Federal court of australia

2.The Statutory Setting

3.Migration Act

29 Under s 198AD(2), unauthorised maritime arrivals must be taken, as soon as is reasonably practicable, to a “regional processing country.” For that purpose, officers were empowered to place the applicant on a vehicle or vessel, restrain her on a vehicle or vessel, remove her from the place at which she was detained or from a vehicle or vessel, and use such force as was necessary and reasonable (s 198AD(3)).

30 Regional processing countries are countries designated by the Minister under s 198AB(1). On 10 September 2012, the then Minister had designated Nauru as a regional processing country under s 198AB(1).

31 The purpose of the regional processing scheme, which had the above consequences for the applicant, was the following (s 198AA):

Subdivision B—Regional processing

198AA Reason for Subdivision

This Subdivision is enacted because the Parliament considers that:

(a) people smuggling, and its undesirable consequences including the resulting loss of life at sea, are major regional problems that need to be addressed; and

(b) unauthorised maritime arrivals, including unauthorised maritime arrivals in respect of whom Australia has or may have protection obligations under the Refugees Convention as amended by the Refugees Protocol, should be able to be taken to any country designated to be a regional processing country; and

(c) it is a matter for the Minister and Parliament to decide which countries should be designated as regional processing countries; and

(d) the designation of a country to be a regional processing country need not be determined by reference to the international obligations or domestic law of that country.

32 However, the scheme need not necessarily have applied to the applicant: s 198AE permitted the Minister, if he thought it to be in the public interest to do so, to determine in writing that s 198AD did not apply to an unauthorised maritime arrival. Various procedural requirements applied in respect of such a determination including the obligation to lay the determination and the reasons for it before both Houses of Parliament (subs 198AE(4)–(6)).

33 Section 198AHA of the Act deals with arrangements in relation to the regional processing functions of a country. Specifically, the Commonwealth may:

(a) take, or cause to be taken, any action in relation to the arrangement or the regional processing functions of the country;

(b) make payments, or cause payments to be made, in relation to the arrangement or the regional processing functions of the country;

(c) do anything else that is incidental or conducive to the taking of such action or the making of such payments.

Subsection 198AHA(3) provides that subs (2) is intended to ensure that the Commonwealth has capacity and authority to take action, without affecting the lawfulness of the action. Subsection (4) provides that nothing in s 198AHA limits the Commonwealth’s executive power. Subsection (5) defines terms, as follows:

action includes:

(a) exercising restraint over the liberty of a person; and

(b) action in a regional processing country or another country.

arrangement includes an arrangement, agreement, understanding, promise or undertaking, whether or not it is legally binding.

regional processing functions includes the implementation of any law or policy, or the taking of any action, by a country in connection with the role of the country as a regional processing country, whether the implementation or the taking of action occurs in that country or another country.

34 As Gageler J noted in Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 at [181], s 198AHA(3) clarifies that s 198AHA(2) is directed to nothing other than conferring statutory capacity or authority on the Executive Government to undertake action which is or may be beyond the executive power of the Commonwealth in the absence of statutory authority.

35 Section 198B provides that “an officer may, for a temporary purpose, bring a transitory person to Australia from a country or place outside Australia”. The applicant is a transitory person: there is no issue that the section may apply to her. Subsection (2) provides thus:

(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:

(a) place the person on a vehicle or vessel;

(b) restrain the person on a vehicle or vessel;

(c) remove the person from a vehicle or vessel;

(d) use such force as is necessary and reasonable.

4.Agreements as between the Commonwealth and Nauru

36 On 3 August 2013 a Memorandum of Understanding was executed on behalf of the Governments of Australia and Nauru (“MOU”). The MOU noted, inter alia, that Australia “appreciate[d] the acceptance by the Republic of Nauru to host Transferees in Nauru, including at one or more Regional Processing Centres or under community-based arrangements, and to provide Transferees who the Republic of Nauru determines to be in need of international protection with settlement opportunities.”

37 Clause 6 of the MOU, under the heading “Guiding Principles,” provided that the Commonwealth would “bear all costs incurred under and incidental to this MOU as agreed between the Participants”. By cl 7 the Commonwealth “may” transfer and Nauru “will” accept transferees. Administrative measures giving effect to the MOU were to be settled between the parties (cl 8). By cll 10–11 Nauru “will” host one or more Regional Processing Centres and “may” also host transferees under other arrangements including community-based arrangements.

