FEDERAL COURT OF AUSTRALIA

FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63

ORDERS

UPON THE UNDERTAKING OF THE APPLICANT by Counsel:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

(b)    to pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.    Pursuant to rule 9.63 of the Federal Court Rules 2011, FRX17 be appointed as litigation representative of FRM17.

2.    As soon as reasonably practicable and until the hearing and determination of the action or further order the Respondents will place the Applicant in a specialist child mental health facility with comprehensive tertiary level child psychiatric assessment in accordance with the recommendations of Professor Louise Newman dated 19 December, 21 December and 22 December 2017, or as agreed between the parties.

3.    On or before 4pm on 29 December 2017, the Respondents provide the Applicant and her Litigation Representative with medical records concerning the Applicant in their possession, custody or control, current up to 22 December 2017, including without limitation:

(a)    Full medical reports;

(b)    All clinical/progress notes in respect of the Applicant’s medical conditions including her mental health;

(c)    Copies of tests in respect of the Applicant’s medical conditions including her mental health;

(d)    Referral letters;

(e)    Specialist assessments;

(f)    Recommendations for medical transfer and safety;

(g)    Test records; and

(h)    Medical assessment records.

4.    An order that that on or before 4pm on 29 December the Respondents provide the Applicant and her Litigation Representative with of the following documents and records of the Applicant (whether electronic or in any other form) from 1 Jan 2013 current up to 22 December 2017 in their possession, custody or control, including without limitation all correspondence including emails and reports about the applicant which refer to:

(a)    the Applicant’s medical conditions or mental health,

(b)    medical transfers; and

(c)    the Applicant’s personal and physical needs,

passing between the Applicant, the Australian Border Force, IHMS and the contracted immigration security providers on Nauru.

5.    The Applicant is to file and serve a statement of claim by 4pm on 10 January 2018.

6.    The Respondents are to file and serve their defence by 4pm on 17 January 2018.

7.    The Applicant is to file any affidavits by 4pm on 24 January 2018.

8.    The Respondents are to file any affidavits by 4pm on 31 January 2018.

9.    The parties are to file and serve outlines of opening submissions by 4pm on 5 February 2018.

10.    The matter be listed for hearing at 10:15 am not before 7 February 2018 on an estimate of 2 days.

11.    On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) (the Act), publication of the following information be prohibited under s 37AF of the Act until further order or six months from today, whichever occurs first:

(a)    The name of the Applicant or any member of the Applicant’s family;

(b)    The age of the Applicant other than to state that she is a minor;

(c)    The Applicant’s country of origin; and

(d)    The identification of the boat on which the Applicant first arrived in Australia.

12.    Liberty to apply upon 24 hours’ notice.

13.    Costs to be costs in the cause.

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

REASONS FOR JUDGMENT

MURPHY J:

INTRODUCTION

1    Before the Court is an application for an urgent interlocutory injunction to require the respondents, the Minister for Immigration and Border Protection (the Minister), the Commonwealth of Australia and the Secretary of the Department for Immigration and Border Protection (the Secretary), to remove the applicant from the Republic of Nauru to a place where she can receive appropriate mental health care treatment.

2    The applicant is a young girl, not yet a teenager, and the application is brought by her mother as litigation representative. The applicant’s parents fled their country of origin with the applicant and her older sister. The family travelled by boat to Australia and arrived at Christmas Island in 2013. They were therefore “unauthorised maritime arrivals” (UMAs) as defined under s 5AA of the Migration Act 1958 (Cth) (the Act). They were taken by officers of the Commonwealth and placed on Nauru pursuant to s 198AD(2) of the Act, a country designated as a “regional processing country” pursuant to s 198AB(1) of the Act.

3    The applicant and her family were detained in the Regional Processing Centre (RPC) on Nauru until about late 2014. On 22 September 2014 Nauruan authorities assessed them to be refugees under the Refugees Convention. They were subsequently granted temporary settlement visas by the Nauruan government and released from detention to reside in the community on Nauru. The temporary settlement visas permit the applicant and her family to leave and re-enter Nauru but the reality is that they have nowhere to go unless or until some country agrees to resettle them. It is common knowledge that Australian government policy is that such persons are not permitted to resettle in Australia.

4    Being stuck on Nauru since 2013, coupled with the recent separation of her parents, appears to have taken a serious toll on the applicant’s mental health. She attempted suicide on 9 December 2017 by taking an overdose of medication and has continued to express suicidal ideation and the wish to end her life.

5    In the opinion of Professor Louise Newman, a specialist in child psychiatry, Professor of Psychiatry at the University of Melbourne, and a Director of the Centre for Women’s Mental Health at the Royal Women’s Hospital in Melbourne, major mood disorder and suicidal ideation and intent in a child so young are rare and extremely serious conditions. Professor Newman states that the applicant is an extreme suicide risk and that she is possibly developing a psychotic depressive illness. In Professor Newman’s opinion she requires urgent admission as an inpatient to a specialist tertiary level child psychiatric facility where she can have a comprehensive assessment by a qualified specialist in child psychiatry.

6    Following the applicant’s attempted suicide and her continued suicidal ideation the applicant’s representatives provided the respondents with Professor Newman’s initial report and requested the respondents urgently move the applicant to Australia so that she could receive appropriate specialist mental health care assessment and treatment. The respondents declined to transfer the applicant.

7    On 20 December 2017 the applicant’s representatives filed the proceeding herein, seeking an interlocutory injunction to remove the applicant from Nauru to a place where she could receive appropriate mental health care treatment. I listed the application for urgent hearing on the afternoon of Friday, 22 December 2017.

8    The respondents opposed the grant of an injunction. I made orders that day to require that, as soon as reasonably practicable and until the hearing and determination of the action or further order, the respondents remove the applicant from Nauru and place her in a specialist child mental health facility with the capacity to perform a comprehensive tertiary level child psychiatric assessment, in accordance with Professor Newman’s recommendations. I fixed an expedited timetable so that the substantive application may be listed for hearing shortly after 7 February 2018.

9    I now provide my reasons. In broad summary I granted the interlocutory injunction because:

(a)    for the purposes of the interlocutory application only, the respondents concede that a prima facie case exists. I take this as a concession that there is a serious question to be tried as to whether:

(i)    the respondents owe the applicant a duty of care to provide her with a level of medical care which is reasonably designed to meet her mental health care needs;

(ii)    in the circumstances of the present case, the content of the duty includes a duty to remove the applicant from Nauru to a place where she can be admitted for inpatient assessment and treatment in a specialist child mental health facility. ; and

(iii)    the Court has the power to make such an order on the final determination of this matter.

(b)    the balance of convenience strongly favours the grant of an injunction. If the interlocutory injunction is granted and the applicant is unsuccessful at the final hearing, it can be argued that the Commonwealth’s resources have been wasted. Against that, if the injunction is not granted, there is an extreme risk this unfortunate young girl will commit suicide or otherwise self-harm, or that her mental health will further deteriorate. The injury or damage the applicant may suffer if an injunction is refused – death or a further serious deterioration in her health – carries far more weight in the balance than the wasted expenditure the Commonwealth may suffer if an injunction is granted. Further, given the applicant’s extreme suicide risk, the relief sought in the proceeding may become nugatory unless the injunction is granted.

