THE DECISION OF THE PRIMARY JUDGE
31 The appellant's case was that reasonable care for his mental health required detention in a setting more benign than the "environment of incarceration" in the facilities where he has been detained. This expression was used by Professor Jureidini to include: "the guards, the bureaucratic cruelty, the exposure to other people's distress, all those things". The appellant's case was that the Commonwealth was duty-bound to devise and implement a form of detention which would not have been deleterious to his health.
32 One form of accommodation which would have been less harmful to the appellant, and which was identified in the appellant's case, was that provided by the Hotham Mission. Professor Jureidini identified the possibility of accommodating the appellant in a house supported by the Hotham Agency, staffed by mature carers who have an educative as well as a supervisory role, as appropriate. Professor Mullen, who was called by the respondent, gave evidence to similar effect.
33 The primary judge said at Reasons [65]-[66]:
Again, Professor Jureidini expressed an opinion about the effect of the place of detention on the applicant's mental condition. He said that the applicant did not require any special environment or hospitalisation, but that it would be therapeutic for him to be in an environment "where he is free to come and go as he pleases and has appropriate social supports".
Professor Jureidini said that the major cause of the applicant's mental condition was his "detention experience". In his oral evidence-in-chief he described what he meant by that expression and he said that he was referring to intrusive searches, inspection and monitoring by staff and the frustration caused by the bureaucracy associated with being in detention. Professor Jureidini said that the proper treatment was removal to a more appropriate environment which he described in various ways, including a family-type environment and an environment where he had older people around him who would guide and nurture him. Professor Jureidini said that placing a person who is a suicide risk on close watch is likely to exacerbate their mental problems rather than alleviate them.
34 Evidence was given on behalf of the respondent by Mr Gregory Kelly, an officer of the Department, as to the various forms of detention that are available for the purposes of the Act, and as to his opinion as to the form of detention most appropriate for the appellant. His Honour decided the case without the need to reach a conclusion as to whether Mr Kelly's opinion should be accepted.
35 The evidence of Ms Pamela Curr, a witness called on behalf of the appellant, was that the Hotham Mission's facilities are not guarded. The primary judge, at Reasons [53], accepted Mr Kelly's evidence that the Hotham Mission has provided accommodation pursuant to determinations made under s 197AB of the Act.
36 His Honour made the following findings of fact at Reasons [84]-[86]:
84 First, the applicant has a psychiatric illness which is either a major depressive disorder or an adjustment disorder accompanied by depressed mood, anxiety, and behavioural disturbances. … The precise diagnosis was not a prominent feature of either party's case and there was no extended cross-examination of Professor Jureidini or Professor Mullen which might assist me in reaching a clear conclusion. … I am able to conclude that the applicant has a psychiatric illness which fluctuates in terms of symptoms and which is of sufficient seriousness to lead to acts of self-harm from time to time and an attempt to commit suicide. As Professor Mullen said, if the applicant is held in detention on an ongoing basis it is inevitable that his mental state and behaviour will again deteriorate and "there is a real risk that he would once again engage in a potentially lethal suicide attempt".
85 Secondly, the applicant's psychiatric illness results from a number of factors, including his traumatic upbringing, illicit substance dependence and withdrawal, the imprisonment of his father in Indonesia and traumas associated with his detention since his arrival in Australia in December 2010. The primary cause of his present psychiatric illness is his detention and what Professor Jureidini referred to as the detention or incarceration environment. A further contributing factor in 2011 was the fact that he had been assessed as having refugee status, but prior to being advised of the adverse security assessment in December 2011, was uncertain about when he might be released and, after the assessment, knew that he could be detained indefinitely.
86 Thirdly, the only effective treatment for the applicant's condition is release from the detention or incarceration environment. There were many statements of a general nature about the environment which would eliminate those circumstances which are presently contributing to the applicant's mental illness. The effect of the evidence is that those circumstances would be eliminated if he was in a place where he was free "to come and go as he pleases and has appropriate social supports" (see above at [65]). Other than a residence determination under s 197AB of the Act, the applicant was not able to identify a place or a precise set of circumstances which would eliminate the causative factors. Professor Mullen said that the "big problem" was the applicant's loss of freedom and the uncertainty as to his future and that "anything that moves towards giving him greater freedom and greater hope for the future will improve the outcome". The applicant built an argument on this statement to the effect that the Commonwealth was in breach of its duty of care in not moving the applicant to an environment which would provide him with greater freedom, albeit not one in which he is free to come and go as he pleases.
