MZYYR v Secretary, Department of Immigration and Citizenship

JUDGE: GORDON J DATE: 28 JUNE 2012 PLACE: MELBOURNE

INTRODUCTION 1 The Applicant is a 29 year old Faili Kurdish man who has spent most of his life in Iran. Since his arrival in Australia on 18 August 2010, he has been detained pursuant to the Migration Act 1958 (Cth) (the Act). He is currently in immigration detention at the Melbourne Immigration Transit Accommodation (MITA). He was transferred to MITA on 17 May 2012 from the Maribyrnong Immigration Detention Centre. 2 The Applicant has mental health needs. On 20 June 2012, the Applicant filed an application pursuant to s 39B of the Judiciary Act 1903 (Cth) against the Secretary, Department of Immigration and Citizenship (the Secretary) and the Commonwealth of Australia (the Commonwealth) (collectively the Respondents) seeking damages and a permanent injunction: … to restrain a continuing tort in relation to the failure to remove the Applicant from immigration detention and to require the Respondents to provide the Applicant with adequate accommodation and treatment to meet his mental health needs. (Emphasis added.) 3 The Applicant also sought the following interlocutory orders: (1) … injunctions against the [Secretary and the Commonwealth] restraining them … from placing or keeping the Applicant in non-residential places of detention and from so detaining him as to prevent or inhibit his access to immediate assessment, treatment and supervision by suitably qualified mental health workers. (2) … interlocutory injunction … restraining the [Secretary] and the [Commonwealth] … from subjecting the Applicant to conditions that will or are likely to cause to continue, or aggravate, the Applicant's psychiatric and / or medical conditions, in the course of detaining him or imposing upon him the requirements of s 197AB(2) of the [Act]. (3) That it be deemed sufficient compliance with Order 1 that steps are forthwith taken to ensure that within three days: (a) the Applicant be provided with accommodation other than at the [MITA], Christmas Island Detention Centres, Darwin Detention Centres or any detention facility that fails to [sic] the mental health needs of the Applicant; (b) that the Respondent [sic] detain the Applicant under the [Act] in facilities that are consistent with the medical needs of the Applicant. (4) For the avoidance of doubt, nothing in these orders is intended to restrict the powers of the [Secretary] and the [Commonwealth] to detain the Applicant in accordance with the [Act]. (Emphasis added.) The Minister for Immigration and Citizenship (the Minister) is not a party to these proceedings. 4 The present interlocutory application is not for a residence determination by the Minister under Subdiv B of Pt 2 Div 7 of the Act. The Minister presently has before him a request for such a determination which the Court was told he will consider by 31 August 2012. Instead, the substance of the relief sought by the Applicant was that the Respondents be compelled to place him in a form of detention which would provide him with "adequate … treatment to meet his mental health needs." 5 The Respondents opposed the orders. They submitted the orders should not be made because: 1. there is no evidence of a continuing tort; 2. the orders sought are imprecise and confusing; 3. there is no concrete proposal identified for an alternative place or form of immigration detention which would appropriately meet the Applicant's mental health needs; and 4. the Court has no power to make orders the effect of which would be to compel the Applicant's release from immigration detention, the making of a residence determination or the determination in writing of some other place of detention. The Respondents submitted that the orders sought by the Applicant infringed those limitations. 6 For the reasons that follow, I would not grant the Applicant the interlocutory relief he seeks. I would, however, grant a limited form of interlocutory relief designed to prevent the commission of a continuing tort which, prima facie, is occurring.