THE EVIDENCE

10    The applicant relied upon three affidavits by George Newhouse, the solicitor for the applicant, affirmed 20 December 2017 (the First Newhouse Affidavit), 21 December 2017 (the Second Newhouse Affidavit) and 22 December 2017 (the Third Newhouse Affidavit) together with the exhibits thereto. The exhibits include:

(a)    a memorandum of understanding between the governments of Australia and Nauru dated 3 August 2013, titled “Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia, relating to the transfer to and assessment of persons in Nauru, and related issues” (the MOU);

(b)    correspondence between the Asylum Seeker Resource Centre and Mr Newhouse on the one hand, and officers of the Department of Immigration and Border Protection (the Department), the Australian Government Solicitor (the AGS) the solicitor for the respondents, and International Health and Medical Services (IHMS) the entity contracted to provide health services for detainees and refugees on Nauru;

(c)    an unsworn affidavit of Dr Nick Martin, general practitioner, formerly a Senior Medical Officer with IHMS at the offshore detention centre on Nauru. Dr Martin had not sworn his affidavit in time for the hearing because he was travelling in remote northern Australia. I accepted his affidavit on the basis that a sworn copy of the affidavit will be filed as soon as practicable;

(d)    a copy of the clinical notes kept by IHMS regarding the applicant; and

(e)    five medical reports and emails by Professor Newman regarding the applicant.

11    The respondents relied upon an affidavit by Kingsley Woodford-Smith, Assistant Commissioner of Detention and Offshore Operations within the Australian Border Force, affirmed 22 December 2017.

THE FACTUAL BACKGROUND

12    This account is drawn from the affidavits filed by the parties. There are some gaps in the evidence and it was not tested by cross-examination. Some of the evidence is hearsay and Dr Martin’s affidavit had not been sworn as at the date of hearing. I accept that a somewhat different factual picture may emerge at the trial and I set out this factual background for the purposes of the interlocutory application only.

13    The applicant is a young girl, not yet a teenager, and at her lawyer’s request I will not reveal her age. I have made orders to suppress those parts of the evidence which her representatives said were capable of identifying her and her family.

14    As I have said, her parents took her and her older sister with them when they fled their country of origin, and they arrived by boat at Christmas Island in July 2013. The applicant and her family were taken by officers of the Commonwealth to Nauru and detained in the RPC. On 22 September 2014 they were assessed by Nauruan authorities to be refugees and they were subsequently granted temporary settlement visas to live temporarily in Nauru.

15    They then moved from the RPC to live in the community on Nauru. Their visas do not impose any movement restrictions upon them and they are able to leave and re-enter Nauru. However, they have nowhere to go unless or until some country agrees to resettle them. It is common knowledge that Australian government policy is that UMAs not be permitted to resettle in Australia.

Commonwealth support provided to the applicant and her family

16    Item 6 of the MOU provides that the Commonwealth will bear “all costs incurred under and incidental to this MOU” as agreed between the parties to the MOU. The evidence is that the applicant’s mother receives a fortnightly payment from the Commonwealth government and it tends to show that the Commonwealth funds the cost of the accommodation, education and healthcare provided to the applicant and her family. Mr Woodford-Smith deposed that free health care is made available to detainees and to persons later accepted as refugees at a health clinic staffed and run by IHMS, and is also available to refugees at the Republic of Nauru Hospital (RoN Hospital). Mr Woodford-Smith also deposed that since 8 December 2016 the Nauruan government has provided complex and transitional case management support and employment services to refugees through its contracted service provider HOST International Ltd (HOST). Mr Woodford-Smith said that the Commonwealth provides funding to the Nauruan government for these services.

The applicant’s deteriorating mental health

17    Mr Newhouse deposed that the applicant’s mother first became concerned about her daughter’s mental health in about April 2017, but her condition became noticeably worse after her parents separated. In passing I note that the evidence is not clear as to the date her parents separated. In his first affidavit Mr Newhouse said that the separation occurred in approximately May or June 2017, and Mr Woodford-Smith said that it occurred in approximately September 2017. The clinical notes kept by IHMS regarding the applicant (the clinical notes) are in evidence, as exhibits to the Third Newhouse Affidavit. The clinical notes for 8 and 9 March 2017 state that the applicant’s father moved to his girlfriend’s house on 8 March 2017.

18    To illustrate the state of the applicant’s mental health I now set out some information from the clinical notes, together with some information drawn from the First Newhouse Affidavit and one of Professor Newman’s reports:

(a)    on 8 October 2017, Sharyn Bunn, a child psychologist in IHMS’s employ, saw the applicant and her mother. The clinical notes state that applicant’s mother said that she was concerned about her daughter’s behaviour including low mood and social withdrawal which appeared to have manifested within the last month. They further state:

[The applicant] presented as reasonably groomed in sullen mood with angry affect. She reported that she is having trouble with her thoughts in that every time she tries to smile or thinks of happy things, intrusive “bad thoughts” enter her mind. She reported that she hears a voice behind her laughing. She identified it as a male voice and the laugh is sinister. [The applicant] stated that her bad thoughts relate to fears her family (mother and sister) will die and she will be left alone. She describes feeling anxious when she has these thoughts….[The applicant] stated that the voice tells her “dying is better than living, you’ll be free”. [The applicant] stated that she wants to die and she wants to kill herself and that if she was going to kill herself she would “make myself lost in the jungle and put a knife in my stomach”. [The applicant] blames the Australian government for her state of mind and says that she is trapped in no land and that she thinks about dying like the Sri Lankan man (from Manus Island) who recently committed suicide.

…

After [the applicant] discussed her concerns, she was asked to spend time in her bedroom whilst clinicians spoke with her mother. After approximately 5 mins [the applicant] began hitting the cupboard with her palm and throwing things around her room. Writer entered the room and asked [the applicant] to stop this behaviour, [the applicant] was crying and saying that the man was in the cupboard. [The applicant] also stated that she wanted to die because she is stuck in Nauru.

(Emphasis added.)

The notes state that the applicant had no history of self-harm but had expressed thoughts of wanting to die, without expressing an immediate plan, and that Ms Bunn assessed the applicant’s risk of self-harm to be moderate;

(b)    on 8 October 2017, Dr Vernon Reynolds, a visiting child psychiatrist contracted by IHMS, saw the applicant and her mother (accompanied by Ms Bunn). The clinical notes state the reason for consultation was “Concerns about increasing fearfulness over the last 4-5 weeks”. Dr Reynolds’ notes state:

[The applicant]…is reported to have had increasing anxiety over the last month with associated symptoms of reduced appetite, increased tearfulness, panic symptoms and disturbed sleep.

She reports panic episodes where she feels it is difficult to breathe and she becomes very tense. She starts to think that there is someone in her wardrobe or under the couch.

She has become increasingly irritable and angry with periods of yelling and screaming along with physically aggressive behaviour such as kicking out. Her sister and mother have been sleeping together as they have been scared of [the applicant’s] statements and behaviour. She has wanted to sleep with her mother too but there have been fears that she might hurt her mother and sister and she was clear that this was something she did not want to have happen.

Her parents separated recently and her father left the home to live with a new partner. [The applicant] has felt abandoned and angry about this. She has been expressing ideas that she is not liked or loved by anyone and that she is not wanted and is a burden to people. She has expressed suicidal ideas and thoughts that suicide would help her get free “from this bad life.” She expressed that she would miss her family and that they would miss her if she died.

… She has experienced intrusive bad thoughts and hearing distressing comments from “a man” who is from a foreign country and who says mean things… She says that this man tells her to do bad things.

(Emphasis added.)