38 By cl 12, transferees determined to be in need of international protection may settle in Nauru, subject to agreement between participants as to arrangements and numbers. Such agreement was to be reviewed on a 12-monthly basis. By cl 13, the Commonwealth would assist Nauru in settling in third countries those persons determined to require international protection but who were not permitted to settle in Nauru under cl 12. By cl 14, those persons not determined to need international protection might be returned, with the Commonwealth’s assistance, to their country of origin or a third country.

39 Clauses 21–22 provided for communications concerning day-to-day operations of the MOU to be between the Secretary for Justice and Border Control of Nauru and the Australian Department of Immigration of Citizenship, and for the establishment of a Joint Committee, to meet regularly, with responsibility for the oversight of practical arrangements required to implement the MOU.

40 On 11 April 2014, a document entitled “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru” was executed on behalf of Australia and Nauru (“Administrative Arrangements”). The Administrative Arrangements provided, inter alia, that:

(1) the Commonwealth would bear all costs under and incidental to the MOU, excluding certain presently-irrelevant costs (cl 1.1);

(2) the Commonwealth would conduct initial checks for transferees (cl 2.2.1) and that transferees would undergo a health assessment before being transferred to Nauru (cl 2.2.2);

(3) the Commonwealth would lodge applications with Nauru for “Regional Processing Centre visas” for transferees under the applicable Nauruan regulations (cl 2.2.6);

(4) Transferees would, on arrival at Nauru, be escorted by “Service Providers”, with assistance from Nauruan officials, to a regional processing centre (cl 3.4);

(5) Refugee status determinations would be made under Nauruan law (cl 5.2.1);

(6) the Commonwealth would engage and fund contractors, including interpreters, to assist in the refugee status determination process (cl 5.2.2);

(7) merits review would be provided by Nauru (cl 5.3.1), with the cost of merits review to be met by the Commonwealth (cl 5.3.2);

41 Clause 4 of the Administrative Arrangements dealt with arrangements for regional processing centres. As the applicant is no longer in such a centre, having been accepted as a refugee, that is not necessary to set out in great detail. However, it is worthwhile noting the following matters:

(1) the “Operational Manager” of a centre would be appointed by Nauru and would have the day-to-day management of the centre (cl 4.1.2);

(2) the Operational Manager would be supported by “Service Providers and Staff Members,” who would provide welfare, care, security, health and medical, education, counselling, interpreter services and other relevant services (cl 4.1.3);

(3) the Commonwealth would appoint a “Programme Coordinator” whose responsibility was to manage all Australian officers and services contracts in relation to a centre, in close liaison with the Operational Manager (cl 4.1.4);

(4) the Operational Manager, with assistance from Service Providers, would monitor the welfare, conduct, and safety of transferees (cl 4.1.6). Service Providers would be contracted to provide adequate security to ensure the safety of those residing in the centre and the safety of the centre (cl 4.3.1).

42 There were various Service Providers. On 24 March 2014 the Commonwealth and Transfield Services (Australia) Pty Ltd (“Transfield”) entered into a “Contract in relation to the Provision of Garrison and Welfare Services at Regional Processing Countries.” On 2 September 2013, Transfield and Wilson Parking Australia (1992) Pty Ltd (“Wilson Security”) entered into a “Subcontract Agreement General Terms and Conditions in relation to the Provision of Services on the Republic of Nauru”. That was in effect until 28 March 2014. On 28 March 2014 Transfield and Wilson Security entered into another contract entitled “Subcontract Agreement General Terms and Conditions in relation to the provision of Services on the Republic of Nauru.” The services provided under the two Wilson Security subcontracts were substantially the same. Approval was given by the Commonwealth for entry into both subcontracts.

43 The Commonwealth also entered into a contract with “Save the Children Australia”, the employees and contractors of which provided services relating to the welfare and engagement of transferees. It contracted with International Health and Medical Services Pty Ltd (“IHMS”), the employees and contractors of which provided health screening and assessment services, preventative health care, integrated primary health care, health advice, and referral to secondary and tertiary health services. It contracted with Craddock Murray Neumann Lawyers Pty Ltd, the employees and contractors of which assisted transferees in making protection claims in Nauru. And, as I explain in more detail below, it contracted with “Adult Multicultural Education Services” (trading as “AMES”) the employees and contractors of which provided settlement services to eligible refugees in Nauru.

