FEDERAL COURT OF AUSTRALIA Cao v Minister for Immigration and Border Protection [2017] FCA 109 File number(s): VID 50 of 2017 Judge(s): NORTH J Date of judgment: 13 February 2017 Date of hearing: 13 February 2017 Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: No Catchwords Number of paragraphs: 12 Counsel for the Applicant: The Applicant appeared in person with the assistance of an interpreter ORDERS VID 50 of 2017 BETWEEN: CUA BA CAO Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION Respondent JUDGE: NORTH J DATE OF ORDER: 13 FEBRUARY 2017 THE COURT ORDERS THAT: 1. The application made by the applicant on 1 February 2017 for an order restraining the Minister for Immigration and Border Protection from returning the applicant to Christmas Island is refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT NORTH J: 1 The applicant seeks an order restraining the Minister from returning him to Christmas Island, where he has been detained, pending the hearing of a number of applications to this Court and the Federal Circuit Court. The Minister accepted that the Court had power to make the order if satisfied that it should be made. 2 On this application the Court must address whether there is a serious issue to be tried, and whether the balance of convenience favours the making of the order. 3 The applicant has explained to the Court the reasons why he does not wish to be returned. The main reason is that he claims to have been assaulted and attacked on a number of occasions, in detention, by a group of people. He has indicated that they tried to strangle him, and that the incident was recorded on camera. The first occasion was in July or August 2016, and those people threatened to kill him if he complained to the authorities. He was asked how many times he had been assaulted, and he said "Not many times. I try to avoid." I was told, by Mr Brown, the lawyer representing the Minister, that he has instructions that there have been no reports of assault made by the applicant. 4 The applicant outlined a number of other reasons why he does not wish to return to Christmas Island. He said that the officers at Christmas Island had prevented him from attending court, and had given him misleading information on that subject. He said that he was subject to sexual harassment and did not like gay men. He also said that there were difficulties in faxing or scanning material for his court cases. He said that he had trouble sleeping because people made noise and that he had been admitted to hospital, twice, because he could not sleep. He said that a solicitor in Melbourne had refused to help him because he was to be moved back to Christmas Island. He also said that he was vegetarian and when he was removed he was not given food to eat, which had an adverse effect on his health. He said that he needed to be in Melbourne to sign various forms for his children's' education. He said that he was on a board of management of a company which required him to sign forms. He also wished to be in Melbourne to support and help people who were in detention. He said that he was stressed about the length of his time in detention because it was not possible to say how long that would last. He also related a frightening experience in detention when he was bitten by insects, which came on to his bed because the beds provided were not very high. 5 The applicant also provided a bundle of written material which, generally, went to the same issues. 6 The information provided by the applicant was provided from the bar table, although I am prepared to treat it as if it were sworn evidence. Indeed, very properly, Mr Brown, accepted that the applicant had a subjective fear of returning to Christmas Island. 7 The Minister filed an affidavit, affirmed by Mr Brown on 13 February 2017, which deposed, in part, as to the availability of alternative detention facilities for the applicant. That evidence indicated that, apart from Christmas Island, there was no ready availability of the necessary accommodation for the applicant. That evidence also indicated that the shortage of necessary accommodation was due, at least in part, to the fact that the applicant had been assessed as a high escort risk due to an attempt to abscond when first interviewed by officers of the Department, and as a high placement risk within the detention centre facilities on account of the nature of his previous criminal offending. Those assessments mean that the applicant can only be detained in centres that can accommodate high placement risk detainees. 8 An alternative was proposed to the applicant, whereby the application would be expedited for hearing on 15 March 2017, and arrangements would be made in the interim for him to remain in Melbourne. The applicant was concerned that this would not allow him sufficient time for the preparation of his case, and was not prepared to agree to that arrangement. 9 The question, then, is whether there are grounds made out by the applicant for the order restraining the Minister. The issue is whether the Minister should be compelled to make special arrangements in the light of the pressure on accommodation in view of the allegations made by the applicant. 10 The allegations made by the applicant are general and lack detail of the circumstances of his feared harm. The applicant was pressed on a number of occasions to indicate the details of time and place and the circumstances of the assaults said to have been made against him, and he did not do so. Indeed, his evidence was that there were not many occasions and that he had tried to avoid circumstances in which they might occur. 11 I am not persuaded by the material supplied by the applicant that there is good reason to interrupt the ordinary arrangements which the Minister has for the applicant's detention. Even if it is assumed that the applicant has established that there is a serious issue to be tried, the material relied upon by the applicant does not persuade me that the balance of convenience favours the making of the order. 12 It follows from the above reasons that the application is dismissed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 17 February 2017