LEGAL FRAMEWORK 7 This section of the reasons for judgment addresses two distinct areas. First, there are the principles applicable to the grant of interlocutory relief. Those principles were not in dispute. The Applicant must establish that: 1. there is a prima facie case (ie, a sufficient likelihood of success) that the Applicant will be held entitled to final relief of the kind now sought; and 2. the balance of convenience favours the grant of the relief. Namely, whether the inconvenience or injury which the Applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the Respondents would suffer if an injunction were granted, see Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [19] and [65]-[72]. 8 Secondly, there is the relevant statutory framework and there are the common law duties owed by the Commonwealth to detainees. 9 The Respondents submitted that the statutory framework of the Act (in particular, ss 196(3), 197AB and sub-paragraph (b)(v) of the definition of "immigration detention" in s 5(1)) imposed limitations on the Court's powers. It is necessary to consider each of those provisions. 10 A non-citizen who is in the migration zone and who does not hold a visa is an "unlawful non-citizen": ss 13 and 14 of the Act. There is no dispute that the Applicant is an "unlawful non-citizen". There is no suggestion that the Applicant's current detention is unlawful. It was common ground that the Court does not have the power to order the release of a person who is lawfully detained: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [105]. 11 Given that the Applicant is an "unlawful non-citizen" who is present in the migration zone any "officer" (as defined in s 5 of the Act) who reasonably suspects that the Applicant is an unlawful non-citizen is both authorised and required by s 189(1) of the Act to detain him. "Officer" relevantly includes an officer of the Department of the Executive Government of the Commonwealth for the time being administering the Act: definition of "officer" in s 5(1) of the Act and s 19A of the Acts Interpretation Act 1901 (Cth). "Detain" is defined in s 5(1) to mean to take into "immigration detention" or to keep, or cause to be kept, in "immigration detention". 12 The Court has no power to order the Applicant's release from "immigration detention": s 196(3) of the Act and see, eg, Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249 at [106], [113] and [137]-[138]. The fact that the Court cannot make such an order is not in dispute. 13 Section 5(1) defines "immigration detention" as: (a) being in the company of, and restrained by: (i) an officer; or (ii) in relation to a particular detainee - another person directed by the Secretary to accompany and restrain the detainee; or (b) being held by, or on behalf of, an officer: (i) in a detention centre established under this Act; or (ii) in a prison or remand centre of the Commonwealth, a State or a Territory; or (iii) in a police station or watch house; or (iv) in relation to a non-citizen who is prevented, under section 249, from leaving a vessel - on that vessel; or (v) in another place approved by the Minister in writing. 14 Section 273 of the Act deals with detention centres. It provides: (1) The Minister may, on behalf of the Commonwealth, cause detention centres to be established and maintained. (2) The regulations may make provision in relation to the operation and regulation of detention centres. (3) Without limiting the generality of subsection (2), regulations under that subsection may deal with the following matters: (a) the conduct and supervision of detainees; (b) the powers of persons performing functions in connection with the supervision of detainees. (4) In this section: "detention centre" means a centre for the detention of persons whose detention is authorised under this Act. It was common ground that the detaining and holding is both on behalf of the Commonwealth and by the Commonwealth: Ruddock v Taylor (2005) 222 CLR 612 at [114]; S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 at [205]. 15 The statutory scheme contained within ss 189 and 196 leaves to the Minister and officers to determine the places at which and the manner in which a person in immigration detention is to be detained. That power does not authorise detention in certain conditions: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [51]. 16 "Immigration detention" within the meaning of paragraph (b) of the definition in s 5(1) of the Act means the detainee has to be "held by, or on behalf of, an officer". Of course, the manner in which a detainee is "held" will depend on the circumstances of a particular case. 17 The Minister has power under s 197AB to make a determination that a person may reside at a place other than a place of immigration detention. While a residence determination is in force, the Act and regulations will apply as if the person is held in immigration detention: s 197AC. The Minister's powers under s 197AB of the Act exist only in respect of a person who is validly detained under s 189 of the Act: s 197AA. 18 The Court has no power to compel the Minister to make a determination under s 197AB of the Act that the Applicant reside at a place other than a place of immigration detention: see SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 at [108]. Indeed, the Court cannot compel the Minister even to consider the exercise of this power: s 197AE. Moreover, assuming a request were made to the Minister to approve some specific new place of immigration detention under the Minister's power in paragraph (b)(v) of the definition of "immigration detention" in s 5(1) of the Act, it has been held that it would not be a breach of the Commonwealth's duty of care for the Minister to fail to approve a new place of immigration detention: SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569 at [113]. 