The notes state that the applicant expressed ideas of suicide but no intent to act on these and that:

She presents with a range of symptoms and behaviours that are of concern however today there were no concerns around psychosis and currently her symptom[s] appear to be primarily anxiety and distress related phenomena. She is likely to respond well to therapeutic support and family work.

Dr Reynolds diagnosed the applicant as suffering from an Adjustment Disorder with disturbance of mood, anxiety and behaviour;

(c)    the applicant attempted suicide on 9 December 2017, doing so by taking an overdose of medication prescribed for her mother. An undated incident report prepared by Angela Foster of IHMS states that on 10 December 2017 the applicant told Arieta Tabua, a counsellor in IHMS’s employ, that she had taken some of her mother’s medication the previous evening. The applicant’s mother was advised to take the applicant to RoN Hospital for medical assessment;

(d)    the applicant’s mother says that, at the time, the applicant said that she no longer wanted to live, that her dreams could never come true and that she questioned why this was happening to her and her family. She also says that the applicant told IHMS staff that she would try to commit suicide again. The applicant was discharged late on the evening of 11 December 2017;

(e)    on 11 December 2017, Ms Bunn telephoned Dr James at the RoN Hospital. The clinical notes state that Dr James said that the applicant was a young girl who was admitted to hospital following a suicide attempt and who complained of respiratory distress, chest pain and abdominal pain due to ingestion of unknown amounts of medication. Dr James advised that he intended to discharge the applicant however he would like to ensure that she would be followed up by mental health and psychiatry services. Ms Bunn informed Dr James the IHMS’s mental health team would follow up and arranged a home visit for that day;

(f)    on 12 December 2017, Arieta Tabua, a counsellor in IHMS’s employ, saw the applicant and her mother. The clinical notes state:

[The applicant] showed me all the needle marks from the hospital and when exploring her feelings about it she said “the medication didn’t kill me, I will try something else”.

She stated “I will kill myself with a knife or jump off the rocks”. Explored it further and [the applicant] also disclosed recurrent suicidal ideation. She reported that she knows how to kill herself, as she has seen in the movies people stabbing themselves with knives. [The applicant] spoke about what triggered her suicide attempt and she said that a couple of days ago she saw her friend playing with her father and it triggered her anger because her own father was with someone else, and this has impacted on her a lot. She reported not feeling safe from everyone and also worried about her mother and sister’s safety. She expressed that she is sad and angry at everyone… During consultation [the applicant] disclosed that attempting suicide made her feel good.

(Emphasis added.)

(g)    on 13 December 2017, Ms Tabua prepared an Incident Report which summarised the applicant’s presentation the previous day in the following terms:

On 12th December 2017, at approximately 18:00 hrs [the applicant] disclosed experiencing suicidal ideation with intent and has plan.

(Emphasis added.)

Ms Tabua booked a psychiatrist to see the applicant on the morning of 14 December 2017.

(h)    on 14 December 2017, Andrew Mohanraj, a psychiatrist in IHMS’s employ, saw the applicant and her mother. Amongst other things the clinical notes state:

… Mother worried that [the applicant] might attempt some form of self harm since she kept mentioning that she wants to die and will kill herself. Mother has since hidden knives and sharp objects and potential ligatures in the house…

… Several themes were explored. Did she understand what it is to die? In her opinion what happens after she dies? Does that mean she will be separated with family and friends? She enjoyed her last birthday party. If she dies does she realise that there would be no more birthday parties? She wants to be a doctor and a gymnast when she grows up. If she dies, she will not be able to achieve her ambition of becoming a doctor and she would not have the fulfilment of helping people or caring for her mother. Would she want that?

It was clear that this bright child was a little confused on what it meant to be dead. She was persistent in her thought of wanting to die and leave this world but it was not quite synonymous with her intent to kill herself. She interspersed the theme of wanting to die with hopes of leaving Nauru and starting a new life elsewhere.

Low mood and congruent affect. No evidence of psychoses. Good attention span and concentration. Good abstract thinking and fairly good insight. Death wishes present but ambiguous when with responses with regards to suicidal intent or plan. No cognitive deficits.

Impression: Adjustment disorder with depressed mood.

The treatment plan included encouraging a normal routine, having diversionary activities, encouraging emotional support from her mother, daily visits by IHMS and “to consider in patient care if condition deteriorates”.

(i)    the applicant’s mother said that, at this time, she was told that the reason the applicant was discharged from the RoN Hospital was that the hospital could not provide the mental health care she required and she was advised to keep the applicant away from items which could harm her;

(j)    on 15 December 2017, Ms Tabua (accompanied by Ms Bunn and Isaac, another IHMS psychologist), saw the applicant. The clinical notes (entered on 19 December) state that the applicant was lying in bed watching television and it took several minutes for the applicant even to acknowledge their presence. The applicant “talked about her heart and drew a picture of a heart and next to it was a heart broken in two.” The applicant drew a picture of a house in which her immediate and extended family would live in Australia and said that her dream was for her family to be united and “that would complete her heart again” ;

(k)    on 18 December 2017, Ms Tabua and Ms Bunn saw the applicant and her mother. The clinical notes state that the applicant’s mother said that she slept in the same room as the applicant due to a continuing fear that she might commit suicide. Prior to Ms Tabua and Ms Bunn leaving the applicant entered the room and began sobbing and the mother was advised to console her. The notes also state that:

[The applicant] did not express any current suicidal intent and given that [the applicant’s mother] was monitoring her closely her risk of self harm/suicide was considered moderate.

(l)    the applicant’s mother says that, as at 18 December 2017, she continued to be very concerned that the applicant would seek to harm herself again. She described the applicant as “depressed and aggressive at the same time” and said that she sleeps late at night, doesn’t really eat and only wants to write and draw;

(m)    on 20 December 2017 IHMS arranged for the applicant and her family to be moved into the Restricted Accommodation Area (RAA) within the RPC. The applicant’s mother said that was because the applicant had run away from her;

(n)    Professor Newman’s report dated 21 December 2017 states that she was informed that the applicant ran away from her mother on the evening of 18 December 2017, was found in a position to jump from a height, and said that a voice was telling her to “jump, jump, jump”. The applicant’s mother reported that she stopped the applicant from suiciding; and

(o)    the mother said, and the clinical notes confirm, that the applicant was not prescribed any medication and was not receiving regular specialist psychiatric care.

Professor Newman’s reports regarding the applicant’s psychiatric condition

19    The evidence from Professor Newman comprises:

    Two detailed medical reports regarding the applicant’s psychiatric condition, being reports dated 19 December 2017 (the First Newman Report) and 21 December 2017 (the Second Newman Report).

    Two further medical reports and an email concerning IHMS’s decision to move the applicant and her family into the RAA, being an undated report sent to Mr Newhouse on 21 December 2017 (the Third Newman Report), an email from Professor Newman to Mr Newhouse dated 21 December 2017 (the Fourth Newman Report) and a report dated 22 December 2017 (the Fifth Newman Report).

20    The First Newman Report states:

[The applicant’s mother] told me that her daughter had become stressed and anxious since the breakdown of her parents’ marriage and had spent a two month period being progressively withdrawn, disinterested in usual activities, tearful and sad and largely silent. Since early December she had been making repeated statements to the effect that she wished to end her life and that she had no future and would be better dead. This has caused her mother great concern and anxiety.

On December 9/10 [the applicant] took around 14 tablets including tramadol and Panadol and admitted she took these with the intent to end her life. She spent two nights in the hospital and was discharged in the care of her mother and visited by a mental health clinician. The mother is unaware if that clinician is a psychiatrist or psychologist but stated that she was told there is no specific treatment but that the child needs close supervision.

