FEDERAL COURT OF AUSTRALIA

EUB18 v Minister for Home Affairs [2018] FCA 1432

ORDERS

THE COURT ORDERS THAT:

1.    On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) that publication of any name of the applicant and her country of origin be prohibited under s 37AF of the Federal Court Act.

2.    The respondents ensure that EUB18 is transferred as soon as possible but in any event before 4 pm AEST on Wednesday 19 September 2018 to a location in Australia where the applicant can be treated for her medical and psychological conditions in accordance with the requirements of Dr Bohmer in his reports dated 14 and 15 September 2018 and in accordance with the recommendation of Dr Lloyd in her report dated 16 September 2018 and then in accordance with any further recommendations of those clinicians assigned to the applicant’s care in Australia.

3.    The respondents provide at least 2 clear business days’ written notice to the applicant’s solicitors before taking any steps to remove the applicant from Australia.

4.    The costs of this interlocutory application are reserved.

5.    Liberty to apply at short notice for variation of these orders.

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

REASONS FOR JUDGMENT

(Delivered Ex Tempore and Revised)

MORTIMER J:

1    This is an application seeking, in substance, the urgent evacuation of the applicant from Nauru. The applicant is a female in her mid-20s. Her nationality is suppressed by orders made on this application. She has been found to be a refugee. She has relatively recently been refused resettlement in the United States and, on the evidence, has been told that was because of her nationality. The evidence on this application is that on the day she was given that news, she was raped on her way back to her accommodation in Nauru. The evidence is that the effects of the rape are exacerbated by her devastation at what the rape means for her future as a single woman from that country and from that culture, given that culture’s practices. All this is aside from the effects of the rape in other ways.

2    The urgency of the application is said to be because of reported symptoms by the applicant, who has, on the evidence, consumed a large amount of bleach in a suicide attempt on Wednesday, 12 September 2018. On the evidence, this was not her first suicide attempt. Particular urgency arises from her more recently reported symptoms after swallowing that bleach and the expert evidence about what those symptoms might mean. The respondents were notified only yesterday of this application and appeared by their legal representatives, who had some factual instructions but, understandably, no sworn evidence. Those instructions presented, it is fair to say, at least on one view, a situation of less urgency.

3    Given its position and the short time it has had to consider this, the respondents sought an adjournment for 24 hours so that they could determine whether to oppose the application or whether to agree to bring the applicant to Australia. The applicant opposed the adjournment application and pressed for the interlocutory orders. Therefore, the question for determination by the Court is whether the respondents’ adjournment application should be granted or whether the interlocutory orders sought by the applicant should be made.

4    The applicant read and relied on three affidavits: of Sandra Jane Bartlett affirmed 16 September 2018, Noosheen Mogadam affirmed 16 September 2018, and Josephine Rose Langbien sworn 16 September 2018. Attached to Ms Langbien’s affidavit and duplicated in the other evidence are several expert reports. There are two reports from Dr Robert Bohmer, a general surgeon with subspecialty training in upper gastrointestinal surgery and one report from Dr Bonita Lloyd, a psychiatrist. Both are, on the evidence, plainly experienced in their fields.

5    Dr Lloyd conducted a psychiatric review of the applicant via teleconference with an interpreter on 15 September 2018. Her report is thorough and detailed. It describes the recent suicide attempt and an interaction with an IHMS psychiatrist in the last couple of days, to which I return.

6    Dr Lloyd’s assessment of the applicant is that she clearly meets the DSM-5 criteria for major depressive disorder with anxious distress and possible melancholic features, that she also clearly meets DSM-5 criteria for post-traumatic stress disorder as characterised by exposure to sexual violence with re-experiencing phenomena, including nightmares, flashbacks, emotional distress and panic, avoidance of trauma-related stimuli, such as avoiding turning the lights off, negative affect and diminished interest in activities and trauma-related arousal, including difficulty concentrating and sleeping. Dr Lloyd expresses some uncertainty about the nature of the applicant’s psychotic symptoms but concludes that she is clearly severely unwell.

7    Dr Lloyd’s opinion is that the applicant requires containment in a safe environment in order to appropriately manage her significant risk of harm to herself, to review the clinical picture for diagnostic clarification and to treat her constellation of psychiatric illnesses. Her opinion is that a woman with the applicant’s constellation of symptoms and degree of risk to self would be prioritised for admission to a tertiary treatment centre in Australia and that the possible consequences if the applicant does not receive the required evaluation and treatment in a timely fashion include death by suicide or other self-harm, further worsening of her physical and mental health, medical sequelae of malnutrition and a range of other physical complications outlined by Dr Lloyd in her report. Dr Lloyd’s opinion is that an inpatient psychiatric admission for the applicant could be arranged immediately in most major centres in Australia.