19 The Minister's office is currently seized of a submission in relation to the possible application of s 197AB to the Applicant. Counsel for the Respondents' submitted that the Applicant could be placed in the community under residence determination arrangements under s 197AB of the Act by 31 August 2012 depending on the following two events first occurring: 1. the Department developing an appropriate management plan and care arrangements for the Applicant, including but not limited to: the selection of an appropriate community detention services provider; the identification of suitable accommodation in the community; consideration of the appointment of a guardian for the Applicant for the purposes of ensuring his safety and well-being while he is in the community and for as long as such a person is required; and 2. the Minister choosing to exercise his public interest power under s l97AB to make a residence determination in respect of the Applicant. A third relevant circumstance is that the Applicant continue to demonstrate a low level of risk in his behaviour. 20 What then are the obligations of the Commonwealth to the Applicant? It was not disputed that: 1. The Commonwealth owes a duty of care to a person held in immigration detention to provide the person with the level of medical care which is reasonably designed to meet their health care needs, including psychiatric care: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 at [218]. 2. The Court has power, in an appropriate case, to restrain the Minister for Immigration and Citizenship's agents from causing a person's immigration detention to continue at a place or in a form that constitutes a continuing tort: Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 at [127]-[129] and [137], see also [1]-[4] and [14]; S v Secretary, Department of Immigration and Multicultural Indigenous Affairs (2005) 143 FCR 217 at [218] and [232]. This proposition hides more than it reveals: see [49] to [51] below. 21 The Commonwealth submitted that the Court's power under s 23 of the Federal Court of Australia Act 1976 (Cth) to grant interim and interlocutory injunctions to restrain an alleged continuing tort is affected by the statutory regime. The balance of these reasons for decision addresses the facts and the application of this legal framework to those facts.

BACKGROUND FACTS 22 The Applicant arrived in Australia by a suspected illegal entry vessel on 18 August 2010. He made application for a protection visa on 24 October 2010. On 12 April 2011, a Delegate of the Minister found he was not owed Australia's protection obligations. On 2 May 2011, the Applicant requested an Independent Merits Review (IMR). The IMR was conducted and, on 15 September 2011, the Reviewer recommended the Applicant not be recognised as a person to whom Australia has protection obligations. The Applicant has applied for judicial review of the IMR in the Federal Magistrates' Court. That application is listed for hearing before Whelan FM on 28 June 2012. 23 Since his arrival in Australia, the Applicant has been detained in a number of places: 1. 18 August 2010 - 25 August 2011: North West Point Immigration Detention Centre (Christmas Island); 2. August 2011 - 2 February 2012: Maribyrnong Immigration Detention Centre (Melbourne); 3. 2 February 2012 - 24 March 2012: Christmas Island; 4. March 2012 - 17 May 2012: Maribyrnong Immigration Detention Centre (Melbourne); 5. 17 May 2012 to present: MITA. It is common ground that each detention centre is operated by Serco, a detention service provider, and that at each detention centre health services are provided by International Health and Medical Services (IHMS), a health services provider. 24 Extracts of the Applicant's medical history whilst in detention were in evidence. Those extracts related to two distinct periods. The first period comprised typed notes of various events prepared by IHMS staff up to and including 12 March 2012 and a schedule of IHMS appointments with the Applicant from 18 August 2010. 25 It is unnecessary to set out in detail the Applicant's medical history or his mental health needs. For present purposes it is sufficient to record that the notes of the IHMS which were in evidence before the Court included the following statements: 1. 4 February 2011 - "[d]iscussed breathing and relaxation techniques … [u]nable to identify any particular trigger ... apart from ongoing environment and situation. No acute risk issues identified. …"; 2. 24 July 2011 - "[o]ngoing risk of deterioration in mental state due to prolonged detention. ... Referral to net [sic] visiting psychiatrist"; 3. 