The child has continued to make suicidal statements and has episodes of agitation and screaming. The mother describes her as crying and screaming most of the time with poor sleep. She is reported to be eating very little.

The mother stated that [the applicant] has been making statements over the last few days that there is a man outside who is watching her and wishes to harm her. She screams and repeats that she is scared and wishes to die. She appears agitated and is not able to be reassured of her safety.

The mother feels that the child’s condition is deteriorating and that she cannot assure her safety or manage the situation.

CHILD STATE

The child was agitated during the discussion and screamed and moaned repeatedly stating that she was scared. She stated that a man outside would not leave her alone and repeated her suicidal wishes. She said that she heard the man outside the room and screamed at him to leave.

The child’s state of high agitation and distress made it impossible for her to engage in any direct questioning.

21    Professor Newman drew the following conclusions:

This child has recently made a serious suicide attempt and has repeatedly continued to express suicidal ideation and the wish to end her life. She has clear features of major depression with withdrawal, pervasive low mood, poor sleep and appetite disturbance and marked periods of agitation and distress. Of concern, she has more recently been expressing paranoid concerns and a belief that a man is coming to harm her.

In my view this is an extremely serious presentation and one where there is clearly an immediate risk of further suicidal behaviour. There is also the possibility that this child is developing a psychotic depressive illness.

The child is in need of immediate comprehensive psychiatric assessment by a qualified specialist in child psychiatry and given the nature of her persistent suicidality requires treatment in an inpatient child mental health facility with appropriate supervision. An evaluation is needed to clarify the diagnosis and specifically to assess any psychotic symptoms. Suicide attempts in a [child of this age] are extremely serious and this requires immediate assessment and treatment.

My recommendation is that urgent transfer to a child psychiatric facility be arranged for this child and that she be accompanied by her mother and sister.

(Emphasis added.)

22    In the Second Newman Report Professor Newman reviewed the clinical notes and specialist reports kept by IHMS regarding the applicant and the treatment IHMS provided. The report states:

I have reviewed the available reports which document ongoing mental health concerns for this child since her family were initially detained on Nauru and which subsequently worsened following the difficulties in the parental relationship and separation in March 2017. The records note significant symptoms consistent with clinical levels of depression and anxiety since October 2017 and significantly, the expression of suicidal ideation from early October. I note that the child has been managed with only supportive mental health approaches and monitoring and has not received any medical treatment until her suicide attempt on December 9, 2017.

I provide the following summary of her mental health evaluations and differential diagnoses:

1.    Oct 1, 2017 - [the applicant] described as having low mood, feelings of hopelessness and to be isolating herself and eating poorly.

2.    October 8, 2017 - [the applicant] describes to psychologist having intrusive bad thoughts and hearing the voice of a man laughing at her and telling her that dying is better than living. The male voice also commands her to harm others. She expresses suicidal ideation and is assessed at a moderate risk of self-harm. These assessments do not consider the possible diagnose [sic] of Major Depression.

3.    October 9, 2017 - child psychiatrist review considers [the applicant] to be experiencing depression and anxiety. No medical treatment is instigated.

4.    October 19, 2017 - Psychiatric Review reports ongoing suicidal ideation and hallucinations of a male voice saying everyone will die and [the applicant] will be alone. She is seen as having an Adjustment Disorder and anxiety.

5.    Mental health team monitoring in November 2017 notes [the applicant] to be unable to be engaged and no mental state examinations are recorded and there are no documented risk evaluations. Despite this she is said to be at low risk of self-harm.

6.    December 9, 2017 - [the applicant] is described as poorly responsive but not sad. No further assessment is documented. The child took an overdose with suicidal intent that evening and was hospitalised.

7.    December 12, 2017 (post discharge) - counsellor notes that [the applicant] has suicidal plans and she says she could jump from rocks or cut herself with a knife in order to end her life. She is described as sad with poor eye contact.

8.    December 14, 2017 Psychiatric review - notes low mood, persistent suicidal thoughts. Differential diagnosis remains of an Adjustment disorder.

9.    December 18, 2017 - [the applicant] is reported to be isolating herself [in] her room and crying all day. I have been informed that the child is reported to have run away from her mother that evening and was found to be in position to jump from a height and stated that a voice told her to “jump, Jump, Jump.” The mother states that she stopped the child from suiciding.

23    Following her review of the clinical records Professor Newman made the following assessments and criticisms of the diagnoses made by IHMS and the medical treatment provided to the applicant:

(a)    “there has been failure to consider the diagnosis of Major Depression and the significance of the hallucinations [the applicant] experiences”;

(b)    “there is inadequate focus on the mental states and picture of clinical deterioration”; and

(c)    “[i]t is concerning that even after a significant suicide attempt [the applicant] is discharged from hospital still in a suicidal state with no documented consideration of the role of anti-depressant and anti-psychotic medications and the need for specialist psychiatric hospitalisation”.

24    Professor Newman further said:

I note that [the applicant’s] suicidal ideation has been persistent since October with accompanying low mood, isolation and deteriorating self-care. This clinical picture is, in my opinion, consistent with a diagnosis of a major mood disorder and certainly indicates ongoing extreme risk. [The applicant’s] recent attempts to run away to the highway and her subsequent containment are a response to her serious risk of self-harming behaviours.

(Emphasis added.)

25    Professor Newman recommended that the applicant be urgently admitted to a specialist tertiary level child psychiatric facility and because the applicant would remain at extreme risk of suicide unless she was so admitted. The report states:

Major mood disorder and suicidal ideation and intent in a [age redacted] year-old child are rare and extremely serious conditions with a high risk of prolonged disorder and suicidal behaviour if inadequately treated. In general Child Psychiatry practice these conditions would be seen as urgent and the child admitted to a specialist tertiary level child psychiatric facility for further diagnostic assessment and review including brain imaging and exclusion of organic pathology. This is particularly important when there are hallucinations as in this case. Treatment of major depression and psychosis include[ing] psychopharmacology and cognitive-behavioural psychological therapy when the acute illness has improved.

There is considerable risk in the event of inadequate treatment where a child has ongoing ideas of suicide and particularly where the[y] express intent and have plans. In my view, [the applicant] remains at extreme risk of suicide if there is no immediate attention to her mental illness and transfer to a psychiatric facility.

(Emphasis added.)

Professor Newman’s reports regarding the adequacy of moving the applicant into the RAA

26    On 20 December 2017 the applicant, her mother and her younger sister moved into the RAA, presumably pursuant to IHMS’s recommendation, which is an area located within the RPC used for families to access respite care, usually on a seven day basis.

27    In the Third Newman Report Professor Newman states her opinion that this move was an inadequate and inappropriate response to the seriousness of the applicant’s psychiatric condition and the suicide risk that she presents. The report states:

I understand that [the applicant] has been placed in OPC1 Nauru Immigration Detention Centre following an episode where she ran away and attempted to get to a highway. This behaviour, particularly in the context of a recent suicide attempt and ongoing statements of her wish to end her life is particularly concerning and may represent a further attempt at self-harm or suicide.

I presume that some sort of assessment of her mental state has been made and on this basis a decision has been made that she is in need of containment and observation….

