the first form will generally be used in the short-term, whereas the second form may be used for both short-term and longer-term detention.
79 The third form, to which the primary judge referred, was a residence determination made under s 197AB of the Migration Act. In summary, that provision confers a personal power on the Minister, if the Minister thinks it is in the public interest to do so, to make a determination to the effect that a specified person is to reside at a specified place. That form of detention was clearly not in issue in the respondent's case.
80 On the primary judge's analysis, the detention arrangement orders related to the first form of detention. His Honour found (at [142]) that he had not:
been referred to any authority which dictates that the Court cannot, under the power conferred by s 23 of the FCA Act to make orders that are appropriate, direct that officers are to detain an unlawful non-citizen at a particular place using the first form of immigration detention.
81 The appellants submitted that the detention arrangement orders were not "short term" orders, but were potentially of a longer duration. The detention arrangement orders also specified the location of the detention and were prescriptive. In substance, the appellants submitted they were orders in respect of the second form of detention, which the primary judge recognised (see especially at [140]) was not a form of detention the Court could compel the Minister to observe.
82 We accept the appellants' submissions. In substance, by those orders, the primary judge determined a "place" of detention (the address set out in the affidavit of Anette Hermann filed on 8 September 2021), and determined that the respondent should be "held" in that place ("detained at that address"). At [165], the primary judge found it might take "weeks, or months, or longer" before the respondent would be removed to Nauru. These orders could not be described as short term, especially given the delays to this point in any action being taken by the executive about the respondent's circumstances.
83 Further, the text of the definition also indicates that it was erroneous for the detention arrangement orders to be characterised as falling within para (a) of the definition of 'immigration detention'.
84 The textual distinctions between paras (a) and (b) of that definition are critical, and disclose the very different circumstances of deprivation of liberty authorised by paras (a) and (b), read with s 189 and s 196 of the Act.
85 "[B]eing in the company of, and restrained by" in para (a) concerns temporary, transitory custody, hence the use of the word "company". That definition does not focus on the prescription of a place where a person is detained; rather, it looks to the presence of a detainer, who is the person with a capacity, and lawful authority, to restrain an individual. The first and obvious situation in which this aspect of the definition of "immigration detention" would be engaged is when an individual is first detained under s 189 of the Act. At that point, it is highly likely a person will not be in a place of detention, but will be in a public or private location. However, for the "arrest power" in s 189 to operate, there will need to be a person present who is either an officer or falls within sub-para (a)(ii). Being "in the company of" an officer (or a person who falls within para (a)(ii)) enables a person to be taken to a place of detention by that officer, or other officers.
86 Examples such as those given by the primary judge at [137] about an individual requiring surgery may well be covered by (a), insofar as transit to and from a hospital is concerned, and perhaps insofar as a short term stay in hospital is concerned. However, in this example there will come a point where the transitory nature of (a) is exhausted and an individual is, in substance, being "held" in a particular location. If and when that occurs, the detention ceases to be authorised by para (a), and the place of detention must fall within the terms of para (b).
87 In contrast to the term "in the company of", para (b) of the definition of immigration detention uses the term "held by or on behalf of". The verb "held" indicates custody in a place, a meaning confirmed by sub-paras (i)-(v) in (b), all of which focus on the location at which a person is to be kept. The detention arrangement orders are properly understood as being orders within para (b), not para (a), and there being no approval by the Minister under (v), and no suggested application of sub-paras (i)-(iv), the detention arrangement orders fell outside the terms of para (b). The primary judge correctly understood he could not make orders compelling a form of immigration detention covered by para (b). Yet, in substance, that is what he did.
88 In [144] of his Honour's reasons, the primary judge made the following findings about immigration detention falling within para (a) of the definition:
Under the first form of immigration detention (an unlawful non-citizen being in the company of, and restrained by an officer) it is for officers to decide where the person is to be detained. Further, it is for officers to determine whether that form of detention will be used. The Minister does not make such a determination, or is at least not conferred with the exclusive power to make that determination: cf. WKMZ v Minister for Home Affairs [2020] FCA 1127 at [115]. These officers are the same officers who are required to perform the duty under s 198AD(2) to take an unauthorised maritime arrival to a regional processing country.
89 Two matters arise from this finding. First, it may not be correct that the form of immigration detention in para (a), in terms of location, is determined by the officers. Visits to a medical centre, or taking a detained child to school - both forms of immigration detention covered by para (a) in our opinion - are not locations determined by the officer concerned. Paragraph (a) is not about location at all: it is about temporary or transitory custody by an officer; if anything, it is purposive in character.