8 February 2012 - "Asperger like syndrome. Although there may be short term changes in behaviour, unlikely to respond to behavioural modification approach over long term. Restrictive environment likely to result in further incidents. Also likely to be vulnerable in detention environment to aggression from other clients"; 4. 6 March 2012 - "underlying developmental disorder or personality disorder which schizoid personality features ... on-going [sic] incarceration is almost certainly going to lead to further problems … community management should be considered a priority to remove him from the detention centre environment which seems to be driving his ... behaviour". As is apparent, those notes were made when the Applicant was detained at Christmas Island. The assessment on 8 February 2012 was by Dr Peter Young, the Head Psychiatrist at IHMS. 26 The second period covered the Applicant's detention in Maribyrnong and now MITA. That evidence comprised the balance of the schedule of IHMS appointments for the Applicant and three medical reports prepared at the request of, or provided to, IHMS. The first report, dated 16 May 2012, was from Dr Velakoulis, a neuropsychiatrist. The second, dated 4 June 2012, was from Dr Foot, a psychiatrist and the third, dated 18 June 2012, was from Ms Perry, an occupational therapist. 27 For present purposes, the report of Dr Foot is significant. Dr Foot saw the Applicant on 1 June 2012 at MITA. Dr Foot concluded that: … [The Applicant] does not have any Developmental Disorder, but is a product of his culture and predicament in which that places him both within his homeland and in Australia. I believe that it is likely that many of the incidents which have occurred are a result of his inability to cope with the personal and environmental adversities with which he has been confronted in Immigration Detention. It is my opinion that [the Applicant] is likely to function more productively if given access to a less restricted but supported environment, and I think it unlikely that he would pose a risk to the community under such circumstances. The occupational therapist assessed the Applicant on 14 June 2012 and concluded that there were no issues identified which would prevent the Applicant from living independently. Her only recommendation was that the Applicant be "provided further information in regards to government and community services available to him in Australia to assist with his integration". 28 The Applicant also produced three reports from Professor Newman, a psychiatrist, who is the Director of the Centre for Developmental Psychiatry and Psychology at Monash University. Her first two reports were dated 2 and 29 May 2012. They both related to a single assessment of the Applicant on 13 April 2012 at Maribyrnong. 29 The latest report from Professor Newman is dated 27 June 2012. In her latest report, Professor Newman states: I have previously examined [the Applicant] and have provided reports on my assessment. I have recommended that he be released into community detention where he would be able to receive specialist psychological and support services unavailable in immigration detention. … (1) [The Applicant] suffers from a neurodevelopmental disorder with intellectual impairment and features of Pervasive Developmental Disorder. He exhibits features of frontal lobe dysfunction with poor frustration tolerance, impulse control problems and mood dysregulation. He has difficulty controlling his behaviour and is easily angered and distressed. He has limited understanding of his situation and problems. The environment of the immigration detention facility is one that he finds difficult to tolerate. He has impaired social interaction and suffers extreme anxiety in this crowded environment. Further, he has experienced trauma whilst in detention, including sexual assault, aggression and tormenting interactions. He is fearful and becomes agitated. He suffers ongoing post-traumatic anxiety. [The Applicant] has very limited coping capacities and easily becomes distressed and dysregulated. He cannot control his moods or anxiety symptoms and his condition is negatively impacted by ongoing detention. The mental health teams reviewing him have documented his deterioration in detention. (2) [The Applicant]'s condition requires specialist disability services unavailable in detention. Disability services include psychological support programs for individuals with developmental disorders, rehabilitation programs and support in developing independent living skills. Specialist psychiatric services for individuals with intellectual disability and neurodevelopmental disorders provide review of comorbid mental health problems and assess need for medication. [The Applicant] is not able to receive this treatment in MITA and is at risk of deterioration if his detention without treatment continues. I recommend his release into community detention and housing with appropriate level of support and residential care and service coordination. This should be organised in consultation with State Disability Services. (3) The mental health services currently available within the immigration detention system and at the MITA are general support services provided by mental health nurses and psychologists with visiting psychiatric services. These