FEDERAL COURT OF AUSTRALIA
Table of Corrections
The year in the file number on the cover and order pages has been corrected
COMMONWEALTH OF AUSTRALIA
SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS
DATE OF ORDER:
Upon the Applicant by her counsel giving the usual undertaking as to damages:
THE COURT ORDERS THAT:
1. As soon as reasonably practicable, the First Respondent to cause to transfer the Applicant and her son, AYX18, for assessment and admission of AYX18 into a specialist in-patient child and adolescent psychiatrist unit in accordance with the recommendations of Dr Vernon Reynolds in his report of 11 February 2018, or for such other treatment as agreed between the parties.
2. Liberty to restore on short notice.
3. Costs to be costs in the cause.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
1 This is an application for an urgent interlocutory mandatory injunction which was commenced last Thursday, 1 March 2018. The Applicant is the mother of a 10 year old boy. The mother brings the claim as the litigation representative of her son under Division 9.6 of the Federal Court Rules 2011 (Cth) (‘FCR’). This is necessary since he is a minor and, therefore, a person under a legal incapacity within the meaning of FCR r 9.61.
2 The application seeks orders that, in substance, would require the Minister to bring the mother and the son immediately from Nauru, where they currently reside, to Australia so that the son may receive specialist psychiatric care to mitigate the serious risk of self-harm and suicide.
3 In general, an interlocutory injunction in advance of the final determination of a proceeding requires a two-step analysis. First, one asks whether the Applicant has shown a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial; secondly, whether the inconvenience or injury which the Applicant is likely to suffer if the injunction is refused outweighs or is outweighed by the injury which the First Respondent would suffer if the injunction were granted.
4 This was established by the High Court in Beecham Group Ltd v Bristol Laboratories (1968) 118 CLR 618 at 622-623. The reference in that decision to there being a ‘probability’ that at trial the plaintiff will succeed was explained by Gummow and Hayne JJ in ABC v O’Neill (2006) 227 CLR 57 at 81-82  as requiring only the satisfaction of the standard I have set out above, viz, that there is a sufficient likelihood of success in the circumstances to grant relief. With this view, Gleeson CJ and Crennan J expressly agreed at 68 .
5 The application of that general approach is subject to particular considerations in certain categories of case. One is where, as here, a mandatory injunction is sought. In such cases, one needs to be astute to the possible presence of some additional risks of injustice not ordinarily to be seen in the case of most interlocutory injunctions. These include the fact that mandatory injunctions often have the capacity to go beyond the apparent preservation of the status quo by requiring a party to take some positive step; the fact that the taking of such positive steps by the enjoined party usually requires more expenditure than obedience to an ordinary negative injunction does; the higher the risk of loss, therefore, to the defendant if the injunction turns out not to have been one that ought to have been granted; and the concomitant risk that the grant of such relief often determines the whole case so that no final trial ever occurs: Films Rover International Ltd v Cannon Film Sales Ltd  3 All ER 772 at 780-781 per Hoffmann J; Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 503 per Gummow J.
2. Sufficient Likelihood of Success
6 On 23 July 2013, the son and the mother arrived from Iran on board a boat somewhere in Australian waters. They were taken to Christmas Island. As such both were unauthorised maritime arrivals within the meaning of s 5AA of the Migration Act 1958 (Cth) (‘the Act’), and were unable to apply for a protection visa under the Act by the bar on such applications imposed by s 46A (unless the Minister decided that the bar should be lifted). However, they could also, and did, come under the regime of offshore processing created by Subdivision B of Division 8 of Part 1 of the Act. By s 198AB(1) the Minister could designate a country as a regional processing country. The circumstances in which he could do so concerned only the national interest (subs (2)) although he was required to take into account by subs (3) the extent to which the proposed regional processing country had given the Commonwealth assurances, broadly speaking, that it would honour the Refugees Convention as amended by the Refugees Protocol (as defined in s 5 of the Act).
7 Where the Minister had declared the existence of at least two regional processing countries, s 193AD of the Act authorised an ‘officer’ to remove an un-authorised maritime arrival from Australia to the regional processing country.
8 On 24 August 2013 the mother and son were transferred from Christmas Island to Nauru under s 198. Nauru is a regional processing country. On 23 June 2014 Nauru granted both temporary settlement visas to live in Nauru. They are not subject to travel restrictions in Nauru and may travel where they wish. Where they wish to travel in Nauru is circumscribed by the fact that Nauru is only 21 square kilometres in area. For comparison, the city of Sydney local government area which compromises the CBD and its near environs is 25 square kilometres.
9 After the grant to them of visas, the mother and son (and also the father who was then with them) moved to a dwelling in the Nauruan community. This was provided by the Australian government under a memorandum of understanding between Nauru and Australia. This housing is located at a demountable camp called Camp Ijum which, I was informed, is monitored and secured by Australia. The mother collects $310 every fortnight from the Australian government which she collects through the Bendigo Bank.