90 Second, even if it was "for officers to determine whether that form of detention will be used" under para (a), the detention arrangement orders take that decision-making out of the control of Commonwealth officers and place it in the hands of the Court.
91 Orders that completely remove the capacity of those legally responsible for the detention of an individual to determine where that individual should be held were disapproved by the Full Court in Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour [2004] FCAFC 93; 259 FCR 576. At [139], Lander J (with whom Finn and Selway JJ agreed) stated that a "mandatory injunction" (on an interlocutory basis) was inappropriate. The Full Court reframed the interlocutory order so that it was expressed in the negative: that is, precluding Mr Mastipour's detention at certain facilities (Baxter and Port Hedland detention centres) (at [143]). As Lander J stated at [141]:
Both counsel, however, accepted that the spirit of the order was that Mr Mastipour be removed to one of those places and kept there. If that is the way in which the order should be read, it would mean that the Secretary could not move Mr Mastipour to a hospital or to some other Detention Centre. Again, if the order was understood in the way that counsel accepted, it might mean that the Secretary was not able to remove Mr Mastipour from Australia if the occasion arose for a power to be exercised under s 198 of the Act. The order sought was an interlocutory order. The terms of the order made were more akin to a final order. For those reasons, the terms of the order were inappropriate.
92 His Honour continued at [144]:
That order will leave the Secretary free to detain Mr Mastipour at an appropriate place whilst he is subject to immigration detention. It will also give the Secretary the flexibility to move Mr Mastipour if that is required.
93 In this decision, both Finn and Selway JJ expressed concern (respectively at [2] and [18]) at the "vacuum" that existed in the legislative scheme of the Migration Act concerning the manner and conditions of immigration detention. That vacuum persists. What we have said above should not be taken as a finding that there is unlimited power or authority to hold an individual in immigration detention wheresoever and howsoever the repository of the power may choose. For example, Mastipour itself is authority for the existence of a duty of care owed to those detained under the Migration Act. The limits on such decision-making need not be pursued in these appeals. The important point from Mastipour, on the question of the proper construction of the definition of "immigration detention", is that both para (a) and para (b) contemplate some level of decisional freedom for the detainer in the form of detention that is appropriate at any given time, and for any reasonable and lawful purpose. The approach taken by the primary judge removed that decisional freedom, contrary to Parliament's intention about the flexibility likely to be required within a system of mandatory detention such as that under the Migration Act, including to ensure that the duty of care acknowledged in Mastipour can be discharged.
94 It is also important to recognise that para (a) employs the phrase "being in the company of, and restrained by" (emphasis added) an officer, or a person within sub-para(a)(ii). Restraint in this context means lawful restraint, but it encompasses the use of such force, viewed objectively, as is reasonably necessary in the circumstances: see the definition of "detain" extracted above at [34]; and see also ARJ17 v Minister for Immigration and Border Protection [2018] FCAFC 98 at [73], Rares J. Read together and within their limits, these definitions authorise what would otherwise be tortious conduct, for the sole purpose of carrying into effect the scheme of executive detention for which the Migration Act provides. The definitions plainly contemplate that those who are authorised to restrain an individual, and to use force if reasonably necessary, will be subject to direction and control by the executive, rather than being mere members of the community such as the Hermanns. We accept the primary judge is correct in [136] of the reasons to observe that the statutory context in which the verb "restrain" is used throughout the Migration Act suggests it may not be limited to "direct physical restraint", but rather includes a variety of constraints on a person's liberty and freedom of movement. Nevertheless, in the particular context of the definition of "immigration detention", and read with the definition of "detain", para (a) is contemplating a form of deprivation of liberty that extends to the use of reasonable force where reasonably necessary, but for a short period of time or temporary purpose.
95 The detention arrangement orders contemplate that an officer, or officers, would reside at the Hermanns' house with the respondent. At [161] of the reasons, the primary judge said:
If the applicant is to be required to be detained in the home of one of his supporters, it should be Ms Hermann's home. Ms Hermann's home has six bedrooms, which should be large enough to accommodate the applicant and one or more officers to guard him. It also has the advantage of being in Perth, so that transport of the applicant from the Perth Immigration Detention Centre should be less complex than transporting the applicant to Brisbane.