8    Dr Bohmer’s evidence is contained in two reports. In his first report, he relates the account given by the applicant of having drunk nearly a litre of household bleach and the fact that she was treated in hospital and discharged. That fact appears to be consistent with the instructions given to the respondents’ legal representatives. Dr Bohmer states that the applicant appears to have been given anti-acids and anti-nausea tablets, but reported that she was still vomiting and coughing up white sputum and that she has a pain from her throat to her stomach. Dr Bohmer’s opinion in his first report was that without the substance being tested, he could not be sure that the applicant drank bleach but, assuming that she had, it is a caustic material that poses a risk of damaging the oesophagus and stomach and may also cause laryngeal oedema and airway compromise.

9    Dr Bohmer in his first report describes the treatment that the applicant would receive on admission to a hospital in Australia. It is unclear on the instructions provided by the respondents’ legal representatives whether this kind of assessment occurred during the applicant’s brief stay overnight at the Republic of Nauru Hospital.

10    Dr Bohmer’s second report was given in response to a request from the applicant’s legal representatives. On the evidence, the second report was sought after further instructions were given by the applicant that she continued to vomit dark and white fluid, was coughing violently, had asthma and shortness of breath, a rising temperature and ongoing pain in her stomach. Dr Bohmer was also asked to assume that the applicant had reported symptoms of feeling itchy since ingesting the bleach, had continued to experience these symptoms and had not experienced similar symptoms prior to ingesting bleach.

11    On the basis of those instructions, Dr Bohmer’s second report states that he would be most concerned for the applicant’s medical condition and the risk of rapid deterioration. He states that:

Vomiting following a caustic injury would be a concern for caustic burn of the oesophagus or stomach. Shortness of breath would be concerning for aspiration, chemical burns of the airways or exacerbation of asthma. A rising temperature would be a concern for some inflammatory response or infection. Pain in the stomach would raise the possibility of a perforation; this would be the most significant complication of caustic ingestion.

12    He continues:

The possible consequences of vomiting are dehydration and renal failure resulting in death. …Pain in the stomach following caustic ingestion concerns me that she may have a perforation, if this occurs she will develop peritonitis and if this occurs and she does not have urgent surgical intervention, then she may die.

13    The rest of Dr Bohmer’s second report describes the kind of treatment the applicant would need in these circumstances, and I am satisfied that treatment is of a sophisticated nature, possibly in a high dependency unit or an intensive care unit.

14    The respondents’ legal representatives conveyed instructions to the Court which I accept were obtained with their best endeavours, faithfully to place before the Court the information then available to the respondents about the applicant’s circumstances. As I noted earlier, those instructions differed somewhat from the picture presented by the applicant’s evidence.

15    The respondents’ legal representatives informed the Court that, first, IHMS was not aware of the applicant’s suicide attempt on 12 September 2018, but Australian Border Force had advised that the Republic of Nauru Hospital told Australian Border Force that the applicant presented at the Republic of Nauru Hospital by herself and said she had swallowed bleach. She was admitted and discharged the next day, the instructions being that she did not at that stage show any symptoms.

16    Secondly, the respondents informed the Court that, yesterday, the applicant attended an event about which little information was available other than it was conducted by an organisation with the acronym HOST, and that the applicant was engaging, was coherent and was behaving “normally”. Thirdly, the respondents informed the Court that the applicant had an appointment with Dr Mohanraj, the IHMS psychiatrist, who assessed her yesterday and did not report anything particularly untoward. The respondents’ legal representatives handed up to the Court an email chain from one Darren Green, identified as the Mental Health Team Leader and a Registered Mental Health Nurse of IHMS in Nauru, which confirmed that Dr Mohanraj had seen the applicant yesterday, 15 September 2018. The email stated:

Nil current concerns expressed from the consultation.

17    The email further stated that the applicant denied any thoughts to harm herself, that there would be ongoing daily phone contact with her, and home visits every three days, this on the email apparently being a continuation of an “appropriate treatment plan”.

18    The Court enquired of the respondents’ legal representatives whether it was possible to have an appropriate person from Nauru give evidence this evening so that a better evaluation could be made of the competing submissions about what should occur, and of the apparently competing available information. An adjournment was granted so that instructions could be sought by the respondents – also so that instructions could be sought on what the current situation was in Nauru about air ambulances landing to evacuate people in the applicant’s situation from Nauru.

19    After the adjournment, the respondents’ legal representatives informed the Court that IHMS had agreed to arrange for the applicant to be admitted to RPC1 on Nauru as a voluntary admission so that her immediate wellbeing could be more closely monitored.

20    At this stage of the hearing, it was apparently not possible for anyone from Nauru to give evidence to the Court. The individual who had been identified as a potential witness was one Danvyn Porte, a Nauruan official from the Nauruan Department of Multicultural Affairs. The Court was informed he was the person the Australian Department of Home Affairs relevantly contacted to secure information on Nauru. Mr Porte, the Court was informed, was the person who gave the respondents instructions that the applicant had spent the night at the Republic of Nauru Hospital and was discharged the next day without any symptoms.