10 Under the memorandum of understanding the Commonwealth has also procured health services for the persons who have passed from Australia to Nauru under the Act. This is done by an entity called International Health and Medical Services (IHMS) at the Republic of Nauru Hospital.
11 In addition, within the regional processing facility on Nauru there is another health clinic, an area known as the Managed Accommodation Area, and the Supported Accommodation Area. All three of these are designated as mental health facilities under Nauru’s Mentally Disordered Persons Act 1963. I return to the significance of these matters shortly.
12 Returning then to the position of the boy, the first important event is the suffering by his father of a brain injury following a bicycle accident. The injury was serious and he was removed to Australia for specialist treatment. By whom is not clear. He remains in Brisbane Immigration Transit Accommodation which is a Commonwealth facility. After the boy and the mother were assessed as refugees by the Nauruan government they were then settled at Camp Ijum.
13 Beginning in late December 2013, the boy began to suffer night terrors and from early 2014 his mental health began to deteriorate. He became aggressive. By October 2014 he had a 2 week episode of suicidal ideation together with other threats of self-harm. These related apparently to things he had seen.
14 I will not set out the whole history of his mental decline but things got worse not better. In addition to these mental health problems the boy also has an undescended testicle which is causing him pain. Although the hospital at Nauru is said to be able to fix that problem two of its patients died as a result of the actions of the anaesthetist on the island who was then arrested. The advice of IHMS is that the hospital is not recommended. I mention this to reject the Minister’s submission that that at least the undescended testicle could be treated in Nauru. I also reject the Minister’s submission that the mothers’ refusal to permit the boy to be operated upon in Nauru might be seen as part of the problem.
15 On 19 July 2017 an IHMS doctor, Dr Martin, recommended that the boy be transferred to Australia for surgery under a program administered by Australia and Nauru. This recommendation was rejected on 15 December 2017.
16 Thereafter the boy’s mental health has gone downhill. Further, on 9 January 2018 he attempted suicide using paracetamol and antibiotics and was taken to emergency, unconscious. Whilst in hospital, on 11 January 2018, he attempted to strangle himself with a curtain. He remained in hospital for 6 days. On 28 January 2018 he grabbed a paring knife in a highly agitated state which had to be wrestled from him.
17 Following his suicide attempt he was examined by various doctors. These included two psychiatrists, Dr Gordon and Dr Reynolds. Dr Reynolds is the IHMS child psychiatrist. One paragraph of his report of 1 February 2018 will suffice along with two of his recommendations:
‘[Name of child] requires very close supervision, care and containment at present to mitigate the serious self harm and suicide risk concerns. He also requires further specialist child psychiatry assessment, monitoring and treatment in an environment that is safe and secure, attended by staff that have the specialist skills and resources to assist children in crisis who have underlying serious and complex mental health needs. He requires his mother and father to be actively involved in his daily care and parenting. Without such care the risks of further impulsive and dangerous acts of self harm and suicidal behaviour are significant and unpredictable. We do not have the ability to provide this kind of support, supervision or specialised case in Nauru and are unable to safely manage the level of risk presented by this boy in this situation. He requires urgent referral, transfer and admission to a specialist inpatient Child and Adolescent Psychiatric Unit that is able to provide this level of care. It is essential that his mother is included in this admission and I believe that the attendance of his father is also essential to his recovery.
1. I will request that IHMS team on Nauru make an urgent referral via the OMR process to a facility where he and his family can receive appropriate care.
2. [Name of child] presents increasingly serious self harm/suicide risk concerns on a background of impulsivity and increasing mental health concerns. He requires containment, assessment, and treatment in a Inpatient Child and Adolescent Psychiatric Unit. As this is not immediately available my immediate recommendations are to move this family to stay in RPC1 RAA unit to provide increased support and observation from IHMS and CSI staff. This also provides a degree of containment in a gated environment that may help to mitigate some of the risk concerns. I hope this will allow more frequent IHMS staff contact and access to support staff such as CSI youth workers, school liaison staff who maybe able to engage [name of child] in diversional positive activities while supporting hope.
18 Dr Gordon in his report of 20 January 2018 said, inter alia:
● ‘[AYX18] is suffering from a chronic, major depressive disorder’;
● ‘[AYX18] has been depressed most markedly over the last 18 months. Most recently, he has been in severe physical groin pain, adding to his depression and associated with increased depression with suicidal thoughts and behaviours over the last month’;
● ‘The treatments provided to [AYX18] on Nauru have not improved his condition at all. … His condition is in fact deteriorating’;
● ‘[AYX18]’s depressive symptoms are severe and he is at significant serious risk of future suicide attempts. It is very unusual for a preadolescent child to display this level of suicidal behaviours, except in the presence of significant depression or trauma’; and
● ‘[AYX18] is deteriorating significantly with the current care provided on Nauru by IHMS and the local hospital I strongly recommend that [AYX18] and his mother are taken to the mainland for reunification with his father and surgical and psychiatric treatment by clinicians specializing in child psychiatry. Should these recommendations not be followed, then I am very concerned about the developmental risks to [AYX18] in developing a more chronic severe mental health problem which will be very difficult to treat, his current and real risk of further suicide attempts and complete suicide, as well as the risk of his mother attempting or completing suicide’.
