Released from a detention centre due to covid-19 risks

Federal Court. Court ordered that Minister cease to detain the applicant at the Melbourne Immigration Transit Accommodation centre (MITA) due to the risk of covid-19 entering the MITA and then infecting the applicant. In practical terms, this means Minister will need to place applicant at a different detention centre.

Some of the questions to the Federal Court (FCA) were as follows:

Question 1: Does the FCA have jurisdiction to hear and determine a claim that the Respondents are committing the tort of negligence against someone detained under the Migration Act 1958 (Cth)?

Question 2: Does an applicant for injunctive relief need to establish that "there is a prima facie case or a serious question to be tried, in the sense that if the evidence remains as it is at trial, there is a probability that the applicant will be held entitled to the relief sought"?

Question 3: Does an applicant for injunctive relief need to establish that "the inconvenience or injury which the applicant will be likely to suffer if an injunction were refused outweighs or is outweighed by the inconvenience or injury which the respondents would suffer if an injunction were granted"?

Question 4: If the answer to Question 3 is "yes", does the assessment of the balance of convenience include "consideration of whether damages or other remedies would be an adequate remedy in the circumstances"?

Question 5: Can it be said that, "if the balance of convenience favours a respondent, an applicant will need to establish a stronger prima facie case to support an interlocutory injunction", and that, "conversely, where the balance of convenience favours an applicant, then the strength of the prima facie case required to support the grant of an injunction diminishes"?

Question 6: Can it be said that, in cases in "which the grant or refusal of an interlocutory injunction may in a practical sense determine the substance of the matter in issue on a final basis, the Court should give particular attention to the strength of the applicant’s case for final relief"?

Question 7: Does the Commonwealth owe a duty of care to persons kept in immigration detention?

Question 8: Does the FCA have "power in an appropriate case to restrain the respondents from causing a person’s immigration detention to continue at a place or in a form that constitutes a continuing tort"?

Question 9: If the answer to Question 7 is "yes", does the "duty of the Commonwealth to persons held in immigration detention is one which requires the exercise of such care for the applicant’s health and safety as is reasonable in the circumstances"?

Question 10: Does the applicant need to establish the presence of any actionable damage or injury in order to succeed in establishing that there is a prima facie case for injunction? Or can that prima face case be established by reference to an apprehended tort?

The FCA answered those questions as follows:

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