5.Conditions relating to detention of asylum seekers on Nauru

44 It is not necessary for me to say a great deal in relation to the conditions of detention on Nauru. It is not in contest that the applicant is not in detention and has not been for some time. Also, it was admitted that the Commonwealth “participated in the detention, maintenance and care of the applicant while her claim for refugee status was being processed … and paid for all aspects of her detention, care and maintenance during that time.”

45 Nevertheless, the applicant relied upon the conditions of her detention as going to the degree of control exercised by the Commonwealth over her during that time. So, some further detail is required.

46 The applicant referred me to the exposition of the facts by Gordon J in M68 at [279]–[346]. Gordon J was in dissent in the result but most of the facts that her Honour there set out were agreed in a special case put before the High Court or in any event would not have been controversial on the face of documents available to her Honour (relevantly, most of which were also before me). At [353], her Honour concluded that the Commonwealth, by its acts and conduct, detained the Plaintiff outside of Australia. Drawing from her earlier exposition, her Honour relied upon acts and conduct of the Commonwealth, being:

(1) making the directions on 29 July 2013 and 15 July 2014, pursuant to s 198AD(5) of the Migration Act, with respect to regional processing countries to which particular classes of unauthorised maritime arrivals must be taken and stipulating that Nauru was such a country;

(2) signing the MOU with Nauru, whereby the Commonwealth could decide to transfer unauthorised maritime arrivals to Nauru, would bear all costs incurred under or incidental to the MOU, would put in place and participate in the Administrative Arrangements and the day-to-day practical arrangements for the implementation of the MOU on Nauru and would assist Nauru in removing Transferees not found to be in need of international protection;

(3) removing the Plaintiff from Christmas Island to Nauru pursuant to s 198AD(2) of the Migration Act on 22 January 2014 and, for the purposes of effecting that removal, exercising powers in s 198AD(3) of the Migration Act;

(4) applying to the Nauruan Justice Secretary, without the consent of the Plaintiff, for the grant of a RPC Visa to the Plaintiff and paying to Nauru the fee payable for the grant of the RPC Visa to the Plaintiff, whilst knowing that the RPC Visa specified that the Plaintiff had to reside at the Nauru RPC and that the RPC Act also required the Plaintiff to reside at the Nauru RPC;

(5) on the Plaintiff’s arrival on Nauru, first the Service Providers contracted by the Commonwealth (with the assistance of Nauruan officials) escorting the Plaintiff to transport and taking her to the Nauru RPC and, then, the Commonwealth officials providing all the relevant documentation relating to the Plaintiff to Staff Members at the Nauru RPC;

(6) having the power to contract with, contracting with, and paying for, Transfield to provide the Nauru RPC;

(7) providing the “security infrastructure” at the Nauru RPC, which includes “perimeter fencing, lighting towers and an entry gate”;

(8) having the power to contract with, contracting with, and paying for, Transfield to ensure that the security of the perimeter of the Nauru RPC is maintained at all times in accordance with policies and procedures as notified from time to time by the Commonwealth;

(9) “requiring” Transfield to “exercise use of force” within the Nauru RPC in certain circumstances;

(10) having significant governance responsibilities and control at the Nauru RPC, including participation in the Joint Committee, participation in the Joint Working Group, the power to appoint the Operational Manager responsible for the day-to-day operation of the Nauru RPC, the power to appoint the Programme Coordinator responsible for managing all Australian officers and services contracts in relation to the Nauru RPC and the power to appoint the provider of the Nauru RPC;

(11) having contracted for, and having, the power to terminate (at its own discretion) the contract for the provision of the Nauru RPC and to “Step In” and take over the Nauru RPC; and

(12) having contracted for, and having, the power to control the content of and compliance with the OPC Guidelines.

