FEDERAL COURT OF AUSTRALIA

EHW18 v Minister for Home Affairs [2018] FCA 1350

ORDERS

THE COURT ORDERS THAT:

1.    Under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c) of that Act, publication of the name of the Applicant (who is to be referred to by the pseudonym EHW18) be prohibited.

2.    As soon as reasonably practicable, the respondents ensure that the applicant is brought from Papua New Guinea to a location in Australia where the applicant can receive:

2.1    an immediate psychiatric evaluation by a psychiatrist in an acute, adult, mental health inpatient unit with a Mental Health Intensive Care Unit and treatment as recommended by that psychiatrist.

2.2    an immediate ophthalmic examination in a tertiary eye centre by an ophthalmologist and ongoing management and treatment as recommended by that ophthalmologist.

2.3    access to an accredited Arabic-language interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated as recommended in accordance with paragraphs 2.1 and 2.2 above.

3.    The respondents provide to the applicant’s solicitors at least two clear business days’ notice before taking any steps to return the applicant to Papua New Guinea.

4.    As soon as reasonably practicable and within three weeks, the respondents provide to the applicant’s solicitors his complete medical records and all documents relating to his medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation:

4.1    Full medical reports;

4.2    All clinical/progress notes in respect of the applicant’s medical conditions including his mental health and loss of vision;

4.3    Copies of any recording or film or other test records in respect of the applicant’s medical conditions including mental health and loss of vision;

4.4    Referral letters;

4.5    Specialist assessments;

4.6    Medical assessment records; and

4.7    Correspondence with the Department, officers, agents or delegates of the respondents in relation to the applicant’s medical conditions and treatment.

5.    The proceeding be heard on an expedited basis.

6.    The proceeding be listed for a Case Management Hearing on a date to be fixed by agreement between the parties and the Court.

7.    Costs be reserved.

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

REASONS FOR JUDGMENT

MORTIMER J:

The proceeding and the interlocutory application

1    On 30 August 2018, the applicant commenced a proceeding in this Court, seeking injunctive and declaratory relief against the Minister for Home Affairs and the Commonwealth, as well as damages. He also sought interlocutory relief, and I heard that application on the morning of 31 August 2018. On that day, I made the orders set out at the end of these reasons. In the end, the respondents did not oppose the orders made, although they did not consent, and there was some argument about the terms of the orders. Both the applicant and the respondents sought reasons for the orders. These are the Court’s reasons.

2    Orders were also made pursuant to s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(c) of that Act, that the publication of the name of the applicant (who is to be referred to by the pseudonym EHW18) be prohibited. I shall refer to the applicant as “the applicant” wherever possible, rather than by the acronym, including in quotations from the evidence.

3    The applicant sought urgent interlocutory relief, in substance that the respondents be required to take all steps within their power to transfer him as soon as reasonably practicable (and, the applicant contended, within 24 hours) from Papua New Guinea to a location where he could receive:

(a)     urgent and immediate psychiatric evaluation and treatment in appropriate circumstances;

(b)    an urgent ophthalmic examination including fluorescein angiography, and electrophysiology testing of his eyes, in an appropriate tertiary eye centre by an ophthalmologist; and

(c)    appropriate ongoing low vision and/or disability services that he needs.

4    None of this, he contended, is available for him in Papua New Guinea.

5    The approach the Court should take to an interlocutory application such as this is well established. The following approach reflects what I said in my reasons for judgment in Friends of Leadbeater’s Possum Inc v VicForests (No 3) [2018] FCA 652.

6    The general statement of principle on the first limb of the test in Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57 is that an applicant must show a sufficient likelihood of success to justify the grant of an injunction. How the Court determines whether there is a sufficient likelihood depends on the nature of the right being asserted and the practical consequences that are likely to flow if an injunction was granted: O’Neill at [65] (Gummow and Hayne JJ; Gleeson CJ and Crennan J agreeing at [19]). At [65], Gummow and Hayne JJ made it clear that the phrase “sufficient likelihood” does not mean an applicant must show it is more probable than not that it will succeed at trial.

7    The second limb of the test is for the Court to assess where the balance of convenience lies: O’Neill at [65]. In this assessment, the Court will consider whether the injury or damage identified by the applicant for interlocutory relief outweighs, or is outweighed by, the damage or injury the respondent would suffer if injunctive relief is granted: see: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; 118 CLR 618 at 622-623.

