Mahamede v Minister for Home Affairs & Anor [2020] HCATrans 125 (1 September 2020)

Last Updated: 1 September 2020

[2020] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S86 of 2020

B e t w e e n -

JALAL MAHAMEDE

Plaintiff

and

MINISTER FOR HOME AFFAIRS

First Defendant

MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS

Second Defendant

EDELMAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO CONNECTION TO SYDNEY

ON TUESDAY, 1 SEPTEMBER 2020, AT 9.30 AM

Copyright in the High Court of Australia
HIS HONOUR: By an application filed on 29 May 2020 the plaintiff seeks various forms of relief against the Minister for Home Affairs and the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. For the reasons that I now publish I dismiss the application.

The orders are:

1. The plaintiff’s application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff play the costs of the defendants.

I publish those orders. I direct that the reasons as published be incorporated into the transcript.

The plaintiff is currently held in immigration detention. He brings this application by common solicitors with several others whose applications I decide today in Kazemi v Minister for Home Affairs^[1], Khan v Minister for Home Affairs^[2], and Mokhlis v Minister for Home Affairs^[3]. The relief sought in this Court's original jurisdiction is for a writ of habeas corpus, declarations and injunctions.

The plaintiff is from Iran and arrived by boat in Australia in July 2013. He was subsequently transferred to Nauru. In 2018, he was assaulted in Nauru. He lost some of his teeth, was knocked unconscious, and has been suffering headaches since the assault. On 22 October 2019, the plaintiff was transferred to Australia pursuant to s 198B of the Migration Act 1958 (Cth) to receive medical treatment.

Since the plaintiff does not hold a visa, he is an unlawful non‑citizen pursuant to s 14 of the Migration Act. Sections 189 and 196 of the Migration Act require that he be held in immigration detention whilst he is in Australia, and he has been so held since his arrival in October 2019. The plaintiff’s evidence is that at the time of his arrival in Australia for medical treatment he was told by his case officer that an application was being made for him to reside in the community and that this would take four to six months. He says that his medical treatment finished at the end of 2019. The defendants’ evidence is that during 2020 the plaintiff has been treated by a dentist and a general practitioner and that he has ongoing treatment for impaired vision, asthma, chronic pain in his left knee, and mental health concerns.

Section 197AB of the Migration Act empowers the Minister to make a residence determination that would allow the plaintiff to reside at a specified place instead of being held in immigration detention. Section 197AC(1) provides that in such circumstances the Migration Act applies “as if the person were being kept in immigration detention”. At present the plaintiff’s case has not been referred to the defendants for the possible exercise of the power under s 197AB of the Migration Act.

The plaintiff alleges that he is suffering severe mental and physical harm as a result of his detention. He also alleges that the conditions of his detention do not allow for appropriate social distancing. He argues that his continued detention therefore constitutes a breach of the duty of care owed to him by the defendants.

The plaintiff seeks a subset of the relief sought by the plaintiff in Kazemi v Minister for Home Affairs although relief is sought in all of the categories described in my reasons in relation to that application. First, the plaintiff seeks a writ of habeas corpus for release from the immigration detention facility. Secondly, he seeks declarations that his ongoing restraint “in indefinite held custody is causing him severe mental and physical pain or suffering” and injunctions restraining the Minister from breaching a statutory or common law duty of care “by holding the plaintiff in indefinite held custody” so as to cause him severe mental or physical pain or suffering or to place him at a real risk of self‑harm. Thirdly, he seeks a declaration that it is in the public interest for the Minister to consider exercising the s 197AB residence determination power in respect of him.

The defendants submit that the plaintiff’s application does not disclose any arguable basis for the relief sought and that it is therefore appropriate for this Court to dismiss the application pursuant to r 25.09.1 of the High Court Rules 2004 (Cth). Alternatively, the defendants argue that the application should be remitted to the Federal Circuit Court of Australia for determination.

For the reasons set out in Kazemi v Home Affairs, the plaintiff’s application does not disclose any arguable basis for any of the relief sought in any of the three categories. The application should be dismissed pursuant to r 25.09.1 of the High Court Rules 2004 (Cth).

For these reasons, the orders of the Court are as follows:

1. The plaintiff's application be dismissed under r 25.09.1 of the High Court Rules 2004 (Cth).

2. The plaintiff pay the costs of the defendants.

AT 9.30 AM THE MATTER WAS CONCLUDED

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^[1] [2020] HCATrans 124.

^[2] [2020] HCATrans 126.

^[3] [2020] HCA 30.