19 To round out the picture one needs also the evidence of Dr Martin to whom reference has already been made. He works for IHMS and of conditions in Nauru he said:
‘17. Mental health care on Nauru is basic and is provided by visiting psychologists (generally from Australia) and there is no permanent child psychologist or psychiatrist available in Nauru. I am aware that Dr Vernon Reynolds a practising child psychiatrist does travel to the island periodically. To the best of my knowledge there is not currently an expert child psychologist or psychiatrist available on Nauru to treat the Applicant.
18. 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 Dr Reynolds’ report.
19. Given the lack of child psychiatric 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.’
20 On Sunday 4 March 2018 IHMS dispatched a ‘child development’ team to Nauru. Of this team Dr Martin said:
‘I have been informed through the affidavit of Ms Holben dated 2 March 2018 that an IHMS Child Development team is due to arrive on Nauru on 4 March 2018; comprising of Clinical Lead, Occupational Therapist, Speech and Language Pathologist, Clinical Social Worker and Psychologist. I am aware that such teams occasionally travel to Nauru to assess patients and develop treatment plans. In my view this does not provide a lasting form of treatment for patients, particularly when ongoing inpatient psychiatric treatment is required, as Dr Reynolds has recommended for the Applicant. After these brief sessions there is no way of continuing any form of ongoing therapy recommended.’
21 I also record the evidence of Dr Turnbull that he doubted additional psychiatric therapy would add much value. Dr Turnbull’s evidence is not consistent with that of Dr Reynolds, Dr Gordon or Dr Martin. I note that on 13 February 2018 the mother and son were moved back to the regional processing centre into a respite area. It is air-conditioned and more comfortable. Finally, I should also observe that Dr Reynolds has left Nauru and for the foreseeable future it has no child psychiatrist.
22 I accept that the Applicant has shown a sufficiently arguable case in the circumstances that:
(a) he is suffering from serious mental illness which poses a significant present risk of suicide;
(b) that condition cannot be adequately treated or, since Dr Reynold’s departure, really treated at all, on Nauru; and
(c) treatment can be provided in Australia.
23 The Minister resisted these propositions but the evidence was very clear.
24 That is not the end of the matter, however. The Applicant put her case essentially upon the theoretical underpinning revealed by Bromberg J in S99/2016 v Minister for Immigration and Border Protection  FCA 483. That decision establishes two propositions:
(a) on the facts, the Minister owed a duty of care to assist the Applicant in having an abortion in Australia and to bring her to Australia for that purpose; and
(b) that duty could be enforced by injunction.
25 Bromberg J found the duty of care to exist because of the extent to which the plaintiff was dependent upon the Commonwealth for her care. At - he said:
‘250 One important aspect of the assistance provided by the Commonwealth pursuant to s 198AHA is the contribution made by the Commonwealth to the conditions of existence of UMAs on Nauru. One of the persons in that class is the applicant. I have described at - the Commonwealth’s involvement in the applicant’s detention on Nauru. It is not necessary to determine whether a duty of care was owed by the Commonwealth to the applicant while she was detained on Nauru and prior to her status as a refugee being recognised. It is sufficient to observe, as I do, that the facts show that the applicant was dependent upon the assistance provided by the Commonwealth to sustain her very existence. In that respect, the Commonwealth provided or was directly responsible for the provision to her of food, water, housing, security and medical services to maintain her health and wellbeing.
251 The facts at – also demonstrate that the sustenance provided by the Commonwealth to the applicant continued after the applicant ceased to be detained on Nauru. The “settlement services” extended beyond basic necessities to the education and welfare services provided by Connect.
252 The facts are clear. The applicant had no means of survival independent of the services provided by the Commonwealth through its Service Providers. She was dependent upon the Commonwealth for her very existence. The same may be said of each of the persons in the class. Again, it is not necessary that I consider whether a general duty of care was owed by the Commonwealth to the applicant to maintain her basic needs whilst a refugee on Nauru. However, the applicant’s dependence upon the Commonwealth for her very existence provides the contextual framework in which the specific duty of care claimed should be properly considered.