services are for the support of detainees with mental disorders, such as depression and anxiety. The staff are not specialised in neurodevelopmental disorders and I note that the head of Psychiatric Services for IHMS has advised the release of [the Applicant] into the community to allow him to assess [sic] specialist services. Whilst I am informed that [the Applicant] has settled since moving to the MITA and he informed me during a telephone discussion around two weeks ago that he was well, I attribute this to the staff at MITA being positive in their interaction with him relative to his reported difficulties with SERCO officers at MIDC. [the Applicant], as a consequence of his neurodevelopmental disorder, remains unable to regulate his behaviours and emotions and is likely to be easily frustrated and impulsive. I have been provided with a copy of the SERCO Behaviour Management Plan being used with [the Applicant]. As I have previously stated, the use of such plans is contraindicated with a patient such as [the Applicant] who cannot fully comprehend the plan and, as when placed in restrictive detention on Christmas Island, he is likely to deteriorate with a strict regime of restrictions and isolation. It is, in my view, very concerning that the plan is in operation and this is in opposition to all psychiatric opinions provided on [the Applicant]. Specialist disability services would not implement such a plan and would provide an appropriate reward system and avoid isolations as a method of managing difficult behaviour. (4) I note the affidavit of Ms.J.Mackin concluding that [the Applicant] is best accommodated at the Sydney residential housing facility. My view is that this accommodation cannot provide him with the specialist rehabilitation and treatment approach he needs and this option does not address his condition. (Emphasis added.) 30 In general terms, Professor Newman's opinion is that: 1. the Applicant suffers from a neurodevelopmental disorder with intellectual impairment and features of Pervasive Developmental Disorder where the second condition is exacerbated by his intellectual impairment; and 2. the Applicant is not able to receive the necessary specialist psychiatric services for an individual with an intellectual disability and a neurodevelopmental disorder at MITA and is at risk of deterioration if his detention without treatment continues. 31 Mr Scassera, an employee of the Department of Immigration and Citizenship and the Centre Manager of MITA, affirmed an affidavit in which he summarised the form of the Applicant's detention in the following terms: The Applicant currently lives in a single room in MITA. He is located in a single room. His living area contains a bathroom and laundry, a lounge and kitchenette. The Applicant has his own swipe card to enter his room. He also has exclusive use of the north courtyard. All meals are prepared in the communal kitchen and dinning [sic] area. The Applicant prepares his own breakfast in his kitchenette or in the communal kitchen. As the Applicant met all the requirements of his most recent Behaviour Management Plan, he was given full unrestricted access to the MITA. Only the Applicant and appropriate staff have access to the annexed room areas. Since his arrival at MITA, the Applicant is much calmer and more settled. He has positive interactions with other detainees and has been involved in very few incidents. This is a significant change to his earlier interactions. 32 As to the available treatment, Mr Scassera's affidavit states that the following health care arrangements are in place at MITA: 4.1. Health care services are overseen by a Regional Health Services Manager (RHSM) who is a qualified Registered Nurse with appropriate experience in managing the provision of health services in an immigration detention facility. 4.2. The RHSM, who is based at the Maribyrnong Immigration Detention Centre (MIDC), works with the IHMS Clinical Governance Team. 4.3. The current IHMS staffing model at the MITA provides for 1.0 full time equivalent (FTE) Clinical Team Leader, 2.3 FTE Registered Nurses, 0.16 FTE General Practitioner, 1.0 FTE Mental Health Team Leader, 1.0 FTE Mental Health Nurse, 1.0 FTE Counsellor, 1.0 FTE Psychologist, 1.0 FTE Immunisation Co-ordinator and 1.0 Clinic Administrator. A visiting Psychiatrist is also available once per week. 4.4. Health care services are provided between the hours of 9.00 am to 5.00 pm on weekdays. 4.5. Where IHMS considers that additional clinic services are required they can seek approval from the Department Centre Manager for additional clinic hours. 4.6. A separate telephone advisory service is available to assist with clinical issues or advice outside of clinic hours. Calls to this service are placed by Serco Officers. If urgent Serco will transport the client or call an ambulance that will take the client to closest accident and emergency centre (hospital). 33 Mr Scassera's affidavit does not address the statement by Professor Newman that the Applicant cannot receive the necessary medical services at MITA. The Respondents did not seek to file further material to address Professor Newman's third report. The Respondents were content for the application to be determined on the material before the Court.

