VLAH v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant is a young Iranian man who arrived in Australia in November 2000 seeking asylum. He applied for a protection visa but that application was refused by a delegate of the respondent Minister ("the Minister"). His application to the Refugee Review Tribunal ("the Tribunal") for a review of that refusal was rejected and an application to this Court for review of the Tribunal's decision was also unsuccessful. While his appeal to a Full Court of this Court was pending, the applicant was the holder of a bridging visa which he had procured upon giving an undertaking dated 15 February 2002 that; "… … … in the event that my application for a Protection visa is refused I will depart Australian or present myself to DIMIA for removal: - within 28 days after I am notified of the final determination of my Protection visa application; or - if I apply for judicial review of the refusal - 28 days after completion of judicial proceedings (including proceedings on appeal, if any); or - if I withdraw my Protection visa application or application (if any) for judicial review, 28 days after that withdrawal." 2 On 12 November 2002 the applicant withdrew his appeal in this Court and, as a result, was obliged, in accordance with his undertaking, to depart Australia or present himself to the Department for removal by the day of the hearing, 10 December 2002. 3 The applicant's bridging visa was granted on the basis that he had satisfied sub-reg 9 of Reg 2.20 because his physical and mental health had deteriorated significantly while in the Curtin Immigration Detention Centre ("Curtin") in 2001. During that time he had suffered significant loss of weight and become severely depressed. I understand that the applicant did not respond to medical treatment whilst in Curtin, and was transferred to Royal Perth Hospital on the advice of Professor David Greenberg, Chief Forensic Psychiatrist for Western Australia. The severity of his medical condition at that time is attested in a report signed by Dr M Bassiri, Psychiatric Registrar at Royal Perth Hospital and Professor A Jablensky, a consultant psychiatrist and dated 12 November 2001. That report reads in part: "The diagnosis of major depression has been confirmed at RPH [Royal Perth Hospital] given the history and assessment of [the applicant's] mental state. Considering the severity of [the applicant's] depressive symptoms, poor previous response to antidepressant medications, and also the potential physical hazards associated with his lack of fluid and food intake, electro-convulsive treatment (ECT) was considered the therapy of choice … There was some initial mild improvement in [the applicant's] condition but due to his anxiety regarding the procedure and his cumulative retrograde amnesia, ECT was discontinued … and he agreed to commence vanlafaxine (anti-depressant). … His chances of good recovery from his depressive illness would be much better if he were allowed to stay in the community rather than be returned to the Curtin detention centre. Even if full recovery from the current depressive episode occurs eventually, [the applicant] will remain extremely vulnerable and more than likely to suffer a relapse." 4 Professor Jablensky, in an unsigned letter dated 2 January 2002 and addressed to the Detention Manager at the Perth Immigration Detention Centre, also wrote: "Diagnostic conclusion Overall, [the applicant's] medical and psychiatric condition can be evaluated as a prolonged depressive reaction in response to a prolonged exposure to a stressful situation. At a recent point in time …, the intensity of this depressive reaction had reached the severity level of major depression. Although loss of appetite and weight typically constitute one of the clinical manifestations of severe major depression, the pervasiveness and persistence of [the applicant's] refusal of food intake beyond the duration of the episode of severe depression suggests that this behaviour … is voluntarily adopted and maintained … As such, the refusal of nourishment can be understood as an oppositional response to what [the applicant]perceives to be unbearable circumstances of detention and uncertainty about his future. The tenacity with which he maintains this response makes it extremely unlikely that he would voluntarily revert to normal nourishment intake under the conditions for detention. Management and treatment options Considering all of the above, my opinion is that a release into the community, involving placement in a supportive environment …, with guaranteed follow-up and access to medical and mental health services as needed, is the option that has a promise of success in preventing further, and possibly fatal, deterioration of [the applicant's] health." 5 The applicant subsequently applied for a bridging visa and was released into the community in February of this year. I understand that he currently lives in a facility managed by the Uniting Church. 6 Dr Caroline Zanetti, consultant psychiatrist, prepared a further report on the applicant's condition on 6 December 2002. That report concludes: [The applicant] appears to be severely depressed, with some mood-congruent psychotic features … I do not believe he has a psychotic illness but his current predicament, and state of mind predispose him to developing a psychotic depression should there not be some easing of his circumstances. He has significant post-traumatic anxiety symptoms … On the basis of my examination, I feel strongly that further incarceration is likely to have a very deleterious effect on [the applicant]. … In my opinion he is highly likely to either kill himself, or to suffer a further catastrophic psychological breakdown if returned to Detention. I strongly recommend that he be considered for a Temporary Protection Visa on medical and compassionate grounds. 