P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The plaintiff, who is a young Afghani national, came to Australia unlawfully in November 2001 and was subsequently removed to Nauru. He was returned to Western Australia by officers of the Department of Immigration, Multicultural and Indigenous Affairs ('DIMIA') for the purpose of giving evidence in a coronial inquest into the drowning of two women on the boat on which he was attempting to reach Australia. He has, since his arrival in Western Australia, required medical treatment to his arm. He resisted an attempt to remove him to Nauru by instituting proceedings first in the Federal Court and subsequently in the High Court of Australia in the exercise of its original jurisdiction. Those proceedings were based in part upon his contention that he was a minor. An interlocutory order was made by the High Court restraining his removal from Australia until the hearing and determination of the proceedings commenced in that court or until he turned 18. The proceedings in the High Court were remitted to the Federal Court but have not yet come on for hearing. In the meantime the plaintiff has turned 18. He is due to undertake medical treatment for an injury to his arm sustained in Afghanistan. That treatment is scheduled for 30 September 2003. The injunction granted in the High Court having expired by virtue of the plaintiff turning 18 on 21 September 2003, he now seeks further interlocutory relief. That relief includes an order restraining the Minister from removing him to Nauru, an order in the nature of habeas corpus releasing him from detention and, alternatively, an order maintaining his present conditions of detention under which he resides in a motel near the Perth Airport and attends the Cyril Jackson High School. 2 The proceedings which the plaintiff has brought against the Minister involve claims for compensatory aggravated and exemplary damages in relation to various breaches of duty said to be owed by the Minister to the plaintiff having regard to his minority. In addition, there is declaratory and other relief sought on the basis that the provisions under which the plaintiff was removed to Nauru are invalid as beyond the legislative power of the Commonwealth. Further, it is said that the Declaration of Nauru under the Migration Act 1958 (Cth) as a place to which the plaintiff could be removed was invalid. 3 For the reasons that follow I have come to the view that the interlocutory relief claimed cannot be granted and that the plaintiff's motion should be dismissed. However I have also ordered that the plaintiff have leave to appeal against that decision should he so wish. Factual and Procedural History 4 The plaintiff came to Australia by boat without a visa in November 2001. The boat sank in the vicinity of the Ashmore and Cartier Reefs. Two women on the boat drowned at the time of the sinking. The plaintiff, who claimed to have come from Afghanistan, intended to apply for a protection visa once in Australia. He sought protection on the basis of a well-founded fear of persecution by Taliban forces in Afghanistan. He claimed to be a minor and said that he had been born on or about 21 September 1985. 5 The plaintiff was taken to the Australian Territory of Christmas Island on or about 15 November 2001 where he was interviewed and requested a visa to enter and remain in Australia. However he was flown to the Republic of Nauru by the Australian government on or about 29 December 2001. There he was assessed for refugee status by officers of DIMIA. That assessment was evidently adverse. He applied for administrative review of it. That review was conducted by another officer of DIMIA who again found that he was not a refugee. 6 The reviewing officer, in a letter hand delivered to the plaintiff in Nauru, said: 'You recently requested a review of the refugee status assessment which found you not to be a refugee. Following a thorough review and assessment of your claims and careful consideration of all available information, you have been found not to meet the criteria for protection, as set out in the United Nations Refugees Convention, as amended by the Refugees Protocol. Accordingly, you have been found not to be a refugee.' Among the reasons for his failure to meet refugee criteria was said to be his failure to establish a reasonable possibility that he would experience the harm he feared if he returned to his country of origin. This was evidently based upon the view that the Taliban, from which he claimed to be at risk, were no longer in power in Afghanistan. 7 The plaintiff claimed that while in Afghanistan his arm had been injured by the Taliban, that the injury caused scarring and that he suffered pain and did not have the full use of his hand. In Nauru he was examined by an Australian medical specialist who expressed the opinion, in a report prepared for DIMIA, that the plaintiff required specialist treatment in Australia. 8 On 1 November 2002, the plaintiff was transferred from the Republic of Nauru to Australia for the purpose of giving evidence at a coronial inquest. Following his transfer to Perth for the purpose of giving evidence the plaintiff's solicitors wrote to the Secretary of DIMIA on 5 November 2002 asking for copies of his medical records. They inquired whether the Minister would exercise his discretion to allow the plaintiff to live with his brother in Perth pending resolution of his situation. His brother, who lives in Perth, has a temporary protection visa. 9 On 7 December 2002, a medical report prepared by a Dr Craig Smith, a hand and wrist surgeon, identified the plaintiff's ongoing problems as: