CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Judge: MORTIMER J
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] FCA 1050
• Court: Federal Court
• Date: 05 July 2019

FEDERAL COURT OF AUSTRALIA

CEU19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 1050

File number:	VID 600 of 2019
Judge:	MORTIMER J
Date of judgment:	5 July 2019
Catchwords:	PRACTICE AND PROCEDURE – application for further interlocutory orders to effect the transfer of the applicant from Nauru to Australia – where applicant requires urgent medical and psychiatric treatment – where interlocutory order previously made requiring respondents to take all steps within their power to transfer the applicant from Nauru – where applicant remains on Nauru – where issues raised as to the Court’s power to make orders sought – whether the Court should make further orders to give effect to previous interlocutory order
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 17, 20, 37AF, 37AG, 37AI Judiciary Act 1903 (Cth) s 78B Migration Act 1958 (Cth) ss 198B, 198E Health Practitioners (Telemedicine Prohibition) Regulations 2019 (Nr)
Cases cited:	CCA19 v Minister for Home Affairs [2019] FCA 939 CDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 890 ELF18 v Minister for Home Affairs [2018] FCA 1368 EMK18 v Minister for Home Affairs [2018] FCA 1357 Gamogab v Akiba [2007] FCAFC 74; 159 FCR 578 Giddings v Australian Information Commissioner [2017] FCAFC 225 Habib v Commonwealth (No 2) [2009] FCA 228; 175 FCR 350 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 Moana v Minister for Immigration and Border Protection [2019] FCA 659 Petrotimor Companhia de Petroleos S.A.R.L. v Commonwealth [2003] FCAFC 3; 126 FCR 354 Plaintiff M68/2015 v Minister for Immigration and Border Protection [2016] HCA 1; 257 CLR 42 Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17 Rahmatullah v Secretary of State for Defence [2012] UKSC 48; [2013] 1 AC 614 R v Burgess; Ex parte Henry [1936] HCA 52; 55 CLR 608 R v Ross-Jones; Ex parte Green [1984] HCA 82; 156 CLR 185 R (Al Rawi) v Secretary of State for Foreign and Commonwealth Affairs [2006] EWCA Civ 1279; [2008] QB 289 Thomas v Mowbray [2007] HCA 33; 233 CLR 307 Thorpe v Commonwealth (No 3) [1997] HCA 21; 144 ALR 677
Date of hearing:	1 July 2019
Date of last submissions:	1 July 2019
Registry:	Victoria
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	100
Counsel for the Applicant:	Ms G A Costello
Solicitor for the Applicant:	Allens
Counsel for the Respondents:	Mr A Aleksov
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

		VID 600 of 2019
BETWEEN:	CEU19 Applicant
AND:	MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS First Respondent ; COMMONWEALTH OF AUSTRALIA Second Respondent

JUDGE:	MORTIMER J
DATE OF ORDER:	5 JULY 2019

THE COURT ORDERS THAT:

1. If by 4 pm on Friday 12 July 2019, the applicant has not been transferred to Australia in accordance with paragraph 2 of the orders of this Court made on 14 June 2019, then by 4 pm on Monday 15 July 2019, the respondents are to file and serve affidavit evidence:

   1. setting out what steps, if any, they have taken, since 1 July 2019, towards securing the applicant’s transfer from Nauru to Australia;

   2. providing an explanation as to why the applicant has not been transferred to Australia;

   3. identifying, by name, those individuals whom the respondents understand are responsible for any decisions or conduct which have caused or contributed to the situation that the applicant has not been transferred to Australia as contemplated by paragraph 2 of the orders of this Court made on 14 June 2019; and

   4. identifying the decisions or conduct of each of those individuals and how they have caused or contributed to the situation that the applicant has not been transferred to Australia as contemplated by paragraph 2 of the orders of this Court made on 14 June 2019.

2. The applicant has liberty to apply to the Court, on 24 hours’ notice to the respondents.

3. The respondents have leave to remove from the Court’s electronic file the affidavit of Alana Sullivan sworn 1 July 2019.

4. The affidavit of Alana Sullivan must be removed from the Court’s electronic file on or before 4 pm on Tuesday 9 July 2019; otherwise it is to remain on the Court’s electronic file and will be taken as read and relied upon by the respondents in the interlocutory hearing held on 1 July 2019.

5. The respondents have leave to file and serve any submissions they wish to make as to why the Court should not order the respondents to pay any legal costs incurred by the applicant in relation to the interlocutory application heard on 1 July 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MORTIMER J:

1. More than two weeks ago, this Court made orders to require the respondents to transfer the applicant to Australia for medical and psychiatric treatment, which he needed, and which was not available to him on Nauru. The relevant order made by the Court on 14 June 2019 was as follows:

The Respondents take all steps within their power to cause transfer of the Applicant as soon as reasonably practicable to a location in Australia where the Applicant can immediately access treatment as an inpatient at an Australian tertiary hospital in accordance with the recommendations of Dr Andrew Bezzina dated 14 May 2019 and Dr Hannah Lake dated 18 May 2019 and 5 June 2019, or as recommended by the clinicians and practitioners assigned to treat the Applicant upon his arrival in Australia, and if clinically indicated with access to an accredited interpreter as required during the course of treatment.

2. The applicant has not been transferred to Australia. He remains on Nauru. The most recent medical records in evidence before the Court reveal a man with serious medical and psychiatric issues which do not appear capable of being adequately addressed in his circumstances on Nauru.

3. At one level, responsibility for the applicant’s transfer having not been effected lies principally with the Government of Nauru. The evidence discloses that processes it insists be undertaken, and decisions it insists be made, are impeding the applicant’s transfer to Australia.

4. At another level, the responsibility for the applicant’s transfer having not been effected lies with the respondents, who have, on the evidence:

1. formed a view that they need to defer to the Government of Nauru by not engaging in any conduct which they apprehend might lead to criticism or complaint from the Government of Nauru, or which might cause the transfer of the applicant to be further impeded; and

2. chosen to give preference to an approach which places the Commonwealth’s relationship with Nauru ahead of the steps both the first respondent (under s 198E of the Migration Act 1958 (Cth)) and this Court (on 14 June 2019) have determined to be...