7 The applicant has not removed himself from the country and contends that, on presenting himself to the Department, he cannot lawfully be returned to an immigration detention centre under the provisions of the Migration Act 1958 (Cth) ("the Act"). Mr Manetta of Counsel for the applicant argued that the Act is "self-limiting" in respect of the modes of detention available to the respondent. His submission was that there is within the Act an implied limitation which requires that, if the Minister is on notice of potential "catastrophic" adverse consequences to an individual non-citizen who must be detained under the Act, the form of detention in which the non-citizen may be placed cannot be unreasonable, having regard to the circumstances of that particular individual. Mr Manetta did not contest the proposition that the Act makes it mandatory to detain a person whose bridging visa has expired. That is the effect of s 189(1), which provides that; "If an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer must detain the person." Mr Manetta did, however, contend that the modes of detention which are lawfully and constitutionally available are confined when the circumstances attending the non-citizen in question are as extreme as those affecting the present applicant. 8 Mr Manetta sought to derive support for this argument from Lim v Minister for Immigration (1992) 176 CLR 1 ("Lim"), s 3A of the Act and the definition of "detain" contained in s 5 of the Act. He contended that the effect of Lim was that immigration detention is constitutional only as long as it is reasonable, and that s 3A and s 5 have been framed to give effect to that constitutional limit. In effect, he submitted, those provisions make the Act "self-limiting" and confine the available modes of detention to what is reasonable in the circumstances of the particular non-citizen. In particular, he referred to the definition of "detain" in s 5 as circumscribing the power of detention. That definition is; "detain means: (a) take into immigration detention; or (b) keep, or cause to be kept, in immigration detention; and includes taking such action and using such force as are reasonably necessary to do so." 9 In my opinion it is obvious that the words "and includes taking such action and using such force as are reasonably necessary to do so" are words of extension, not limitation. So much is clear from the use of the phrase "and includes"; those words do not have the effect of limiting the available modes of detention to what is reasonable in the circumstances of an individual non-citizen. Rather, they expressly confer powers which are necessarily incidental to taking a person into, or keeping a person in, detention. If anything they have been included out of an abundance of caution. It is true that s 3A requires the Act to be construed so as to preserve, as far as possible, the constitutional validity of each provision in it. However, the only question in that regard which arises in this case is whether the requirement to detain a non-citizen for the purposes of the Act is supported by s 51(xix) of the Constitution ("the aliens power"). That question has been settled by Lim, and the scheme of immigration detention under the Act is not open to constitutional challenge in this Court on the basis that it is an exercise of legislative power in excess of that granted by s 51(xix). Nevertheless, it was contended on behalf of the applicant that a presumptively valid detention could, in a particular case, go beyond what was constitutional according to Lim. In my view, the selection of a particular mode of detention is invalid only if it goes outside the definition of "immigration detention" in s 5 of the Act or if it is made for some ulterior purpose like the punishment of the non-citizen. The definitions of "immigration detention" and "officer" in s 5 are in these terms; "immigration detention means: (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; but does not include being restrained as described in subsection 245F(8A), or being dealt with under paragraph 245F(9)(b). Note: See also section 198A, which provides that being dealt with under that section does not amount to immigration detention." … … … … … "officermeans: (a) an officer of the Department, other than an officer specified by the Minister in writing for the purposes of this paragraph; or (b) a person who is an officer for the purposes of the Customs Act 1901, other than such an officer specified by the Minister in writing for the purposes of this paragraph; or (c) a person who is a protective service officer for the purposes of the Australian Protective Service Act 1987, other than such a person specified by the Minister in writing for the purposes of this paragraph; or (d) a member of the Australian Federal Police or of the police force of a State or an internal Territory; or (e) a member of the police force of an external Territory; or (f) a person who is authorised in writing by the Minister to be an officer for the purposes of this Act; or (g) any person who is included in a class of persons authorised in writing by the Minister to be officers for the purposes of this Act, including a person who becomes a member of the class after the authorisation is given." 