96 And at [168]:
The respondents submit that Ms Hermann's evidence fails to demonstrate that she and her husband are willing to have two or three officers in their home at all times. I understand this submission to refer to Ms Hermann's statement that she is content for […] "a guarding officer to remain stationed on our property". It is too pedantic a reading of Ms Hermann's affidavit to suggest that she is saying that she is willing to have one officer stationed at her home, but not more than one. It is unsurprising that the affidavit would emulate the language of the Act, which uses the singular, "an officer". It is also a misreading of Ms Hermann's evidence to suggest that she is not willing to have officers inside her home, when she expressly states that she will make available ablution facilities needed by any officer. I also observe that this submission was not foreshadowed, so the applicant did not have the opportunity to meet it through further evidence.
97 Also at [172]:
I intend that the applicant be detained within the external boundaries of the property, rather than being confined to the house itself.
98 It is not apparent how, if these were the proposed arrangements, the respondent was to be considered "restrained" by the officer or officers. While, taking an extended approach, it might be said he was "in the company" of the officers because he was in the same house, para (a) authorises detention by an officer who has an individual in their company and is restraining them. It is not apparent how an officer, who is by the Court's orders indirectly compelled to reside in a private residence, on private property, could be described as "restraining" the respondent, and how any "restraint" was, in a practical sense, to be exercised. This is not a visit to a location such as a medical centre or school, or even a visit to a private property, where an individual would plainly be under the control of the officers in terms of being brought to a place, supervised while at a place, and taken away from a place, and would be subject to their restraint throughout. This is a longer-term living arrangement, including for members of the community who reside there, as well as officers and the respondent, all of whom would be living and sleeping in the house. The comings and goings of members of the public other than the respondent and the officers in and out of the house and the property would be subject to decisions by the Hermanns. It would seem likely the officers themselves might also have had limits placed on them by the Hermanns, about where on the Hermanns' property, and in the Hermanns' house, they might have been able to go. A longer term living arrangement of this kind, mixed as between members of the public and officers of the Commonwealth, and an individual intended by Parliament to be deprived of his liberty, is not an arrangement which can be characterised as "being in the company of, and restrained by" those officers. Neither the officers nor their superiors have any control over the premises or the property, and they would at least in some respects be subject to long-term direction by the Hermanns, it being their private residence.
99 The primary judge erred in seeing this arrangement as falling within the terms of para (a) of the definition of immigration detention. That paragraph is directed at much more transitory and temporary circumstances, likely purposive, where the officers concerned can retain more direct and immediate control over the detained individual.
100 For that reason, ground 2 should be upheld. The detention arrangement orders were made on a misunderstanding or misapprehension about the proper construction of para (a) of the definition of "immigration detention".
101 Although we have not characterised the critical error of the primary judge in this way, we consider the appellants were also correct to submit that the power in s 23 of the FCA Act did not extend to making the detention arrangement orders. We consider it was erroneous for the primary judge to characterise the detention arrangement orders as ancillary to mandamus, and therefore supported by s 23.
102 As senior counsel for the appellants accepted, there may be orders that can properly be characterised as ancillary to an order in the nature of mandamus, and could therefore be made under s 23 of the FCA Act. There is no doubt s 23 is a wide power. It is conferred to ensure the Court can make those orders that are necessary to ensure the effective determination of a matter, or orders that are reasonably required or legally ancillary to ensuring the Court's order is effective according to its tenor: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [109], Keane, Nettle and Gordon JJ. See also Deputy Commissioner of Taxation v Huang [2021] HCA 43; 96 ALJR 43 at [16] (Gageler, Keane, Gordon and Gleeson JJ).
103 In this case, the question is how the detention arrangement orders were reasonably required to ensure mandamus was effective. The mandamus order was intended to compel the executive, through its officers, to perform the removal duty in s 198AD(2), by taking the respondent to a regional processing country as soon as reasonably practicable. Making an order about detaining the respondent at the Hermanns' house was not reasonably required to make the mandamus order effective. Contrast, for example, an order about re-locating an individual to a particular immigration detention centre to facilitate removal, or to ensure adequate communications with that individual and their lawyers so as to facilitate removal.
104 Nor were the detention arrangement orders legally ancillary to the mandamus order. They did not advance or support the performance of the removal duty in s 198AD(2). Contrast, for example, an order concerning adequate communications between the officers charged with removing an individual (and thus complying with the mandamus order) and any medical practitioners treating an individual who may need to be consulted about the conditions under which an individual was to be removed. These examples are not intended to be exhaustive or prescriptive, but rather to illustrate how s 23 may have proper application when the Court makes an order in the nature of mandamus in these circumstances.