Prima facie case? 34 What then is the position? There is no dispute that the Applicant is required by the Act to be kept in detention. There is no dispute that the Applicant has mental health needs. The Respondents submitted that there may be a dispute about whether the Applicant has a disability. 35 The issues therefore are the form of detention and the medical treatment available to the Applicant in that detention. Those issues are interrelated and must be considered in the context of the legal framework. 36 The latest report of Professor Newman expresses the opinions earlier identified. First, the Applicant suffers from a neurodevelopmental disorder with intellectual impairment and features of Pervasive Developmental Disorder where the second condition is exacerbated by his intellectual impairment. Second, whilst the Applicant is in MITA, he is not able to receive the necessary specialist psychiatric services for an individual with an intellectual disability and a neurodevelopmental disorder and is therefore at risk of deterioration if his detention without treatment continues. Professor Newman identifies the level and kind of medical treatment she considers the Applicant requires and which he cannot receive in MITA. Professor Newman was not cross examined by the Respondents. Although the Respondents only received her latest report at approximately 9.30am on 27 June 2012, the Respondents did not seek to challenge the views expressed in that report. That is not surprising. The Respondents accept that the Applicant has mental health needs and Professor Newman is a highly qualified psychiatrist. Indeed, she is the Chair of the Detention expert Health Advisory Group (DeHAG) which is convened by the Department of Immigration and Citizenship to provide the Department with independent, expert advice regarding the design, implementation and monitoring of improvements in detention health care policy and procedures. DeHAG members consist of representatives from health and mental health professional organisations and consumer group organisations. Moreover, Dr Velakoulis, the Director of Neuropsychiatry at the Royal Melbourne Hospital, assessed the Applicant on 16 May 2012 and provided a report on the same date in which he stated that the Applicant either has a pervasive developmental disorder or a personality profile within the schizoid spectrum. Dr Velakoulis concluded the Applicant "functions in the low-average intellectual range". 37 Dr Foot, another psychiatrist, prepared a report in which he concludes that the Applicant does not have any "Developmental Disorder". However, Dr Foot did not dispute that many incidents had occurred and that the likely cause of many of those incidents was as a result of the Applicant's inability to cope with the personal and environmental adversities with which he has been confronted in detention. Dr Foot concluded his opinion by stating that the Applicant is likely to function more productively if given access to a less restricted but supported environment and that he thinks it unlikely that the Applicant would pose a risk to the community under those circumstances. It is significant that Dr Foot's examination of the Applicant was the most recent examination undertaken by a psychiatrist and that his assessment was undertaken two weeks after the Applicant arrived at MITA. 38 Ms Mackin, the Acting First Assistant Secretary of the Detention Operations Division, has sworn an affidavit (the Mackin Affidavit) in which she stated that she "believes that the Applicant is being appropriately managed in terms of his health care needs at MITA" and that "while consideration is being given by the Minister to a potential residential determination, [she is] of the view that either MITA or [Sydney Immigration Residential Housing (SIRH)] are the preferred options". The Detention Operations Division has: … responsibility for the overall management of people held in facilities-based detention, in close partnership with Infrastructure and Services Division of the Department, case management and service providers. The Division comprises regional managers, who oversee the operation of detention facilities within their region and three Canberra-based branches, which undertake a range of support, coordination and oversight functions to support the operation of the immigration detention network. It will be necessary to return to consider the Mackin Affidavit later in these reasons. 39 The extracts of the Applicant's medical history whilst in detention provide a sufficient basis to conclude that the Applicant has mental health needs of a particular kind. Having regard to the material currently before the Court, I consider the Applicant has satisfied the Court that he has a prima facie case that as a result of his current immigration detention at MITA he is the subject of a continuing tort in that the Commonwealth, by detaining him at a place or in a way which does not provide medical care reasonably designed to meet or alleviate his mental health needs, is causing him injury. 40 As noted earlier, Professor Newman's report concluded that the medical treatment the Applicant requires to meet his mental health needs is not available in MITA or SIRH. Further, both Professor Newman and Dr Foot suggest, for different reasons, that the form and place of the detention exacerbates the Applicant's health condition. For the purposes of the present application it is unnecessary to make any finding about these issues. It is sufficient that the Applicant has established a prima facie case that the Applicant will be held entitled to final relief of the kind now sought. That is, that the Commonwealth has failed to exercise reasonable care to provide a level of medical care at MITA which is reasonably designed to meet the Applicant's health care needs and that his continued detention at MITA is at a place and in a form that exacerbates the harm to the Applicant. Indeed, for the purposes of this application, Counsel for the Respondents did not seek to contend otherwise. Whether that claim is established is a matter for final hearing.