10 An invalidity of the kind to which I have just referred does not arise from the terms of the Constitution. It occurs simply because the mode of detention selected is not authorised by the Act properly construed. As a consequence, the only arguable contentions open to the applicant are, in my view, founded on the propositions that the Act, on its proper construction, requires by implication that the mode of detention not be unreasonable in the circumstances of an individual applicant, and that the selection of a particular mode of detention not be actuated by an ulterior purpose. For the reasons I already outlined above, I am not persuaded that the definition of "detain" supports an implication that the selection of a mode of detention will be invalid if it is not reasonable in light of the circumstances of the non-citizen concerned. Mr Manetta contended, as is undoubtedly correct, that the effect of the definitions in s 5 of "immigration detention" and "officer" is that the Minister may in writing authorise detention in a wide range of places other than detention centres established under the Act and may authorise in writing any person to act as a detention officer in such a setting. For example, it might well be possible to have the applicant confined to immigration detention in the Uniting Church facility where he presently resides, and have him "held by, or on behalf of" the manager of that facility, authorised to be an "officer" as contemplated by par(f) of the definition of "officer" quoted above. However, the flexibility in the selection of a mode and place of detention which the various statutory definitions afford does not, by implication, restrict the Minister's choice in a particular case, or impose any statutory duty to consider alternative modes of detention. 11 Counsel for the applicant conceded that it would create an almost unsustainable administrative burden for the respondent if the circumstances of every individual unlawful non-citizen had to be considered before selecting a mode and place of detention. That is why he argued that the implied restriction only arises when the respondent is put on notice of the circumstances of a particular non-citizen that would make one or more available modes of detention unreasonable in that case. That construction would still enable an individual non-citizen to compel the respondent to take an administrative decision regarding the form of his or her detention, a decision which the Act, on the construction I favour, imposes no duty on the Minister or any other officer to make. 12 In relation to the argument that a potential impact of detention on the mental or physical health of an individual unlawful non-citizen could result in its selection being characterised as punitive, Counsel for the respondent, Mr Gunst QC, drew my attention to the decision of the Full Court of this Court in NAMU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 401. In that case, the Full Court said at [16], that; "The factual consequences of immigration detention for the mental health of an individual detainee cannot, in our view, render s 196(1) invalid on the ground that those consequences evince an intention to detain for the purpose of punishing those who are detained. Despite the effect that detention may have on the mental health of the detained child appellants, the non-punitive purpose of detention pursuant to s 196(1) is not displaced by that effect. If a punitive purpose is to be found, it must be discovered from the legislative structure of the regime for detention rather than from the consequences of the detention on individual detainees. Decisions in more general contexts that conditions of imprisonment are not relevant to the legality of the imprisonment, support this conclusion. See Reg v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58 at 165‑166 and Prisoners A - XX Inclusive v New South Wales (1995) 38 NSWLR 622 at 633. In Luu v Minister for Immigration & Multicultural Affairs [2002] FCAFC 369 a Full Court dealt with a contention that a detained person's continued detention pending deportation was unlawful because it amounted to the exercise of the Minister's power to detain for punitive purposes. The Court rejected the contention, saying that the fact of continued detention "does not, of itself, indicate anything about the respondent's purpose … in retaining [the appellant] in immigration detention"." (at [76]). 13 Similarly, the selection of one from among the places and modes of detention available under the Act does not, without more, indicate a purpose to punish or any other ulterior motive. 14 In substance, this is an application contending that any decision (not yet taken) to return the applicant to an immigration detention centre would, having regard to the consequences for the applicant, be so unreasonable that no reasonable decision-maker could make it. Such an argument could only succeed if the decision were one which this Court has jurisdiction to review. The decision in this case would not be made under an enactment so as to be amenable to judicial review as it is not a decision expressly provided for in the Act. It would be merely a decision giving administrative effect to a mandatory requirement to detain a non-citizen. That is not to say that decisions as to where, or under what conditions, non-citizens are housed will always be entirely free from judicial scrutiny. Mr Gunst QC conceded that the Minister owes persons in immigration detention a duty of care. Accordingly, if an actual or apprehended breach of that duty could be demonstrated, interlocutory relief might well be available in this or some other court. However, this is not such a case. 15 Quite apart from my conclusion that this Court has no jurisdiction to determine any substantive cause of action which might found injunctive relief in this case, there are strong discretionary reasons for refusing to make interlocutory orders at this stage. There is, as yet, no indication as to the place or mode of detention that will be selected for the applicant. The medical evidence does not enable the Court to confine that selection process in any meaningful way. In these circumstances, even if the applicant had made out an arguable case for the grant of final relief on his substantive application, I consider that interlocutory intervention in the terms sought would have been premature and inappropriate. It was for these reasons that I made the orders pronounced on 10 December last. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.