37 The primary judge analysed the appellant's case on the orthodox basis that damage is the gist of the cause of action in negligence and the onus of proof of damage is upon the plaintiff. In this regard, his Honour said at Reasons [106]-[107]:
106 The applicant's … case is that the level of medical care reasonably designed to meet his health care needs requires detention in a community setting and that the Commonwealth's failure to arrange that is a breach of its duty of care. I will need to come back to what is meant by "community setting" because it is a very important point having regard to the facts of this case. For present purposes, I will simply refer to detention in a community setting to contrast it with detention in a place such as MITA. The applicant submitted that it was foreseeable to the Commonwealth that detaining the applicant in a formal detention environment may lead to him suffering mental harm. It relied on general evidence of the effects of detention on minors and evidence specific to the applicant.
107 The applicant did not attempt to identify the point at which the possibility of mental harm became reasonably foreseeable, or the point at which he first suffered mental harm. It is enough for me to find that by … 17 August 2011, if not before, it would have been reasonably foreseeable to the Commonwealth that continued detention in MITA or similar places could cause mental harm to the applicant. However, the question is whether the Commonwealth was under a duty to take steps to avert the risk of harm by transferring the applicant to the form of detention he now seeks. The answer to that question is informed by the statutory provisions which authorise the detention of the applicant.
38 The primary judge at Reasons [108] summarised the appellant's case as it had developed at trial, and the nub of the respondent's reply to the appellant's case:
The Commonwealth submitted that it did not have the power under paragraph (b)(v) of the definition of immigration detention in subs 5(1) of the Act to transfer the applicant to the form of detention now sought. It pointed to the fact that the applicant had not sought a residence determination under s 197AB and submitted, correctly in my view, that the Minister could not be compelled to make such a determination. The Commonwealth's submission does not quite meet the applicant's case as it developed. The fact that the Commonwealth made the submission is entirely understandable in view of the medical evidence and the general nature of the injunctive order sought by the applicant. However, as I understood the applicant's argument it was that the Commonwealth could devise a form of detention under paragraph (b)(v) of the definition of immigration detention which recognised being held by, or on behalf of, an officer and the adverse security assessment, but at the same time, meant that he was in the community. The following exchanges occurred in the course of Mr Kelly's cross-examination.
So if the applicant says, 'I don't want MITA and I don't want Sydney. I don't care if I have two or three guards or one guard. I want to be in a more residential type environment, with, perhaps, carers around me'. The applicant says that and the doctors indicate that that would be better for his health. You would defer to that? … No. I would take that into account, your Honour. It's not the sole factor in determining an accommodation placement for an individual. We would take a range of factors into account.
…
That he couldn't be locked in a house with a Serco guard at the front door, but he received treatment in a therapeutic environment. He couldn't do that? … Your Honour, the issue about restrictive detention, if he is locked in a house, that is a far more restrictive environment than in the Darwin Airport Lodge, where there is a perimeter fence and he is able to move freely within the facility.
So it was just a question of, 'well, there's nothing that's available apart from the places he has been placed in'? … That's probably fairly accurate your Honour.
…
There wasn't any question of designing an appropriate environment that might fit his needs and the needs of the Australian community? … There was consideration broadly given, but in terms of the preferred options, at least the department believed the preferred options open were the ones that I have outlined in the affidavit, your Honour.
39 As to the primary judge's concern that the case advanced on behalf of the appellant did not identify a specific set of arrangements which, while satisfying the requirements of immigration detention, would at the same time alleviate the appellant's psychiatric disorders, his Honour said at Reasons [109]:
109 The applicant does not identify the precise form of detention he seeks in the injunctive order he claims. Nor did he do so in the evidence or in the submissions, other than general examples such as a residential house with a guard, or possibly two guards.