Does the balance of convenience favour the relief sought? 41 This is the difficult issue. It is necessary to understand the evidence currently before the Court and the Respondents' position about what power, or to put it bluntly, the lack of power, the Court has when faced with this kind of situation. 42 Professor Newman and Dr Foot agree that a less restricted but supported environment is reasonably appropriate, even necessary, for the Applicant. The occupational therapist has provided a report that no issues were identified which would prevent the Applicant from living independently: see [27] above. 43 An appropriate question (but no means the only question) to be asked is what if any are the alternative forms of detention? 44 The Mackin Affidavit lists what are described as the "three main types" of detention facilities in Australia as follows: 5.1. Immigration Detention Centres (IDC) such as Villawood and Maribyrnong 5.2. Alternative Places of Detention (APODs) approved as a place of 'immigration detention' within the meaning of s 5(b)(v) of [the Act] such as … [MITA] and [SIRH] 5.3 community detention where a residence determination is made under s 197AB of the Act. … 45 MITA is a form of APOD. In relation to APODs, Ms Mackin's evidence is contradictory. For example in paragraph [20], her evidence was that: [g]iven that the Applicant is currently well settled at the MITA, familiar with his surroundings and the staff, the SIRH in my view is a less desirable placement to the MITA. However it would be a suitable place of detention for the Applicant as it would provide a supportive residential environment. There are children accommodated in the SIRH whose proximity the Applicant may find disruptive. 46 Then 20 paragraphs later, her evidence was that: Notwithstanding the facilities and support available to the Applicant at MITA, if a supportive residential environment is considered appropriate for the Applicant, the SIRH provides the best available option. In my view, MITA is the best available option if the Applicant is to remain in Melbourne. 47 Finally, her conclusion was expressed in the following terms: Taking into account all of the above considerations, I am of the view that a placement in the SIRH offers the most supportive residential facility available in the Applicant's circumstances. Alternatively, MITA arguably offers the best option from the perspective of support available from the community and the Applicant's friends. 48 Ms Mackin did not have access to the latest report from Professor Newman. As a result, her affidavit does not address the issues raised by this application - access to the level of medical care reasonably designed to meet the Applicant's health care needs by reference to the place and form of detention. In particular, Ms Mackin does not address Professor Newman's opinion that accommodation at MITA and SIRH "cannot provide [the Applicant] with the specialist rehabilitation and treatment approach he needs and this option does not address his condition". 49 There is, of course, the third type of detention - community detention pursuant to a residential determination under s 197AB of the Act: see [17] above. The Mackin Affidavit does not discuss that third form of detention. Why? Because the Respondents' position was that the Court has no power to order the Minister to make a determination under s 197AB of the Act and no power to compel the Minister to approve a specific new place of "immigration detention" under sub-paragraph (v) of paragraph (b) of the definition of "immigration detention" in s 5(1) of the Act. 50 Put another way, the Respondents submitted that it was not possible to craft an order which was certain in its terms and, at the same time, would satisfy the statutory regime. This is a serious issue. The logical consequence of the Respondents' submissions is that if a detainee held in an APOD is subject to a continuing tort (eg, a failure to take reasonable care to provide the person with the level of medical care which is reasonably designed to meet their health care needs, including psychiatric care) then the Court is without power to prevent the continuation of that tort because the Court has no power to compel the Minister to make a determination under s 197AB of the Act and the Court has no power to compel the Minister to approve a specific new place of "immigration detention" under sub-paragraph (b)(v). 