105 The detention arrangement orders constituted a remedy without any connection to the mandamus order. They are instead based only on consideration of the personal circumstances of the respondent, in particular his mental health issues and the already extraordinary length of time over which he had been deprived of his liberty, and not on the (required) sufficient connection between those circumstances and the respondent's lawful removal from Australia. Even if there had been no misconstruction of para (a) of the definition of "immigration detention", we would have accepted the appellants' submissions that the detention arrangement orders are not supported by s 23 of the FCA Act.
106 The respondent's submissions are not assisted by reliance on Mastipour. In that proceeding, the applicant sought damages for breach of a duty of care in relation to the circumstances of his detention, including damages for being held in solitary confinement. As part of final relief, the applicant also sought orders that he be transferred to a different immigration detention facility, being one appropriate to his own circumstances. Prior to trial, and on an interlocutory basis, the primary judge in Mastipour had ordered the applicant be transferred to another immigration detention centre. The Secretary challenged the making of this order before the Full Court. The Full Court upheld the primary judge's decision (subject, importantly, to correcting the form of the order, as we have explained above). Justice Lander (with whom Finn and Selway JJ agreed) said (at [128]-[133]:
The primary judge found that there was a serious question to be tried. He said: "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".
It was because of the finding that there was a serious question to be tried in respect of that issue that the primary judge made the order which he did.
On this appeal, the Secretary argued that the primary judge's finding meant that the Court had intervened not in relation to the lawfulness of the immigration detention as such, but for the purpose of determining what precise place or circumstances of detention are lawful and what are unlawful.
In my opinion, that argument misconceives the primary judge's approach.
The primary judge, in my opinion, properly recognised that the application for an injunction was dependent upon Mr Mastipour establishing that there was a duty of care. Once he established that there was a duty of care which, as I say, is admitted, the question for the trial judge was whether there was a serious question to be tried in relation to the breach of that duty.
There can be no doubt that if there was a serious question to be tried in relation to the continuing breach of duty by the Secretary, the balance of convenience favoured Mr Mastipour, notwithstanding Mr Wallis' protestations that it would not be viable to move Mr Mastipour to another Detention Centre.
107 This was an orthodox approach to the grant of interlocutory relief, where the applicant sought final relief of the same kind, based on the content of the duty of care he alleged existed (and which was admitted), and the alleged breaches of that duty. The interlocutory orders were thus compatible and consistent with the final relief sought, and were made out on the usual basis, as the Full Court held. There is no analogy with the detention arrangement orders, which could not have been sought by way of final relief, since the principal relief sought by the applicant in the present proceeding was removal from Australia. The detention arrangement orders, while undoubtedly intended to address what appeared on the uncontested evidence to be the dire circumstances of the respondent, were unconnected with the respondent's cause of action.
108 Nor does the decision in WAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1625 assist the respondent's submissions in supporting the approach taken by the primary judge. At [125] of the reasons, the primary judge extracted [56] from the judgment of French J (as his Honour then was) in WAIS, being the passage on which the respondent relied in the appeal. At [56], French J said:
The remedy for a failure in the discharge of that duty may be mandamus, possibly directed to the Minister. And it may be that, as an incident of such a mandatory order, the Court might direct conditions of detention which are calculated to minimise the harm suffered by the detainee as a consequence of the delay in effecting removal.
109 That statement must be read in the context of the issues in WAIS. That was a case where the applicant, an Iraqi national, had requested removal from Australia, but had not been removed. There was a debate on the evidence about whether there was any real likelihood he would be removed, although the Minister contended all reasonable efforts were being made and there was such a likelihood. The case was decided before Al-Kateb v Godwin [2004] HCA 37; 219 CLR 562, and at a time where on the (then recent) authority of Al Masri v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1009; 192 ALR 609, followed in Al Khafaji v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1369, there were said to be temporal and purposive limits on the authority in s 196 of the Migration Act to keep an individual in immigration detention. Ultimately, French J rejected the applicant's contentions about his factual circumstances falling within these authorities.
110 However, at [56], French J doubted the correctness of Al Masri, and by extension, Al Khafaji. In passages prescient of both Al-Kateb and AJL20 HCA, his Honour described the language of s 196 as "intractable" and noted the availability of mandamus.
111 Having made this observation, his Honour went on to make the observation extracted by the primary judge and quoted at [108] above.
112 In this passage, his Honour is speaking of "conditions" of detention, not the location of detention. Further, there is nothing in this passage that suggests his Honour had in mind a form of detention other than detention at an immigration detention centre. In our opinion, his Honour's observation was more likely directed at the kind of concerns that occupied the Full Court in Mastipour.