253 I turn next to the most-immediate facts. Having been raped and fallen pregnant, the applicant sought the assistance of the Commonwealth through its medical services provider, IHMS, to obtain an abortion. The facts demonstrate that the Commonwealth:
• procured medical professionals to assess the applicant’s physical and psychological condition and determine what treatment was required including whether the applicant ought to undergo a termination of her pregnancy and for that purpose be transferred to another country;
• through its officials, including Dr Brayley and Mr Nockels, gave consideration to the medical needs of the applicant and whether she should undergo a termination of her pregnancy and for that purpose be transferred to another country;
• decided to facilitate the transfer from Nauru to Papua New Guinea of the applicant for the purpose of the termination of her pregnancy;
• procured the medical professionals and facilities of PIH to perform an abortion in order to terminate the applicant’s pregnancy;
• provided medical records of the applicant to PIH for the purpose of the conduct of the abortion; and sought (and received) her consent to PIH providing to the Department of Immigration and Border Protection, amongst others, her “personal medical information”;
• procured travel documents (without the applicant’s involvement) sufficient to permit the applicant to travel to Papua New Guinea;
• procured a visa for the applicant (without her involvement) to enter Papua New Guinea and remain there for the purpose of having an abortion;
• made arrangements for the applicant to travel to Papua New Guinea, including by facilitating her passage through immigration and security and selecting and providing a flight to Papua New Guinea;
• made arrangements which facilitated the applicant’s travel from the airport at Port Moresby to a hotel in Port Moresby;
• procured the applicant’s accommodation in Port Moresby;
• procured security personnel to guard the applicant and provide her food in Port Moresby;
• procured the services of PIH to treat the applicant when she fell ill in Port Moresby;
• paid for all costs of and incidental to the applicant’s travel to, and care and maintenance in, Papua New Guinea.’
26 The Minister submitted that his Honour did not decide the broader question of whether unauthorised maritime arrivals (or, more formally, transitory persons) were owed a duty of care. I accept that but it is beside the point. As in S99/2016 the evidence suggests an arguable case that the boy and his mother are dependent on the Commonwealth either directly or indirectly for their survival and sustenance. Further, there appears to be an arguable case that it is the Minister who is providing the medical care which the boy has been receiving (either directly or indirectly). If that be arguable then it is arguable also that if the Minister wishes to be engaged in the medical treatment of persons such as the boy, it should do so competently.
27 I do not, therefore, regard S99/2016 as being relevantly different. Nor, for completeness did Murphy J in a very similar case to this, FRX17 as Litigation Representative for FRM17 v Minister for Immigration and Border Protection  FCA 63 (‘FRX17’); see also D7 v Minister for Immigration and Border Protection  FCA 1331.
28 In principle, I accept therefore that the Applicant has a sufficiently arguable case.
3. Balance of Convenience
29 I turn then to the balance of convenience. Like Murphy J in FRX17 I regard the risk of the boy’s death as being a most powerful and compelling consideration. Against that the following matters were put by the Minister:
(a) Urgent Final Hearing. It was said that an early final hearing would be preferable. It would certainly be advantageous to have such a hearing if it were possible. However, the most urgent hearing which could be held would be on 12 March 2018 and I do not think, having regard to the psychiatric evidence, that a delay of that extent can be justified.
(b) Delay. It was said that Professor Gordon had flagged difficulties on 16 January 2017 but the application was only made last Friday 3 March 2018. But the evidence shows that the parties have been engaged in an extensive correspondence since 18 January 2018 in an attempt to avoid this hearing. I do not think that the delay has much significance in light of that.
(c) Mandatory injunction. It was submitted that the status quo would not be preserved by any injunction. I accept this and also that considerable, and most likely irrecoverable, expense will be incurred by the Commonwealth if the order is made. Given that a life is at stake, however, I do not regard this as the important factor it would usually be. I do not, however, disregard it altogether.
(d) No Security. Although the Applicant proffers the usual undertaking as to damages she does not offer any security for that undertaking. This is unsurprising in the circumstances. Given that the Applicant is in Nauru because that is where the Minister desires her to be, it is perhaps a little unreasonable to complain of a circumstance which the Minister may himself be seen to be the author. I do not think in the circumstances of this case that this should be a disentitling matter.
30 I therefore propose to grant injunctive relief. The parties should have a chance to formulate the appropriate orders. To my mind to assist there are three matters:
the orders of Murphy J in FRX 17 seem workable;
the treatment proposals of Dr Reynolds seem useful in the process;
a degree of consultation between the parties would be practical.
31 The orders should include liberty to apply on short notice. Finally, I note the next plane out of Nauru is on Wednesday 7 March 2018. To be quite clear, the boy and his mother should be on that plane.
32 I direct the parties to bring in draft orders to give effect to these reasons by 1:30 pm tomorrow.
33 Subsequent to the hearing I made orders on Tuesday, 6 March 2018 largely to the effect to the draft orders agreed to by the parties. These orders appear on the orders page.