Federal Court orders Government to remove man from immigration detention centre due to serious risk of COVID-19
BNL20 v Minister for Home Affairs [2020] FCA 1180
Overview
In August, the Federal Court ordered the Minister for Home Affairs to urgently remove an elderly man with multiple health conditions from a Melbourne immigration detention centre to guard against the serious risk of COVID-19 infection.
The man was 68 years old and suffered from health issues including type-2 diabetes and high cholesterol, which meant he was at high risk of severe disease or death if he were to contract COVID-19.
Following an interlocutory hearing, the Federal Court found there was a prima facie case that the Federal Government was in breach of its duty to exercise reasonable care for the man’s health and safety, as the evidence showed there was a real risk that he would contract COVID-19 in the detention environment.
The Court ordered the Minister to remove the man from the Melbourne centre, but it was beyond the Court’s power to compel his release from detention altogether.
Risk of COVID-19 in immigration detention
It was undisputed that places like detention centres and prisons are higher risk environments for outbreaks of COVID-19 due to the difficulties of practicing physical distancing. Two infectious diseases physicians gave expert evidence in support of the man’s case that the high rate of community transmission of COVID-19 in Victoria, together with the number of staff moving in and out of the centre each day, meant it was "inevitable" or a "near certainty" that the virus would enter the detention centre.
Once inside the facility, it would be “effectively impossible to control the spread of infection” given the close proximity of staff and people detained. The man gave evidence that the cleaning and disinfecting practices within the centre were inadequate.
On the basis of the expert evidence, the Court was satisfied that:
there was a real and foreseeable risk that COVID-19 would enter the detention centre in the near future;
the man was exposed to a materially higher risk of infection in detention than he would be if he was living in the community in Victoria under Stage 4 restrictions;
once the virus entered the facility, the likelihood of the man contracting it was "extremely high"; and
if infected, there was a real risk that the man would suffer serious debilitating health consequences, including a real risk of death.
Breach of duty of care
In considering whether to grant an interlocutory injunction to prevent the Minister from continuing to hold the man at the detention centre, the Court had to consider whether there was a serious question to be tried, and whether the ‘balance of convenience’ favoured granting the injunction.
The Minister argued that there was no prima facie breach of duty because there was nothing more the Government could reasonably do to manage the risks of COVID-19 in detention. However, the Court decided there was plainly a serious question to be tried as to whether the Government had taken all reasonable steps to minimise the risk. The Court observed that the Minister has a broad range of powers he could choose to exercise to comply with the duty of care (including granting the man a visa so he could leave immigration detention, or detaining him in a different type of facility).
Given the risk of serious health consequences for the man if relief was denied, the Court found that the balance of convenience weighed in his favour. Justice Murphy stated that "The risk that the applicant may become seriously unwell or die if an injunction is refused carries substantially more weight in the balance than the resource and expenditure implications for the Commonwealth and any wasted expenditure."
Relief for apprehended harm in exceptional circumstances
The Minister argued that the man should not be granted an interlocutory injunction to restrain a breach of duty of care when he had not yet suffered any damage – that is, he had not yet contracted COVID-19. The Court could only grant relief to someone who had not suffered any damage in exceptional circumstances.
The Court considered that the circumstances of the pandemic in Victoria and the declared state of emergency were exceptional, and on the evidence the risk of apprehended harm was imminent. Justice Murphy relied on the case of Plaintiff S99 v Minister for Immigration and Border Protection (2016) 243 FCR 17, which said that injunctions for apprehended harm are only rare because people rarely know in advance that they are at risk of harm as a result of negligence. However, where a risk is known in advance, and there are steps that could be taken to avoid that risk, the court should be able to intervene.
Ruling
Justice Murphy ruled that the man had made out a prima facie case that the Federal Government was in breach of its duty of care and that the balance of convenience favoured the granting of relief. He accordingly granted an injunction ordering the Minister to cease detaining the man at the Melbourne facility as soon as reasonably practicable.
No release from detention
The man had asked the Court to restrain the Minister from continuing to detain him at the specific centre in Melbourne where he was held. He could not ask the Court to order that he be released from detention altogether, because the Migration Act 1958 (Cth) requires that all persons without a visa must remain in detention, until they are granted a visa or leave Australia. The Act prevents any court from ordering a person’s release from detention (other than where the detention is unlawful).
The man argued that it was open to the Minister to grant him a visa or release him into ‘community detention’ in order to comply with the duty of care, but accepted that the powers of the Minister to do so are non-compellable.
Once the Court ordered that the man be removed from the Melbourne detention centre, it was up to the Minister to decide how to comply with the duty to exercise reasonable care for his health and safety.
The Minister ultimately decided to transfer the man to another detention centre in Western Australia, where there were lower rates of COVID-19, rather than release him into the community in Melbourne where his family reside.
Implications of the case
This highly significant judgment was the first time a court has recognised that the Federal Government has failed to adequately protect people in immigration detention from the risks of COVID-19.
There are currently more than 1,500 people held in immigration detention across Australia, including many people with underlying health conditions which put them at increased risk of harm from COVID-19. This decision means that the Federal Government may be in breach of its duty to exercise reasonable care for the health and safety of many other people who are detained.
According to medical experts like the Australasian Society for Infectious Diseases and the Australasian College for Infection Prevention and Control, the best way to effectively reduce the risk of COVID-19 transmission in detention facilities is to drastically reduce the number of people who are held there. So far, the Federal Government has refused to take this step, and has instead sought to address the growing number of people in detention by re-opening the centre on remote Christmas Island which was previously shut down.
Danielle Jones is a lawyer on secondment at the Human Rights Law Centre.