Given her recent serious and potentially fatal overdose which required hospitalisation and her statements which I witnessed of ongoing suicidal ideation I remain of the view that her condition is extremely serious and not one that can be safely managed in a community setting on Nauru. The recent episode indicated that the risk remains at a crucial level and the Nauru IDC cannot be seen as a specialist mental health setting for a suicidal [age redacted] year-old. I stress that suicidal acts in young children are rare and extremely serious events which require specialist Psychiatric assessment and treatment. Given what appears to be persistent and significant suicidality in this child I do not see it as appropriate on clinical grounds to attempt to manage her in the Nauru community setting. The placement of this child in the IDC in fact points to the need for containment but this is an inappropriate and non-therapeutic environment for a child with mental illness.

My clinical opinion, on the basis of the information provided to me, is that this child has severe mental illness and is an extreme risk of further suicidal behaviour. She requires a comprehensive tertiary level child psychiatrist assessment and containment in a specialist child mental health inpatient facility. These are not available on Nauru.

(Emphasis added.)

28    Similarly, the Fourth Newman Report states:

Thank you for forwarding this information from IHMS regarding the placement of this child in a respite family care accommodation unit for a potential period of seven days.

I make the following comments:

1.    This move indicates that there is a need for containment of the child due to ongoing risk of suicidal behaviour. However, this is not being provided in an appropriate facility.

2.    This unit does not meet the standards of a specialist child and adolescent psychiatric facility and is unlikely to be staffed by child and adolescent mental health professionals with experience in severe mental illness in children.

3.    It is unclear if any specific expert assessment or treatment of the child is being made available. It is only stated that IHMS staff will continue to be involved.

4.    I remain of the opinion that on clinical and risk grounds that this is a wholly inadequate and inappropriate response to a child with serious disturbance and will potentially increase risk of mental deterioration.

5.    There remains the need for admission to specialist psychiatric care. The serious nature of this child’s mental illness requires an urgent and considered treatment plan and will likely require ongoing care and not respond to simple containment without treatment for a seven day period.

(Emphasis added.)

29    In the Fifth Newman Report Professor Newman reiterated her opinion that housing the applicant and her family in the RAA was inadequate, and said:

Thank you for your correspondence regarding interim arrangements for the care of [the applicant] given her escalating distress and suicidal behaviour.

I refer to my previous opinions that it is in her best interests to be immediately transferred to an appropriate child and adolescent psychiatric facility for assessment and treatment. I note that she does not currently have access to child and adolescent mental health professional staff supervision and that her mother is finding it increasingly difficult to supervise her. The child recently ran from the mother’s care and was exhibiting suicidal behaviour.

Given the extreme risk of ongoing suicidal behaviour it is a matter of urgency that this child is in a safe environment with professional supervision. She should be housed in [an] area with her mother and sister supported by trained child and adolescent mental health staff on a 24 hour basis. The mother is not able to act as a supervisor in this manner, but given the age of the child the family can be housed together if support staff are available. These staff should be from psychiatric nursing or psychology background with experience in child mental illness.

The safety of the child requires trained supervision in a contained environment until she is transferred to an appropriate psychiatric facility. Supervision is essential as this child has now run away on two separate occasions and is experiencing command hallucinations urging her to suicide.

Given the persistent psychiatric symptoms and suicidal ideation the child requires an urgent child psychiatric review with a view to commencing appropriate treatment with antidepressant and anti-psychotic medications. These need to be given by trained staff and she requires close monitoring for side effects and response. This needs to be managed by child psychiatric nursing staff currently unavailable on Nauru.

(Emphasis added).

The adequacy of the treatment provided, and proposed to be provided, to the applicant on Nauru

30    Mr Woodford-Smith said, and I accept, that the following free healthcare services are available to the applicant and her family on Nauru:

(a)    access to the “Settlement Health Clinic”, which is staffed by IHMS general medical practitioners, registered nurses, mental health nurses, a counsellor and an obstetrician. Psychiatrist and psychologist services are also available through IHMS. The clinic is open during business hours six days per week and accessible by refugees living on Nauru at no cost;

(b)    access to healthcare at the RoN Hospital, which provides after hours care for refugees who otherwise use the health clinic;

(c)    within the RPC there is a health clinic maintained by IHMS staff, a Managed Accommodation Area (MAA) and a Supported Accommodation Area (SAA). The RoN Hospital, the health clinic, MAA and SAA have all been designated as mental health facilities pursuant to the Nauru Mentally Disordered Persons Act 1963, and the SAA can accommodate involuntary patients under that Act; and

(d)    the RAA, which is for respite care.

31    It is common ground that the applicant was seen by IHMS staff in relation to her mental health approximately 17 times from July 2017 until 19 December 2017, and that the frequency of the consultations increased following her parents’ separation. The applicant was usually seen by a psychologist and/or a counsellor, and she also saw a child psychiatrist (Dr Reynolds) twice prior to her suicide attempt, and a psychiatrist on at least one occasion after that attempt. Following her suicide attempt she received almost daily visits from IHMS psychologists and/or counsellors. Mr Woodford-Smith said, and I accept, that the applicant is currently being seen daily by a psychologist, and that there is a psychiatrist on Nauru who is also available to see her daily. Mr Woodford-Smith said that the RAA would continue to be made available for use by the applicant and her family, if that was clinically indicated.

32    Importantly, Mr Woodford-Smith deposed that IHMS staff consider that the applicant can be adequately treated as an outpatient in the Nauru community, and that too much additional attention may escalate the applicant’s behaviour. However, he said that if it is clinically required additional supervision of the applicant can be arranged. Further, if the applicant’s mental health deteriorates and IHMS health staff consider that they cannot provide her with suitable outpatient care, she will be referred to the RoN Hospital for assessment. If the RoN Hospital is of the view that the applicant cannot be treated on Nauru they will engage in a process for seeking outside medical assistance, called the Overseas Medical Referral (OMR) process.

33    Mr Woodford-Smith said that the OMR process works through a committee which meets weekly and as required. If a RoN Hospital medical director determines that a person requires treatment that is not available on Nauru a case report is prepared and presented to the OMR committee for consideration. Consideration will be given to whether to approve the referral to another country or to request assistance for treatment to be provided on Nauru, preparation of travel documents by the Nauruan government and the making of logistical arrangements, which involves liaison between Commonwealth officers and Nauruan authorities.

34    Mr Woodford-Smith said that in deciding what assistance the Commonwealth may provide to Nauru in this regard, including whether to approve a person’s transfer to Australia or to assist with transfer to another country, he is assisted by a committee called the Transitory Persons Committee. He said that ordinarily he makes the decision following discussion with and receipt of a recommendation from that committee, but he is not required to await such a recommendation and he does not do so in every case, such as in emergencies. He said that no OMR had been received in relation to the applicant.

35    Professor Newman said that there is no specialist child mental health facility on Nauru into which the applicant could be admitted for assessment and treatment. Dr Martin also provided some important evidence in relation to the availability of appropriate mental health care on Nauru. He is a general practitioner who worked as a Senior Medical Officer for IHMS on Nauru between November 2016 and August 2017, in which period he said he gained a detailed understanding of the medical facilities available to refugees on Nauru. He said:

From my knowledge of those facilities and processes and the information provided to me about the Applicant it is my professional view that the Applicant could not be appropriately treated on Nauru…

Mental Health Care on Nauru

Mental health care on Nauru is basic and is provided by visiting psychologists (generally from Australia) and there is no permanent child psychologist available in Nauru. I am aware that Dr Vernon Reynolds, a practising child psychiatrist does travel to the island periodically but that he is currently in New Zealand. To the best of my knowledge there is not currently an expert child psychologist available on Nauru to treat the Applicant.

