Federal Court of Australia CPJ16 v Minister for Home Affairs [2020] FCA 1553 File number: NSD 1141 of 2020 Judgment of: WIGNEY J Date of judgment: 16 October 2020 Catchwords: MIGRATION – detention – where Minister set aside a decision of the Administrative Appeals Tribunal and refused the applicant's protection visa application – where primary judge dismissed applicant's judicial review application – where applicant sought urgent interlocutory relief – whether applicant should be released from immigration detention – application refused Legislation: Migration Act 1958 (Cth) ss 189, 501A(3) Cases cited: BNL20 v Minister for Home Affairs [2020] FCA 1180 CPJ16 v Minister for Home Affairs [2020] FCA 1408 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 17 Date of hearing: 16 October 2020 Counsel for the Applicant: The applicant appeared in person Counsel for the Respondent: Mr B Kaplan Solicitor for the Respondent: Australian Government Solicitor ORDERS NSD 1141 of 2020 BETWEEN: CPJ16 Applicant AND: MINISTER FOR HOME AFFAIRS Respondent order made by: WIGNEY J DATE OF ORDER: 16 OCTOBER 2020 THE COURT ORDERS THAT: 1. The applicant's interlocutory application be dismissed. 2. The applicant pay the respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 The applicant in this matter, who has been given the pseudonym CPJ16, has filed an interlocutory application seeking relief against the Minister for Home Affairs. The main relief she seeks is, in effect, a mandatory injunction requiring the Minister to release her from immigration detention. Three main grounds were advanced by the applicant for the grant of that relief: first, that she has and is being denied adequate medical treatment and medication in immigration; second, that she is at risk of being attacked by certain groups of people while in immigration detention; and third, that her continuing detention is having a deleterious impact on her son who had not been able to visit her. 2 The applicant's interlocutory application was listed before me as duty judge because, so it was said, the applicant's situation and circumstances were serious and required urgent attention. The Minister was, however, put on notice of the application and was represented by counsel at the hearing. The applicant was not legally represented. 3 The applicant's engagement with the Minister and his Department in relation to her immigration status has a long and somewhat unfortunate, if not extraordinary, history. That history and the reason why the applicant is presently in immigration detention, and has been so for some time, is explained in the most recent judgment in her case: see CPJ16 v Minister for Home Affairs [2020] FCA 1408. In that decision, Mortimer J dismissed the applicant's most recent challenge to a decision made by the Minister in relation to her immigration status, being a decision to set aside a decision of the Administrative Appeals Tribunal and refuse the applicant's application for a protection visa pursuant to s 501A(3) of the Migration Act 1958 (Cth). 4 It is unnecessary to refer at length to the judgment and reasons of Mortimer J in that case. It suffices to note three things. 5 First, the applicant has appealed Mortimer J's decision to refuse her application for judicial review of the Minister's decision. 6 Second, the applicant's case before Mortimer J extended beyond a judicial review challenge to the Minister's decision and included allegations of misfeasance in public office and false imprisonment. Justice Mortimer adjourned the latter aspect of the applicant's case to a further case management hearing. That case management hearing, however, did not take place and is unlikely to take place in the future. That is apparently because the applicant has advised that she intends to discontinue that aspect of her case. Indeed, the applicant says that she has now signed a notice of discontinuance, though it appears that the notice of discontinuance has not been filed. The remaining aspect of the proceeding before Mortimer J is accordingly still on foot. 7 Third, and significantly, it would seem that the allegations that underlie the applicant's claims of misfeasance in public office and false imprisonment in the proceeding before Mortimer J are essentially the same or similar to the claims and allegations she has made in support of her interlocutory application in this matter. That is, in all the circumstances, a somewhat unsatisfactory state of affairs. Having raised those allegations before Mortimer J, the applicant should pursue them before her Honour and not seek to raise them in new proceedings or seek interlocutory relief based on them before a different judge. The applicant sought to address that issue before me by claiming that Mortimer J appeared to be biased. It is clear, however, that the applicant has not made that claim before Mortimer J and has not applied for her Honour to disqualify herself on that basis. Nor does there appear, at least on the basis of the submissions made by the applicant in that respect before me, to be any merit in her claim of bias, apprehended or otherwise. 8 Putting those issues to one side for the moment, the applicant based her claim for interlocutory relief primarily on the decision of Murphy J in BNL20 v Minister for Home Affairs [2020] FCA 1180. In that matter, Murphy J considered an interlocutory application in which orders were sought concerning the manner or circumstances in which the applicant in that case was being held in immigration detention. It was alleged in that regard that the Minister was in breach of his duty of care to that applicant to avoid foreseeable harm to him while detained in a particular immigration detention facility. That breach was said to arise from a risk that the applicant might contract COVID-19. 