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

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

The Court declined to make the applicant's proposed mandatory orders requiring specific steps because, without deciding the respondents' constitutional power and foreign relations arguments, the orders would presently be futile: the evidence showed the applicant would not be permitted to board a flight from Nauru unless Nauruan processes, including the OMR process, permitted transfer, and Nauru controlled the airport, airline and airspace. The Court instead ordered the respondents to provide further affidavit evidence if the applicant had not been transferred by the specified date, and granted liberty to apply. The Court refused non-publication orders over Ms Sullivan's affidavit because...

Jurisdiction
Australia
Judgment Date
05 July 2019
Procedural Posture
Practice and Procedure; Interlocutory Application Concerning Transfer From Nauru to Australia for Medical and Psychiatric Treatment / Further Interlocutory Application Under Liberty to Apply After Interlocutory Transfer Order Made on 14 June 2019
Outcome
Application for the applicant's proposed mandatory interlocutory orders refused in that form; respondents ordered to provide further affidavit evidence if transfer had not occurred by 4 pm on 12 July 2019; applicant granted liberty to apply; non-publication application refused; respondents granted leave to remove...
Legal Topics
['offshore Processing' 'medical Transfer From Nauru' 'mandatory Interlocutory Orders' 'federal Court Jurisdiction and Power' 'non Publication and Suppression Orders' 'open Justice' 'duty of Care' 'costs']
['administrative and Constitutional Law' 'human Rights' 'migration' 'practice and Procedure'] ['offshore Processing' 'medical Transfer From Nauru' 'mandatory Interlocutory Orders' 'federal Court Jurisdiction and Power' 'non Publication and Suppression Orders' 'open Justice' 'duty of Care' 'costs']

Case Brief

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Procedural Posture

Practice and Procedure; Interlocutory Application Concerning Transfer From Nauru to Australia for Medical and Psychiatric Treatment / Further Interlocutory Application Under Liberty to Apply After Interlocutory Transfer Order Made on 14 June 2019

Legal Issues

  1. 1 ["Whether further interlocutory orders should be made to give effect to the Court's 14 June 2019 order requiring the respondents to take all steps within their power to transfer the applicant to Australia for treatment." 'Whether the Court should order the respondents to file evidence explaining steps taken and reasons for non-transfer.' 'Whether mandatory orders requiring specific steps such as permission to land in Australia, airline arrangements, escorts and directions to IHMS should be made.' "Whether the proposed orders were beyond the Court's power because they would direct the conduct of Australia's foreign relations." 'Whether non-publication or suppression orders should be made over the affidavit of Alana Sullivan under ss 37AF or 37AI of the Federal Court of Australia Act 1976 (Cth).' 'Whether the respondents should have an opportunity to make submissions on costs incurred by the applicant in relation to the 1 July 2019 interlocutory application.']

Ratio Decidendi

The Court declined to make the applicant's proposed mandatory orders requiring specific steps because, without deciding the respondents' constitutional power and foreign relations arguments, the orders would presently be futile: the evidence showed the applicant would not be permitted to board a flight from Nauru unless Nauruan processes, including the OMR process, permitted transfer, and Nauru controlled the airport, airline and airspace. The Court instead ordered the respondents to provide further affidavit evidence if the applicant had not been transferred by the specified date, and granted liberty to apply. The Court refused non-publication orders over Ms Sullivan's affidavit because...

Court Disposition

Application for the applicant's proposed mandatory interlocutory orders refused in that form; respondents ordered to provide further affidavit evidence if transfer had not occurred by 4 pm on 12 July 2019; applicant granted liberty to apply; non-publication application refused; respondents granted leave to remove...

Orders

  • ['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 made on 14 June 2019, then by 4 pm on Monday 15 July 2019, the respondents are to file and serve affidavit evidence setting out steps taken since 1 July 2019 towards securing...