Further, in my opinion Nauru is ill equipped to handle complex mental health cases, particularly child mental health, and does not have the facilities to handle a complex child psychiatric case requiring inpatient treatment. Although both the offshore processing centre on Nauru and the Republic of Nauru Hospital have limited inpatient facilities, these are targeted to adults, have limited resources and would be grossly inadequate to treat a child presenting with the Applicant’s symptoms as they have been described to me or to provide the care set out in Professor Newman’s email.

Given the lack of child psychiatric inpatient facilities, complex child mental health cases require evacuation to Australia (as the nearest centre of medical excellence). I believe that transfer to a child mental health inpatient facility would certainly be the appropriate recommendation for the Applicant.

36    The evidence shows that there is no child psychiatrist permanently stationed on Nauru. Mr Tran, counsel for the respondents, said that the next scheduled visit by a child psychiatrist to Nauru was not until February 2018. He said, however, that a telephone consultation between the applicant and a child psychiatrist, Dr Jillian Spencer, had been scheduled for 23 December 2017 and that, depending upon Dr Spencer’s recommendation, it might be possible to bring forward the scheduled visit of the child psychiatrist to Nauru.

37    Dr Martin also said the OMR process would be inadequate to deal with a deterioration in the applicant’s mental health. He said:

In my role as senior medical officer I gained… a detailed understanding of the process for referral and consideration of patients requiring transfer to an offshore medical facility for treatment.… It is… my professional view that there are not proper processes in place within the offshore detention system, both on Nauru and in Port Moresby, to efficiently escalate [the applicant’s] care or provide an emergency medical evacuation should her condition deteriorate.

…

Medical transfers and evacuations

Because the clinic and hospital on Nauru are not equipped to deal with complex cases, a system has been put in place by the Australian Government for the transfer or, in urgent cases, evacuation of asylum seekers requiring urgent medical treatment. Under this system IHMS staff would make medical recommendations using a “request for medical movement” form. This form would describe the patients’ conditions and give medical deadlines by which to fly the patients out.

From my time working within this system, I have formed the view that the IHMS medical transfer system is inefficient and driven by political and not medical concerns. While on Nauru, evacuation deadlines which either my staff or I recommended were frequently not met and at times appeared to be ignored by the Australian government and patients were often in constant pain as their conditions worsened. Follow-up requests by myself or my staff would also not be met with substantive responses.

Clinical decisions and recommendations which were made by IHMS medical staff were referred to and often questioned by non-medical staff. To the best of my recollection, there were six serious cases where asylum seekers had been waiting for months beyond medically recommended timeframes without treatment during my tenure on Nauru. In one case I am aware of an asylum seeker had been waiting for 12 months for medical transfer when the recommended treatment time was one month.

A further complicating factor on Nauru was that Nauruan bureaucrats also held a lot of power when it came to the health of refugee patients. A powerful Nauruan panel called the “Overseas Medical Referral” (OMR) committee is required to approve all medical transfers in conjunction with [Australian Border Force] officials who organise the transfers. The OMR sat irregularly, was poorly minuted, often cancelled at short notice and often gave contradictory opinions, depending on which doctor was chairing it. If a doctor appointed by the Government of Nauru was dismissed, which was a frequent occurrence, then often the decisions made by that doctor were revoked. I regularly informed the Director of Medical Services, Dr Richard Leona, of the outstanding cases we had and copied in my IHMS superiors. These patients were routinely ignored by the OMR committee with no reasons given.

Based on my experiences working within this system, I do not believe that the overseas medical referral system could act promptly to secure the medical transfer of the Applicant if her condition were to deteriorate or she were to require acute medical care.

The attempts to secure the applicant’s transfer to Australia for treatment

38    It is unnecessary to detail the numerous attempts the applicant’s representatives made to persuade the Department, IHMS and AGS that it was appropriate to urgently transfer the applicant from Nauru to a place where she could receive appropriate mental health care treatment. It suffices to note that in a series of emails from 14 December 2017 the Asylum Seeker Resource Centre and Mr Newhouse referred to the applicant’s suicide attempt and her active suicidal ideation, said that she presents as a very high risk of suicide, provided a copy of Professor Newman’s first report, and said that in Dr Martin’s opinion Nauru was not equipped to handle complex child mental health cases such as the applicant’s. They requested that the applicant be urgently moved from to Nauru to Australia where she could receive appropriate mental health care.

39    The respondents rejected these requests. On 20 December 2017 the applicant’s representatives filed this proceeding.

THE INTERLOCUTORY APPLICATION

40    The principal interlocutory order the applicant sought is an order that the respondents immediately transfer her to a specialist child mental health facility where she can receive a comprehensive tertiary level child psychiatric assessment in accordance with the recommendations of Professor Newman.

THE RELEVANT PRINCIPLES

41    The principles to be applied in determining whether to grant an interlocutory injunction are well settled. The applicant must identify the legal or equitable rights which it seeks to have determined at the trial and in respect of which final relief is sought. When such rights have been identified, the applicant must establish that:

(a)    first, 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; and

(b)    second, that the balance of convenience favours the granting of the injunction. That is, whether the inconvenience or injury which the applicant will be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the respondents would suffer if an injunction were granted. It includes consideration of whether damages or other remedies would be an adequate remedy.

The two questions are not independent. The more that the balance of convenience supports a respondent the stronger will be the prima facie case that the applicant may need to establish to support an interlocutory injunction. Conversely, where the balance of convenience strongly favours the applicant, then the strength of the prima facie case required to support the grant of an injunction diminishes: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 (O’Neill) at [19] (Gleeson CJ and Crennan J) and [65]-[72] (Gummow and Hayne JJ); Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [52]-[74] (Dowsett, Foster and Yates JJ).

42    In cases in which the grant or refusal of an interlocutory injunction will 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: O’Neill at [72]; Australian Competition and Consumer Commission v Allphones Retail Pty Ltd (No 2) (2009) 253 ALR 324; [2009] FCA 17 at [27]-[28] (Foster J).

APPLICATION OF PRINCIPLES TO THE FACTS

The legal rights which the applicant seeks to have determined

43    The originating application alleges that the Commonwealth, in the exercise of its powers under s 198AHA of the Act and/or s 61 of the Constitution, owes a duty of care to the applicant. It alleges that the duty of care arises because the Commonwealth:

(a)    transferred the applicant from Australia to Nauru pursuant to ss 198AD and 198AHA of the Act;

(b)    maintains a significant involvement in the day to day operation of regional processing activities in Nauru in respect of the applicant; and

(c)    maintains a significant involvement in the day-to-day healthcare, education, housing and welfare of the applicant.

44    The application alleges that the Commonwealth is in breach of its duty of care because it has failed to provide her with access to safe and appropriate medical facilities and treatment. It further alleges that as a result of the breach of duty the applicant is suffering significant harm, is at immediate risk and is exposed to the risk of further serious harm including significant psychiatric and psychological harm or death. The application essentially alleges a continuing tort.

45    As the applicant submitted, s 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status, and the exercise of the powers conferred by that section must also therefore serve that purpose: Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42; [2016] HCA 1 at [46] (French CJ, Kiefel and Nettle JJ). The applicant contended that the powers conferred by s 198AHA to facilitate regional processing functions extend to providing assistance to UMAs whose refugee status has been recognised and who are awaiting resettlement in the regional processing country: Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17; [2016] FCA 483 (Plaintiff S99/2016) at [247] (Bromberg J).