51 What the Applicant seeks is an alternative form of detention. The evidence adduced to the Court demonstrated, to the requisite standard, that there was a prima facie case that the Applicant should be provided with an alternative form of detention of a particular kind. The difficulty is that the evidence did not disclose any "form" of detention between an APOD and community detention which, consistent with the statutory regime, could be the subject of an appropriate order. In A Child (by his next friend, Arthur) v Secretary, Department of Immigration and Citizenship (No 2) [2011] FCA 1519, the interlocutory order was a "best endeavours" order in the following terms: The Commonwealth, in its role as the entity in charge of the form of immigration detention in which the Applicant is placed, do use its best endeavours forthwith to place the applicant in a form of immigration detention in Melbourne in the State of Victoria which provides a supportive residential or family based environment. The Respondents submitted that this form of order was in substance an indirect way of ordering the Minister to take a step which the Court did not have power to directly order the Minister to take. As noted above, the Minister is not a party to the present proceedings. 52 In the present case, I am not persuaded that it is possible to craft an order in precise terms which would result in the Applicant being placed an alternative form of detention of a particular kind. The "alternative" detention provider identified by the Applicant provides community detention facilities. The Act requires a determination by the Minister in relation to the Applicant for such a form of detention. That determination has not yet been made and there is no suggestion that the Minister will not consider making such a determination. Indeed, it is suggested that the Applicant could be placed in the community under residence determination arrangements under s 197AB of the Act by 31 August 2012: see [19] above. Eight weeks is a long time. There is nothing to suggest that it will take eight weeks. The determination may be made sooner. It is to be hoped that this would be so. 53 There are two other relevant factors. The Applicant is far more settled at MITA than he has been in earlier forms of detention. I am reluctant to change the status quo in the absence of an identified facility with appropriate and available medical treatment. I accept that the Applicant's continued detention is itself a factor. However, there is one limited form of order that the Court can and should make in the interim. There should be an order which requires that the Commonwealth forthwith take all reasonable steps to provide or procure the provision of services to the Applicant in immigration detention in Melbourne in the State of Victoria being services of the kind described by Professor Newman in paragraph (2) of her report dated 27 June 2012. 54 Subject to that order, I dismiss the Applicant's interlocutory application. Dismissal of that application says nothing about the merits of the underlying application and the history of the Applicant's treatment, or alleged lack of treatment, by the Respondents. 55 This matter has caused me great concern. Contrary to the Respondents' submission, I am not yet persuaded that the Court lacks power to restrain a continuing tort in every circumstance which would fall within the general description outlined in [50] above. There is an affirmative common law duty of care. The imposition of that duty is consistent with and complementary to the performance of its statutory functions. The duty falls to be decided by applying the usual principles: Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at [81]-[93]. The Commonwealth is in a position of control. Detainees cannot reasonably be expected to safeguard themselves from danger, especially detainees with mental health needs which are known to the Commonwealth. The question which arises is whether there are other supervening reasons in policy to deny the existence of a duty of care. An example of the last may be that the imposition of the duty is inconsistent with the statutory scheme. For the purposes of the present application, it is unnecessary to decide that question. 56 In the circumstances, there will be an interim order for the provision of appropriate medical services to the Applicant at MITA. I will then hear the parties on the other appropriate orders. Such orders should include an early trial date. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.