47 With few exceptions, all of the documents to which Gordon J referred in her exposition of the facts at [282]–[346] were before me. I was not provided with a copy of the Asylum Seekers (Regional Processing Centre) Act 2012 (Nauru) (“RPC Act”), which Gordon J discussed at [314]–[318], nor with a copy of the “RPC Rules”, which Gordon J discussed at [319]–[320]. Also, for reasons that are not clear to me, paragraphs 5 and 6 of the M68 special case, which was in evidence before me, are among those excised. They record that on certain dates the Minister made directions concerning where unauthorised maritime arrivals were to be taken. I cannot imagine why that is controversial, but in any event I do not rely on those matters. The matters that are italicised in the above extract are those in respect of which I do not have evidence, and upon which I do not rely. The unfootnoted facts to which Gordon J referred in her exposition were set out in the Special Case Pursuant to Rule 27.08 put before the High Court, which special case (subject to some excisions) was also before me.

48 Gordon J held that Plaintiff M68 was being detained by the Commonwealth. She was in the minority in that result. French CJ, Kiefel and Nettle JJ held at [36] that the plaintiff was detained by Nauru and not the Commonwealth. Keane J’s conclusion was substantially the same (at [239]). However, Keane J also said that the Commonwealth’s arrangements “procured or funded or caused restraints over the plaintiff’s liberty”. Bell J held that the Commonwealth “exercised effective control” over the detention of transferees, and that the plaintiff’s detention was, “as a matter of substance, caused and effectively controlled by the Commonwealth parties” (at [93]). Gageler J held that the Commonwealth had procured the plaintiff’s detention (see [173]–[175]). Gordon J held that the Commonwealth “detained the Plaintiff” (at [353]).

49 The differences as between the various judgments on this question were, however, as to the conclusions of ultimate facts that ought to follow from fairly uncontroversial precursor facts. The content of the various documents put before the High Court and of the facts agreed in the special case were not in dispute. The dispute centred on whether those facts properly led to the conclusion that the Commonwealth detained the plaintiff on Nauru. The answer was that it did not. But that does not render incorrect the facts as summarised by Gordon J. Nor did it render incorrect the 12 points that I have quoted above from her Honour’s judgment. In my opinion, those twelve points are also supported by the evidence before me (with the exception I have noted in relation to the italicised portions). They describe, nonexhaustively, the Commonwealth’s involvement in the applicant’s detention on Nauru.

6.Agreements as between the Commonwealth and Service Providers in relation to provision of services to refugees in Nauru

50 After the applicant ceased to be detained on Nauru, many of the facts set out under the previous heading ceased to apply to her. However, the Commonwealth continued to have involvement in the conditions of the applicant’s existence on Nauru. It admitted that it paid for and continues to pay for her accommodation on Nauru. It admitted that it paid all of the applicant’s visa and other fees payable in respect of her residence in Nauru. What is more, it admitted that it had provided certain settlement services to the applicant, as I will now detail.

51 The Commonwealth agreed with Nauru in the Administrative Arrangements to meet “Settlement support costs” for those settled in Nauru. “Service Providers” would ensure that refugees had access to health, education, counselling, interpreters, and other relevant services for day to day living (cl 6.2.3). A “Service Provider” was defined as a company or organisation/entity contracted to provide a service at a centre or in relation to transferees.

52 Ms Nerys Jones, a Commonwealth public servant, gave evidence of contracts with such service providers. She deposed that the Commonwealth had entered into agreements for contracted parties to provide “health and settlement services” for persons accepted as refugees by Nauru ([6]).

7.Settlement services

53 By letter of intent dated 16 May 2014, and letter of extension dated 18 July 2014, the Commonwealth agreed with “Save the Children Australia” to provide settlement services to refugees in Nauru.

54 On 5 December 2014, the Commonwealth entered into an agreement with AMES in place of Save the Children Australia to provide settlement services to refugees in Nauru.

55 AMES is the lead member of a consortium contracted to provide these services. The other member of the consortium is “Multicultural Development Association.” Together, they trade under the name “Connect Settlement Services” (“Connect”) in Nauru.

56 The settlement services contract requires Connect to provide services including the following: needs assessments and case management; English language training; local cultural orientation; access to vocational training; links to services including for education, health and employment services and vocational training; allocating accommodation and accommodation support; income support management; and links to other services and social and religious activities as required to assist refugees to integrate into Nauruan society.