46    The applicant submitted that the regime erects or facilitates a relationship between the Commonwealth and UMAs: Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 at [146] (Gummow and Hayne JJ). The applicant argued that the Commonwealth is empowered, but not compelled, to provide assistance in relation to the processing of protection claims under the Refugees Convention made by UMAs: Plaintiff S99/2016 at [248]. The applicant submitted that the evidence shows that the Commonwealth has exercised that power and provided assistance to UMAs, including the applicant and her family, who were found by Nauruan authorities to be refugees.

47    The applicant relied upon the existence and nature of the statutory power the respondents exercised and pointed to a number of the “salient features” identified by Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649; [2009] NSWCA 258 (Stavar) at [102]-[103]. The applicant submitted that the factors identified support the existence of a duty of care that the respondents owe to the applicant, the scope of which includes a duty to provide her with appropriate mental health care treatment.

Is there a serious question to be tried?

48    For the purposes of the interlocutory application the respondents accepted that the applicant has raised a prima facie case and it is therefore unnecessary to deal further with this issue. As I have said, I take this as a concession that there is a serious question to be tried that the respondents owe the applicant a duty of care to provide her with a level of medical care which is reasonably designed to meet her mental health care needs, and that in the present circumstances the content of the duty includes an obligation to remove the applicant from Nauru to a place where she can be admitted for appropriate mental health care treatment. It includes that the Court has the power to make such an order on the final determination of this matter.

49    In my view the respondents’ concession was sensible having regard to the evidence, and decisions in analogous applications.

The relationship between the Commonwealth and the applicant

50    The evidence tends to show (or at least gives rise to a serious question in that regard) that:

(a)    the applicant and her family live in refugee accommodation on Nauru paid for by the Commonwealth;

(b)    the accommodation, education and health care for the applicant and her family, and other refugees living on Nauru, are provided by the Commonwealth;

(c)    the applicant’s mother receives a fortnightly payment from the Commonwealth;

(d)    immediately preceding the hearing the applicant and her family were accommodated in an area within the RPC, which was built by contractors and agents for the Commonwealth and the operation of which is funded by the Commonwealth; and

(e)    the Commonwealth funds the provision of case management and other services to refugees on Nauru by HOST.

51    The evidence arguably raises a serious question to be tried as to whether the Commonwealth has exercised its powers under s 198AHA through the MOU with Nauru and other arrangements, such that there exists a relationship between the Commonwealth and UMAs which supports the existence of a duty of care of the type the applicant claimed. The salient features to which the applicant pointed are:

(a)    the foreseeability of harm – the applicant is a young child at risk of suicide;

(b)    the nature of the harm alleged – the medical evidence is that the suicide risk is extreme;

(c)    the degree and nature of control able to be exercised by the respondents to avoid harm – under the MOU the respondents have a high degree of control to prevent harm to her;

(d)    the degree of vulnerability of the applicant to harm from the respondent’s conduct, including the capacity and reasonable expectation of the applicant to take steps to protect herself – the applicant is a vulnerable young child unable to protect herself;

(e)    the degree of the applicant’s reliance upon the respondents – the applicant is reliant on the respondents for a place to live, for appropriate mental health care treatment, and indeed for all the necessities of her life;

(f)    any assumption of responsibility by the respondents – the applicant said that the Department has assumed responsibility for her mental health care treatment through its MOU with Nauru and by transferring her and her family into the RAA to assist her mental health care treatment.

52    Also arguably relevant in the salient features analysis is the respondents’ knowledge (either actual or constructive) that the conduct will cause harm to the plaintiff. It can be argued that the respondents are on notice that there is a real risk that unless the applicant is removed from Nauru and placed into an appropriate specialist child mental health care facility she will commit suicide and/or her mental health will further deteriorate.

The medical evidence as to the inadequacy of the mental health care treatment provided and to be provided on Nauru

53    Mr Woodford-Smith provided the respondents’ evidence as to the adequacy of the treatment provided on Nauru to date and the system for escalating the applicant’s treatment if her condition deteriorates (through the OMR process). Given the urgency of the application I have no difficulty with the hearsay nature of that evidence, nor with accepting statements from the bar table by counsel for the Commonwealth regarding the proposed treatment.

54    However, Mr Woodford-Smith’s evidence that IHMS staff consider that the applicant can be adequately treated as an outpatient in the Nauru community, his evidence that IHMS staff would refer her case into the OMR process if her mental health deteriorates, and his evidence as to the operation of the OMR process, is all at a high level of generality.

55    Mr Woodford-Smith’s evidence that the applicant’s mental health care needs have been adequately met by IHMS to date is fundamentally based in a view that her psychiatric problems are not as serious as Professor Newman has said. If it were necessary to decide I would disagree.

56    I prefer Professor Newman’s evidence, considered in light of the clinical notes, to that of Mr Woodford-Smith. The evidence indicates that the applicant’s psychiatric condition is very serious, that she poses an extreme suicide risk, and that her condition is such that she should be immediately admitted into a specialist child mental health facility for assessment and treatment.

57    Mr Woodford-Smith did not contradict the evidence of Professor Newman and Dr Martin that there is no specialist child mental health facility on Nauru into which the applicant could be admitted. Nor did the respondents submit that Professor Newman’s and Dr Martin’s evidence that there was no such facility on Nauru was incorrect.

58    It is uncontroversial that there is no child psychiatrist stationed on Nauru. Given the severity of the applicant’s psychiatric condition, I am disinclined to accept that a child psychiatrist visiting every few months (or even every month) would provide sufficiently regular and ongoing treatment to appropriately treat the applicant and prevent her suicide or self-harm.

59    Nor was Mr Woodford-Smith’s evidence regarding the OMR process of much assistance to the respondents. Professor Newman’s evidence points to the conclusion that there is already an extreme risk that the applicant will commit suicide and an immediate need to move her from Nauru for admission into a specialist tertiary level child psychiatric facility. Yet the evidence does not show that IHMS has given any consideration to commencing the OMR process. Further Dr Martin’s evidence causes me to doubt the efficacy of the OMR process, if it is ever commenced.

Analogous decisions

60    The appropriateness of the respondents’ concession that a prima facie case exists is also apparent from a review of decisions in analogous applications.

61    In Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 207 ALR 83; [2004] FCAFC 93 the Full Court dealt with an appeal from the grant of an interlocutory injunction which required the Secretary of the relevant Department to transfer a detainee in immigration detention in South Australia out of that detention centre because of various mental health difficulties he suffered. The primary judge’s decision was based on psychologists’ evidence that the first respondent’s serious psychiatric problems were highly reactive to that particular detention environment. Lander J, with whom Selway and Finn JJ agreed, noted the Secretary’s concession that he owed a duty of care to detainees to take reasonable care with regard to their safety whilst they remained in detention (at [33]-[36]). Their Honours were satisfied that there was a serious question to be tried as to whether the form of detention provided to the first respondent involved a breach of the duty to take reasonable care of his safety. The Full Court agreed that injunctive relief was appropriate but varied the form of the orders made by the primary judge (at [127]-[128], [132]-[136] and [138]-[143]).