21    Mr Porte, the Court was informed, told the respondents’ legal representatives he would not be able to give evidence without seeking permission from the Nauruan Secretary of Multicultural Affairs, Ms Barina Waqa. I infer no such permission was forthcoming in the time during the Court’s hearing. And so no evidence was available. That is not a criticism of the respondents.

22    The respondents’ legal representatives also informed the Court that there were “ongoing issues” with the Nauruan Government granting permission for air ambulances sent from Australia to land without the applicable domestic approval process being undertaken for any such medical evacuations from Nauru. That domestic approval process has been referred to in previous decisions of this Court, and in particular, my decision in ELF18 v Minister for Home Affairs [2018] FCA 1368 at [66].

23    Having heard the respondents’ position, the applicant’s legal representatives sought and obtained instructions directly from the applicant by telephone. The Court was informed by counsel for the applicant that the applicant had told her legal representatives in that telephone conversation that she was vomiting, that she was sitting in her own vomit, that she needed help, and that she would consent to go to RPC1.

24    I have set out the general context for these kinds of applications in several recent decisions, most recently in the decision of ELF18, to which I have referred. The respondents’ alleged breaches of their alleged duty of care as framed in this case, and in others, clearly, in my opinion, gives rise to a serious question to be tried given the evidence on this application about what has happened to the applicant. I propose to adopt the approach I have taken in those other cases, to the extent they are relevant to this application.

25    The matter is, as counsel for the applicant submitted, focused on the balance of convenience, and in particular, on whether the matter should be adjourned for 24 hours. That does not sound like a long period of time but, on the evidence, in the circumstances that are facing the applicant, it is a critical amount of time in my opinion.

26    There are some practical questions about the availability of an air ambulance – and I say a little bit more about those in a moment. The position about which the Court was informed, in terms of availability of commercial flights out of Nauru, was that the first commercial flight out of Nauru, which is showing available seats, at least on an internet search, is a flight in the afternoon of Wednesday, 19 September 2018. As I observed during argument, it has proven to be the case in previous applications that, where similar circumstances have arisen, the fact that there are seats showing on commercial flights out of Nauru on the internet has not meant that the respondents have been able to secure seats for other individuals on such flights.

27    The inconsistency in that position remains unexplained on the evidence. Nevertheless, the possibility that there will be no seats on that flight does need, at least, to be adverted to.

28    On the applicant’s evidence, and in particular the second report of Dr Bohmer, there is an immediate risk to the applicant of serious complications from having consumed a very large amount of bleach on 12 September 2018, including, on Dr Bohmer’s own evidence, a risk of death.

29    The treatment necessary for this is, on the evidence, unlikely to be fully available in Nauru, especially when Dr Lloyd’s opinion is taken into account, and the applicant’s psychiatric issues are fed into the complexities of her medical and psychiatric care, including her documented lack of trust in the healthcare she has received to this point on Nauru. Whether accurate or not, in terms of the applicant’s perspective about its inadequacy, it is – at least on the evidence before this Court – undoubtedly interfering with her willingness to access healthcare on Nauru.

30    To this should be added the most recent information conveyed by counsel for the applicant to the Court about the applicant, at least during the currency of the hearing: vomiting and asking for help.

31    Those matters, in my opinion, cannot be outweighed tonight by the instructions given on behalf of the respondents to the Court.

32    Rather, in the face of the evidence on the interlocutory application, the Court cannot sit by, even for 24 hours, and hope that the risks to the applicant’s physical and mental health will not eventuate. I am satisfied there is a real risk to the applicant’s life. One hopes this will not materialise.

33    But whether or not her condition worsens, she should be evacuated as soon as possible to a location within Australia where all her medical and psychiatric conditions can be rapidly and comprehensively addressed, and to a location where her trust in the treatment she receives is not, from her own perspective, impugned by her other experiences.

34    The Court accepts that the respondents’ legal representatives have been doing their best to secure instructions and have not been able to do so. If the evidence were not as alarming as I find it to be, the Court may have been prepared to grant the adjournment. However, on careful reflection, and on further consideration of that evidence, and even though I accept that the applicant will be taken to RPC1 as soon as possible, in my opinion the evidence supports the orders sought by the applicant being made tonight.

35    On the evidence – or at least on the instructions conveyed to the Court by the respondents’ legal representatives – the position of the government of Nauru remains one that is capable of interfering with the respondents being able to carry out the orders of this Court. That, however, is a matter for the government of Nauru and, if at all, for a political resolution as between it and the Commonwealth of Australia.

36    The Commonwealth has created this situation by establishing an arrangement of this kind for regional processing with another sovereign state. Having elected to do that, there inevitably may be risks about the decision-making of that sovereign state from time to time. Those arrangements, at least on an urgent application such as this, cannot and should not stand in the way of orders being made to preserve the life and wellbeing of an individual such as the applicant, as much as is possible on the Court being persuaded that the balance of convenience favours that occurring.

37    Accordingly, orders will be made tonight, and the Court’s expectation is that the applicant will be evacuated as soon as possible by whatever means can achieve her evacuation.

Associate:

Dated:    18 September 2018