Kanhalingam v Minister for Home Affairs & Anor [2020] HCATrans 122 (26 August 2020)

Last Updated: 27 August 2020

[2020] HCATrans 122

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S85 of 2020

B e t w e e n -

SUBESHAN KANHALINGAM

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

KEANE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO SYDNEY

ON WEDNESDAY, 26 AUGUST 2020, AT 9.31 AM

Copyright in the High Court of Australia

HIS HONOUR: On 28 May 2020, the plaintiff filed an application for a constitutional writ and other relief. For the reasons that I now publish I would dismiss the application. I direct that those reasons be incorporated into the transcript.

The orders are:

1. The application is dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff pays the defendants’ costs of the application.

I publish those orders.

On 28 May 2020, the plaintiff filed an application for a writ of habeas corpus seeking his release from immigration detention, declarations that his ongoing indefinite detention of the plaintiff is causing him severe mental and physical pain and suffering, injunctions preventing the first defendant from breaching his duty of care to the plaintiff by holding the plaintiff in indefinite detention, and a declaration that it is in the public interest for the first defendant to consider exercising his power under s 197AB(1) of the Migration Act 1958 (Cth) (“the Act”) to determine that the plaintiff reside within the community.

The defendants contend that the plaintiff’s application does not disclose an arguable basis for the relief sought and should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

The plaintiff is a Sri Lankan national who is an unlawful non‑citizen in Australia. He had been in immigration detention in Papua New Guinea (“PNG”) until 11 November 2019, when he was transferred from PNG to Australia under the former s 198C(2) of the Act pursuant to the first defendant’s approval of a temporary medical transfer to Australia under the former s 198E of the Act. On 9 November 2019, the plaintiff signed an “Agreement of Medical Transfer” which stated, among other things, that the plaintiff was to be transferred to Australia for the temporary purpose of medical treatment, and that while in Australia he would be held in immigration detention on the basis that he was an unlawful non‑citizen. Since the plaintiff was transferred to Australia, he has been detained either at the Mantra Bell City Hotel in Preston, Victoria, or in “Melbourne Immigration Transit Accommodation”.

The plaintiff suffers from a number of issues with his physical and mental health including chronic headaches, chronic sinusitis, septal deviation and rectal bleeding. While in Australia, he has been given medical treatment for these issues. He is scheduled to be reviewed by a plastics specialist and an ear, nose and throat specialist.

The plaintiff contends that he is being indefinitely detained, which is said to be “directly causative of severe detention fatigue, severe mental distress and harm, suicide risk and severe physical distress and harm”. It is said that the plaintiff is thereby being subjected to torture contrary to s 274.2 of the Criminal Code 1995 (Cth), and alternatively that he is being treated contrary to the duty of care owed to him at common law by the defendants. It is said that this harm is being inflicted upon the plaintiff because of his identity as a transitory person and therefore for a discriminatory purpose. These contentions cannot sustain the plaintiff’s claim to the relief sought in the application.

Contrary to the assumption that is fundamental to the plaintiff’s argument, his detention by the defendants is not at the discretion of the defendants: the plaintiff’s detention is required by ss 189 and 196 of the Act on the basis that he is a transitory person and an unlawful non‑citizen^[1]. In particular, s 196(3) of the Act prevents the release “even by a court, of an unlawful non‑citizen from detention ... unless the non‑citizen has been granted a visa”. Given this, the plaintiff’s detention cannot amount to torture under Australian law. A duty of care prohibiting detention of the plaintiff on the basis that the plaintiff is a transitory person is inconsistent with the Act. Further, a breach of a duty of care owed to the plaintiff by reason of the circumstances of his detention, while it might arguably give rise to a claim for damages in tort or even to seek a decision to change the circumstances of his detention, could not support an order for the release of the plaintiff into the community.

The plaintiff also contends that his detention is not for a permissible purpose. This contention seems to be based, in part at least, on the assertion that his detention is indefinite. But this assertion is not supported by evidence. Further, the plaintiff advances no reason to conclude that the plaintiff was not transferred to Australia to receive medical treatment or that, because of this temporary purpose, his detention is not for the purpose of his removal from Australia^[2].

As to the plaintiff’s application for a declaration in relation to s 197AB(1) of the Act, the first defendant is under no duty to consider whether to exercise the power, or to exercise it in any particular circumstances. Given that the first defendant is under no obligation to consider whether to exercise the power conferred by s 197AB(1) of the Act, there would be no utility in making a declaration that it would be in the public interest for him to do so. Further, and more importantly, whether it is in the public interest for the Minister to exercise the power conferred by s 197AB(1) is a matter committed by the Act to the first defendant: it is not a matter for judicial determination.

The plaintiff’s application does not show an arguable basis for any of the relief sought in his application. The application should be dismissed. The plaintiff must pay the defendants’ costs of the application.

Adjourn the Court.

AT 9.32 AM THE MATTER WAS CONCLUDED

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^[1] Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; (2017) 261 CLR 582 at 593 [19].

^[2] See Plaintiff M96A/2016 v Commonwealth [2017] HCA 16; (2017) 261 CLR 582 at 594‑596 [23]‑[28].