62    In S v Secretary, Department of Immigration & Multicultural & Indigenous Affairs (2005) 216 ALR 252; [2005] FCA 549, Finn J considered an injunction application by two detainees in immigration detention in Australia. The applicants suffered from major depressive disorders and they sought injunctions to compel the Commonwealth to have them removed from detention and assessed for admission into an appropriate mental health facility. Finn J was satisfied that the Commonwealth owed a duty of care to avoid a likelihood of harm to persons in immigration detention who are known to suffer from mental illness. His Honour said (at [209]) that the relationship between the Commonwealth and such persons was closely analogous to two classes of relationship which attract a non-delegable duty of care: those of hospital/patient and gaoler/prisoner. His Honour was prepared to grant injunctive relief against the Commonwealth to prevent the applicants being exposed to the likelihood of harm to their mental health, but as the applicants had already been transferred to a mental health facility an injunction was unnecessary (at [263]).

63    In MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659; [2012] FCA 694, Gordon J considered an application for an interlocutory injunction by a detainee in an immigration detention centre in Victoria, seeking transfer from the detention centre and into adequate accommodation and treatment to meet his mental health needs. Her Honour found (at [39]) that a prima facie case existed that, as a result of his immigration detention, the applicant was subject to a continuing tort in that the Commonwealth detained him at a place or in a way which did not provide medical care reasonably designed to meet or alleviate his mental health care needs, which was causing him injury. Her Honour said (at [55]) that she was not persuaded that the Court lacked power to restrain a continuing tort of the nature claimed.

64    In Plaintiff S99/2016 Bromberg J considered an injunction application brought by a refugee living on Nauru. Like the applicant in the present case, the applicant arrived at Christmas Island by boat, she was therefore a UMA and was taken by officers of the Commonwealth to Nauru and detained in the RPC. Later she was recognised by Nauruan authorities as a refugee and she was released on a temporary visa to live in the community while she awaited resettlement. The first and second respondents in that case are the same as in the present case.

65    The applicant had been raped on Nauru while she was unconscious and suffering a seizure, probably caused by an epileptic fit, and had fallen pregnant as a result. She wished to undergo an abortion but abortions are illegal in Nauru. She requested the Minister to bring her to Australia for an abortion but he refused to do so. He instead moved her to Papua New Guinea (PNG) where he was prepared to assist her to receive an abortion. The applicant refused to undergo an abortion in PNG on the basis that it was not safe because, particularly having regard to her epilepsy, her poor mental health and physical and psychological complications caused by cultural practices to which she had been subjected as a young girl, PNG lacked appropriate medical resources. She also contended that abortion was illegal in PNG and she would be exposed to criminal penalty.

66    The applicant alleged that the Minister owed her a duty of care to procure a safe and lawful abortion for her, and sought an injunction that she be moved to Australia where she could have such an abortion. Bromberg J heard and decided the application on a final (as distinct from interlocutory) basis. His Honour concluded (at [243]) that the Minister owed a duty of care to the applicant to exercise reasonable care in the discharge of the responsibility that he assumed to procure a safe and lawful abortion, and issued an injunction to restrain the Minister from failing to discharge his duty of care in that regard.

67    Many of the considerations which underpin the decision in Plaintiff S99/2016 arguably apply in the present case. Bromberg J undertook a detailed review of the legal principles relevant to whether the Commonwealth was under a duty to take care of the applicant (at [200]-[242]) and applied those principles to the facts (at [243]-[255]). At [257]-[278] his Honour analysed the facts by reference to the “salient features” identified by Allsop P in Stavar. It is arguable that the facts of the present case reflect many of the facts underpinning the decision in Plaintiff S99/2016.

68    Bromberg J rejected (at [459]) the respondents’ contention that the Court has no power to issue the mandatory injunctions sought because their effect would be to “require the Commonwealth to take actions authorised by s 198B, or s 198AHA, of the Act”, and that “such actions, and the failure or refusal to take such actions, are ‘privative clause decisions’ in the light of s 474(2) and 3(g) and therefore, under s 474(1)(c), are not subject to injunction ‘in any court on any account’.”

Where does the balance of convenience lie?

69    The respondents conceded the existence of a prima facie case but they contended that it is not a strong case, and argued that should weigh in their favour on the balance of convenience. They contended that, while it may be accepted that the applicant’s family have concerns for her mental health, those concerns can be and are being adequately managed at present, and that the Nauruan authorities can take steps to escalate her care if her mental health deteriorates.

70    I disagree. In my view, for the purposes of the present application, the evidence tends to show that the applicant’s psychiatric condition is very serious, she poses an extreme suicide risk, and she should be immediately admitted into a specialist child mental health facility for assessment, containment and treatment. There is no such facility on Nauru. I am disinclined to accept that outpatient treatment coupled with a child psychiatrist visiting every few months (or even every month) will provide the mental health care treatment the applicant needs and adequately protect her in relation to the risk of suicide. I do not consider that the OMR process is adequate or likely to be sufficiently swift to adequately protect against the risk of suicide.

71    I approach the issue of balance of convenience on this basis and it therefore strongly favours making the orders sought. If the interlocutory injunction is granted it can be argued that Commonwealth resources will be wasted. However, if the injunction is not granted there is a serious risk that the applicant will commit suicide or otherwise self-harm, or that she will suffer a serious worsening of her psychiatric condition. The injury or damage the applicant may suffer if an injunction is refused carries far more weight in the balance than the wasted expenditure the Commonwealth may suffer if an injunction is granted. Further, given the extreme suicide risk the applicant presents, the final relief sought may become nugatory if the injunction is not granted.

72    That remains the case even if the applicant’s suicide risk is somewhat lower than Professor Newman says. Accepting that she presents as a suicide risk (which is clear on the evidence) it is appropriate to give more weight in the balance to protecting her in relation to that risk than to concerns about wasted Commonwealth expenditure.

73    The respondents also contended that to require them to take the applicant and her family to Australia, presumably for a temporary purpose pursuant to s 198B of the Act (see Plaintiff M96A/2016 v Commonwealth (2017) 343 ALR 362; [2017] HCA 16 at [12] (Kiefel CJ, Bell, Keane, Nettle, Gordon and Edelman JJ)) would be to tread upon the delineation of responsibilities between Nauru and the Commonwealth. The respondents anticipated seeking leave to file affidavit evidence to show that it is Nauru, not the Commonwealth, which is responsible for the applicant’s care. They submitted that the Court should be cautious where orders may potentially impinge upon the conduct of foreign affairs: see generally R (on the application of Abbasi) v Secretary of State for Foreign and Commonwealth Office [2002] EWCA Civ 1598; Hicks v Ruddock (2007) 156 FCR 574; [2007] FCA 299 (Tamberlin J). I give this contention little weight when the respondents did not put on any such evidence, and they put on no submissions to show how the proposed injunction might impinge upon the conduct of foreign affairs.

Other considerations

74    The respondents also contended that several additional matters told against the grant of the injunction sought:

(a)    the respondents argued that to make an order requiring the applicant and her family to be taken to Australia or to another location would sit uneasily with the provisions of the Nauru Mentally Disordered Persons Act 1963 which makes provision for the assessment, management and care of “mentally disordered persons” in Nauru, including the transfer of such persons to care outside of Nauru. There was, however, no material before the Court as to the provisions of that Act, how it operated, or how the proposed injunction would impinge upon it. This is an issue for the trial;

(b)    the respondents argued that one of the orders sought would sit uneasily with the separation of powers. The revised orders put forward by the applicant no longer sought that order; and

(c)    the respondents consented to an expedited hearing of the case. They argued that, given that the grant of the interlocutory injunction comes close to amounting to final relief, an expedited hearing was a more appropriate course than injunctive relief. There is some force in this contention but the severity of the risk that the applicant will commit suicide means that an expedited trial, even one as early as February 2018, might be too late.

Associate:

Dated:    9 February 2018