Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527

Federal Court of Australia Hassan (formerly described under the pseudonym AFX21) v Minister for Home Affairs [2024] FCA 527 File number(s):

Judgment of: PERRY J

Date of judgment: 20 May 2024

MIGRATION – where applicant was medically evacuated to Australia from offshore immigration detention in Papua New Guinea for urgent medical treatment – where applicant requested his removal to PNG under s 198(1) of the Migration Act 1958 (Cth) – where applicant was removed to the USA over 500 days after his request TORT – whether respondents owed the applicant a duty of care in failing to limit the duration of his detention to that required for the purpose of removal as soon as reasonably practicable from the time of his request – discussion of principles for determining whether a duty of care exists – where no duty of care known to the common law is alleged – where a duty of care in the terms pleaded would create incoherence with operative provisions of the Migration Act – application dismissed TORT – whether respondents in breach of any duty of care – whether respondents had failed to establish any system for administering requests for return under s 198B of the Migration Act Catchwords: CHOICE OF LAW – where purported breach of duty of care was an omission – where applicant contends that the applicable law is the common law of Australia unmodified by statute – where s 80 of the Judiciary Act 1903 (Cth) directs the Court to apply common law principles of choice of law – where civil liability laws of Victoria, as the place where the omission assumed significance, apply TORT –whether harm comprising deprivation of liberty, and mental distress and anxiety was caused by the alleged negligent omission for the purposes of s 51 of the Wrongs Act 1958 (Vic) – where framing of question of causation by reference to loss of a chance to be returned is misconceived in law – whether but for the alleged breach, the applicant would have been removed before border restrictions were imposed by PNG in response to the COVID-19 pandemic – where COVID-19 pandemic border restrictions broke the chain of causation – whether responsibility for the harm should be imposed on the respondents DAMAGES – whether general claim for damages is capped by s 28G of the Wrongs Act – whether claim for mental distress and suffering barred by s 28LE of the Wrongs Act – whether damages in relation to loss of freedom should be awarded on a "per day" basis EVIDENCE – whether Australian Human Rights Commission report admissible under the business records exception to hearsay rule in s 69 of the Evidence Act 1995 (Cth)