57 Ms Jones deposed that each refugee is assigned case managers by Connect to assist in transition to living in the Nauruan community. Connect’s case managers carry out initial needs assessments and develop Settlement Support Plans for each refugee. Connect is required to ensure that case managers regularly meet with refugees and update the plan with the aim of developing independence and self-agency for each refugee. Ms Jones deposed that the contract envisages that most refugees will have their settlement needs met, including the removal of all support including income support, and exit the service within 6-12 months.

58 All of the foregoing services are funded by the Commonwealth. In relation to accommodation, the Commonwealth sources or constructs accommodation and pays rent and utilities for that accommodation, and Connect manages the accommodation arrangements.

59 Connect is also responsible for reporting any incidents of which it becomes aware to the Department of Immigration and Border Protection. The Department manages the performance of Connect through contract management processes. Thus, neither the Department nor the Australian Border Force in Nauru has direct contact with refugees for the purpose of settlement service delivery.

8.Health services

60 By Heads of Agreement for the Provision of Settlement Health Services on Nauru, dated 2 December 2014, the Commonwealth contracted with IHMS to establish and maintain a “Settlement Health Clinic,” being a health clinic staffed and run by IHMS and funded by the Commonwealth.

61 The Clinic is located at the Republic of Nauru Hospital. It is accessible by refugees in Nauru at no cost. It is staffed by IHMS General Practitioners, Registered Nurses, Mental Health Nurses, a Counsellor, and an Obstetrician. Psychiatrist and Psychologist services are also available, through IHMS. The Clinic dispenses medications as required. Interpreters are accessible to support consultations, and are arranged by the Department. Health care is otherwise available to refugees at the Republic of Nauru Hospital at no cost.

62 IHMS is responsible, through its medical professionals, to treat those refugees who use the Clinic in accordance with professional obligations. IHMS is also required by contract to obtain informed consent to health care. As Ms Jones deposed, “[w]here the Department is advised by IHMS that medical treatment required for a refugee is not available on Nauru, the Department will facilitate the availability of treatment options either on Nauru or elsewhere through procedures established between the Department and IHMS.”

63 Relevantly, the agreement between IHMS and the Commonwealth provides that the IHMS is to provide health services in a manner that promotes objectives including “address[ing] the health needs of individual Refugees to a standard broadly commensurate with Nauruan standards” (cl A.1.1(g)), and “effectively manag[ing] risks associated with the Services” (cl A.1.1(h)). Services are to be provided through the Clinic on a needs-basis (cl A.2.2).

64 That includes “Primary Health Services (available to Refugees for the duration of the Agreement, or as advised by the Department) [including] facilitation of timely transfer of Refugees for urgent medical care not available in Nauru, location and extent of which to be agreed by the Department … .” (cl A.2.2(a)(vii)).

65 It also includes “Specialist Services”, involving the “develop[ment of referral] procedures to specialist services in conjunction with the Republic of Nauru Hospital” and “facilitation of specialist visits – leveraging off specialist visits to the Nauru Offshore Processing Centers where possible – based on Refugee need and/or as agreed by the Department” (cl A.2.2(c)).

66 The Settlement Clinic is open during business hours six days per week. Refugees are also able to access the Nauru Hospital. In particular, after-hours care is available for refugees who otherwise use the Clinic. The Nauru Hospital participates in an “Overseas Medical Referral” program which allows members of the Nauruan community, or refugees, to be referred overseas for medical treatment not available at the Nauru Hospital. When a refugee is referred under this program, the Operations Section processes the referral and, in the event it is approved, facilitates the medical transfer. The Commonwealth has no involvement when Nauruans are referred under the Overseas Medical Referral program.

67 Interestingly in the context of this case, IHMS was also responsible for ensuring that, in performing its obligations under the agreement, it complied and ensured compliance with “all applicable laws, including those applicable to Nauru and those Australian laws that are applicable to the Services or the Site” (cl 15.1.1).

9.Education services

68 The Commonwealth has entered into an agreement with the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as “Brisbane Catholic Education” to provide education support services to the Government of Nauru. Those services are provided to Nauruan children and children on regional processing centre visas and temporary settlement visas.

69 The applicant, being an adult, does not access these services. However, adult English language education and other adult education, including vocational training, is provided or facilitated by Connect.