40 The primary judge noted that the appellant did not seek relief by way of a residence determination under s 197AB of the Act. His Honour held that on the proper construction of the definition of immigration detention in s 5(1)(b)(v) of the Act, the powers implicit in that definition could not be used to achieve the benign form of accommodation contemplated by s 197AB of the Act. In this regard, his Honour said at Reasons [111]-[113]:
111 First, the power in paragraph (b)(v) could not be exercised in a way which had an effect similar to a residential determination under s 197AB. They are two different powers. One involves a form of immigration detention, or holding by, or on behalf of, an officer (that is, paragraph (b)(v)), whereas the other involves residence at a place with (subject to some exceptions) the Act and regulations applying as if the person is being kept in immigration detention (s 197AB).
112 Secondly, I do not think the "other place" within paragraph (b)(v) need be a formal institutional place like MITA. While it may be something different from that, it must still be a place where a person can be said to be held by, or on behalf of, an officer. To the extent that the Commonwealth submitted that the place for the purposes of paragraph (b)(v) must be a formal institutional place (to be fair to the Commonwealth, I am not sure it went that far), I reject the argument. I do accept the Commonwealth's submission that a person in a place approved under paragraph (b)(v) would need to be guarded, and in view of the adverse security assessment, the extent of the security measures would be a matter for the Commonwealth.
113 Thirdly, I think the nature of the power in paragraph (b)(v) and the considerations relevant to its exercise, are such that the Commonwealth (or the Minister) would not be in breach of any duty of care for failing to exercise the power. Many considerations might be relevant to the exercise of the power, including cost considerations, the ready availability of other services in a residential setting, and security considerations associated with an adverse security assessment. As far as cost considerations are concerned, it is not a matter of the Court declining to make the order sought by the applicant because Mr Kelly's rather general evidence was that it would be a good deal more costly to house the applicant in the manner he seeks rather than at a place like MITA. The significant matter is that cost considerations are relevant to the exercise of the power in paragraph (b)(v). It seems to me that it is not possible to formulate the practical content of a duty to exercise the power in paragraph (b)(v) (Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 at 13 [5] per Gleeson CJ).
41 The primary judge distinguished Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83 (Mastipour) and S (2005) 143 FCR 217 from the circumstances of the present case. The primary judge said at Reasons [117]:
The decisions in Mastipour and S go some way towards supporting the applicant's argument. They support the proposition that the scope of the Commonwealth's duty of care may include a duty to transfer a detainee from place A to place B where the only or primary consideration is the mental health needs of the detainee. It is another step to hold that the scope of the Commonwealth's duty of care includes a duty to devise a form of detention under paragraph (b)(v). That is a step which should not be taken for reasons I have given. The applicant's form of detention case must fail.
42 His Honour held that the appellant had failed to identify the elements of an alternative form of detention under paragraph (b)(v) which would be likely to result in a material improvement in his health. His Honour considered the effect of the evidence was that a cause of the appellant's psychiatric illness is the environment of incarceration, and that the circumstances contributing to the appellant's mental illness would be relieved in a significant way only if the appellant was accommodated in a place where he was free "to come and go as he pleases and has appropriate social supports". This could occur via a residential determination under s 197AB of the Act; but the appellant did not claim any breach on the part of the respondent by reason of the Minister's failure to make a residence determination in his favour, and had not identified an alternative regime of detention which would have the same effect. In this regard, his Honour said at Reasons [118]:
118 The applicant's form of detention case must fail for another quite independent reason. The applicant has established that community detention under s 197AB of the Act, where the applicant is free to come and go as he pleases, would improve his mental health in a material way. That conclusion is established by the evidence of Professors Jureidini and Mullen. He is not claiming any breach by the Commonwealth by reason of a failure to make a residence determination. The applicant has not established that the alternative form of detention which he has identified in a very general way would improve his mental health in a material way. Having regard to the evidence as a whole, general evidence of the type given by Professor Mullen, and referred to above (at [82] first sentence) does not establish that proposition.