AZC20 v Minister for Home Affairs

• Jurisdiction: Australia Federal only
• Judgment Date: 13 October 2021
• Neutral Citation: [2021] FCA 1234
• Date: 13 October 2021
• Court: Federal Court

Federal Court of Australia

AZC20 v Minister for Home Affairs [2021] FCA 1234

File number:	VID 89 of 2021 VID 503 of 2021
Judgment of:	RANGIAH J
Date of judgment:	13 October 2021
Catchwords:	MIGRATION LAW – Migration Act 1958 (Cth) – detention of unlawful non-citizen under s 189 for eight years – where applicant unauthorised maritime arrival – application for habeas corpus and other relief –– application for mandamus to compel removal to regional processing country – held that s 198AD applies to the applicant – order made to compel performance of duty under s 198AD(2) to take applicant to a regional processing country – where applicant seeks to be detained at private residence pending removal – consideration of Court’s power to make directions as to place and mode of detention – order made that applicant be detained at private residence pending performance of duty under s 198AD(2)
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 23, 24, 32AB, 33, 37N Migration Act 1958 (Cth) ss 5, 5AA, 13, 14, 46A, 189, 195A, 196, 197AB, 198, 198AA, 198AD, 198AE, 198AF, 198AG, 198AH, 198B, 199, 200, 245F, 249, 273, 473BA, 473BB, 473DB, 473DC, 473DD, 473DE, 473DF, 501, Part 7AA Migration Amendment (Unauthorised Maritime Arrivals and Other Measures) Act 2013 (Cth) Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) s 25 Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) Explanatory Memorandum, Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2011 (Cth) Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 (Cth) Minister for Home Affairs (Cth), Migration (Direction for Regional Processing Countries) Instrument 2021
Cases cited:	AJL20 v Commonwealth of Australia (2020) 279 FCR 549 Al-Kateb v Godwin (2004) 219 CLR 562 AOU21 v Minister for Home Affairs [2021] FCAFC 60 AQM18 v Minister for Immigration and Border Protection (2019) 268 FCR 424 AZC20 v Minister for Immigration & Anor [2020] FCCA 2317 BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 91 Blatch v Archer (1774) 1 Cowp 64 Commonwealth of Australia v AJL20 [2021] HCA 21; (2021) 391 ALR 562 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 HFM043 v Republic of Nauru [2018] HCA 27; (2018) 359 ALR 176 Jackson v Sterling Industries Ltd (1987) 162 CLR 612 McHugh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 223; (2020) 385 ALR 405 Okwume v Commonwealth of Australia [2016] FCA 1252 Plaintiff M61/2010E v Commonwealth of Australia (2010) 243 CLR 319 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42 Plaintiff M96A/2016 v Commonwealth of Australia (2017) 261 CLR 582 Plaintiff S156/2013 v Minister for Immigration and Border Protection (2014) 254 CLR 28 R v A2 [2019] HCA 35; (2019) 93 ALJR 1106 SAS Trustee Corporation v Miles (2018) 265 CLR 137 SBEG v Secretary, Department of Immigration and Citizenship (2012) 208 FCR 235 SBEG v Secretary, Department of Immigration and Citizenship (No 2) [2012] FCA 569; (2012) 292 ALR 29 Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 259 FCR 576 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 Thomson Australian Holdings Proprietary Limited v Trade Practices Commission (1981) 148 CLR 150 WAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1625 WKMZ v Minister for Home Affairs [2020] FCA 1127
Division:	General Division
Registry:	Queensland
National Practice Area:	Administrative and Constitutional Law and Human Rights
Number of paragraphs:	176
Date of last submissions:	14 September 2021 (Respondents) 8 September 2021 (Applicant)
Date of hearing:	18 and 19 May 2021, 15 September 2021
Counsel for the Applicant:	Mr M Albert
Solicitor for the Applicant:	Clothier Anderson Immigration Lawyers
Counsel for the Respondents:	Ms A Wheatley QC with Mr B McGlade (18 and 19 May 2021) Mr P Knowles with Mr B McGlade (15 September 2021)
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 89 of 2021
BETWEEN:	AZC20 Applicant
AND:	MINISTER FOR HOME AFFAIRS First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent

		VID 503 of 2021
BETWEEN:	AZC20 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ; SECRETARY, DEPARTMENT OF HOME AFFAIRS Second Respondent

order made by:	RANGIAH J
DATE OF ORDER:	13 OCTOBER 2021

THE COURT DECLARES THAT:

1. Section 198AD(2) of the Migration Act 1958 (Cth) (the Act) applies to the applicant.

THE COURT ORDERS THAT:

2. The Secretary of the Department of Home Affairs (the Secretary) must perform, or cause to be performed, the duty under s 198AD(2) of the Act to, as soon as reasonably practicable, take the applicant from Australia to a regional processing country.

3. From no later than 1.00 pm [AWST] on 27 October 2021:

   1. the Secretary is to cause any detention of the applicant in immigration detention pending performance of the duty described in Order 2 to occur at the address set out in the affidavit of Anette Hermann filed on 8 September 2021; and

   2. the applicant be detained at that address by being in the company of and restrained by one or more “officers” as defined under the Act, or by another person or persons directed by the Secretary or Australian Border Force Commissioner to accompany and restrain the applicant.

4. The parties and Anette and Miguel Hermann are to participate in mediation before a Registrar of the Court, on a date and at a time and place to be fixed by the Registrar after consultation with the participants, to reach agreement upon arrangements for the immigration detention described in Order 3.

5. The parties and Anette and Miguel Hermann each have liberty to apply in respect of Orders 3 and 4.

6. The application for a writ of habeas corpus is dismissed.

7. The applicant file and serve any submissions as to costs (not exceeding three pages) by 4.30 pm [AEST] on 27 October 2021, and the respondents file and serve any submissions as to costs (not exceeding three pages) by 4.30 pm [AEST] on 11 November 2021; and any question of costs will be decided on the papers.

8. Unless submissions are...