9 Justice Murphy held that the applicant had a prima facie case that the Minister was in breach of his duty of care. The Minister accepted for the purposes of the application that it was at least arguable that the Court has the power in an appropriate case to restrain the Minister from causing a person's immigration detention to continue at a place or in a form that constitutes a continuing tort: see BNL20 at [16]. His Honour also held that the balance of convenience favoured injunctive relief to restrain what was arguably a continuing breach of the Minister's duty of care. The relief ultimately granted was that the Minister was to cease detaining the applicant at the particular immigration detention facility which was the focus of the application. It is important to emphasise that Murphy J did not order the applicant's release from immigration detention. The facts and circumstances considered by his Honour in BNL20 were also distinguishable from the facts and circumstances in this case. 10 I have considered the affidavit evidence relied on by the applicant in support of her application. On my assessment, it does not establish a prima facie case that the Minister has breached any duty of care owed to the applicant by reason of her being in immigration detention. Without going into any unnecessary detail, the applicant's evidence essentially amounts to little more than a series of broad and mostly unparticularised and unsubstantiated assertions and arguments about her particular treatment in immigration detention. 11 Perhaps more fundamentally, even if the applicant had an arguable case that the Minister was breaching his duty of care in the circumstances, I would not be inclined to grant the relief that the applicant has sought. There is, and could be, no doubt that the applicant is an unlawful non-citizen given the Minister's most recent decision. That will continue to be the case unless and until the applicant succeeds in her appeal from Mortimer J's decision in relation to her judicial review application. In those circumstances, the Minister and officers of his Department are effectively required to detain her in immigration detention: see s 189 of the Migration Act. 12 It that context, the applicant submitted before me that s 189 of the Migration Act did not apply to her case. She submitted in that regard that her present detention achieved no proper purpose and was frivolous. The arguments she advanced in support of that proposition effectively amounted, however, to a challenge to the Minister's most recent decision not to grant her a visa. The appropriate forum for the applicant to ventilate those arguments is in her appeal from Mortimer J's judgment, not in this proceeding. 13 If the applicant had a prima facie case that she was or is being declined reasonable medical treatment or medication such as to amount to a breach of the Minister's duty of care, it might be appropriate to order that she be given reasonable treatment or medication. Similarly, if the applicant was able to establish an arguable case that the Minister was not reasonably protecting her from harm at the hands of other while she is in immigration detention, it might be appropriate to make orders remedying that situation, short of ordering that she be released from immigration detention. The applicant has not, however, sought any such orders. She has effectively sought an order that she be released from immigration detention. For the reasons already given, the applicant has not demonstrated any proper or sound basis for the grant of that relief. 14 In those circumstances, it is appropriate to dismiss the applicant's claims for interlocutory relief in the form sought by her. Nothing I have said in this judgment should, however, be taken as preventing the applicant from applying for specific relief in the future concerning the manner and circumstances in which she is detained should she be able to establish proper grounds to do so. 15 I should also note also that the applicant also sought additional interlocutory relief which appeared to involve the correction of certain personal information that was said to be held by the Minister or his Department and the making of an order requiring the Minister to relinquish certain child service notes. It is unnecessary to address those claims for relief in any detail. It suffices to note that the applicant has failed to demonstrate any urgency for that relief. Nor has she has filed any application seeking final relief in relation to the correction of her personal information or the release of her child service notes. The precise basis upon which that relief is sought is also somewhat unclear. In all the circumstances, I am not satisfied that there is any proper basis to grant the additional interlocutory relief sought by the applicant. 16 Finally, I should note that, in the course of the hearing, I raised with the applicant whether the preferable course for her was to apply for the expedition of her appeal from the judgment of Mortimer J. The Minister's position was that the Minister was unlikely to oppose expedition of the applicant's appeal should she make any such application. Given that the applicant is unrepresented and is in immigration detention, I propose to notify the National Operations Registrar that, given the applicant's circumstances and the matters raised by her in this application, it may be appropriate to expedite the hearing of the appeal if that is possible. 17 The orders of the Court are as follows: (1) The applicant's interlocutory application be dismissed. (2) The applicant pay the respondent's costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 16 October 2020