8    It is also well established that where an applicant presents a strong prima facie case, it may be that the balance of convenience need not be so strong in her or his favour. The opposite is also true: a weaker prima facie case, but a stronger argument on balance of convenience, may still result in injunctive relief being granted.

9    One further, and important, statement of general principle can be drawn from an authority to which Gummow J referred with approval in Businessworld Computers Pty Ltd v Australian Telecommunications Commission [1988] FCA 206; 82 ALR 499 at 502. It is a statement by Hoffmann J in Films Rover International Ltd v Cannon Film Sales Ltd [1986] 3 All ER 772. His Lordship said (at 780-1):

I think it is important in this area to distinguish between fundamental principles and what are sometimes described as ‘guidelines’, ie useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the ‘wrong’ decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been ‘wrong’ in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.

10    Accordingly, the approach I took in deciding whether to make the orders sought, recognising the principles I have set out at [5]-[9], was also to consider which course carried the lower risk of injustice. For the reasons set out below I was in no doubt that the course which carried the lower risk of injustice was to make orders that the applicant should be taken from Papua New Guinea as soon as reasonably practicable so he could be given the treatment he needs.

11    The applicant filed, and read, the following affidavit evidence in support of the interlocutory application:

(a)    The affidavit of Arti Chetty, a solicitor employed by Russell Kennedy Lawyers, affirmed 30 August 2018;

(b)    The affidavit of Luke McLean, a solicitor employed by Russell Kennedy Lawyers, affirmed 30 August 2018;

(c)    The affidavit of Natasha Blucher, Detention Advocacy Manager of the Asylum Seeker Resource Centre, affirmed 28 August 2018;

(d)    The affidavit of Sandra Bartlett, Detention and Offshore Casework Coordinator at the Asylum Seeker Resource Centre, affirmed 29 August 2018;

(e)    An expert report dated 21 August 2018 by Dr Natalie Johnston, a Consultant Psychiatrist (annexure “LRM-10” to the affidavit of Luke McLean); and

(f)    An expert report dated 29 August 2018 by Dr Hessom Razavi, Ophthalmologist (annexure “LRM-12”).

12    No objection was taken to that evidence by the respondents. That evidence amply supported the need for the interlocutory relief, as I develop below.

The applicant’s circumstances

13    The applicant was at the time of the interlocutory application an inpatient in Pacific International Hospital in Port Moresby.

14    He is 46 years old, and originally from Iraq. His family remain in Iraq. He arrived on Christmas Island on about 1 October 2013 to seek asylum. A few days after his arrival in Australia, the applicant was taken to Papua New Guinea, against his will, under s 198AD of the Migration Act 1958 (Cth). His claim to protection was assessed in Papua New Guinea and he was recognised as a refugee by the Government of Papua New Guinea pursuant to the Migration Act 1978 (Papua New Guinea). That was approximately three years ago.

15    Even after being recognised as a refugee, the applicant remained in the Manus Island Regional Processing Centre, until its closure in late 2017. He was then moved to one of the three transit centres established for all those people who moved out of the processing centre. These centres were built by the Australian government. All the centres are near the town of Lorengau. The applicant went to East Lorengau Refugee Transit Centre on Manus Island.

16    There is a medical clinic in East Lorengau Refugee Transit Centre. The evidence before me is that it is operated pursuant to contractual arrangements with the Australian government by the Pacific International Hospital. It has limited facilities. There is also a hospital in Lorengau, called Lorengau Hospital. The evidence before me is that its facilities are very basic. It must service the local population as well as all the refugees and asylum seekers who have been relocated to the area.

17    Ms Blucher deposes that in October 2017 a man, whose name I will not reproduce here, hanged himself outside of the Lorengau hospital after he had been taken there for acute psychiatric needs. The Minister did not suggest this evidence was inaccurate. I refer to it because it is capable of being probative of the reality of the risk facing the applicant, where there are limited and basic facilities available to treat people such as the applicant, with complex medical needs.

18    The applicant has a number of serious health conditions. Individually, they are significant. Cumulatively, I have no doubt on the evidence before the Court that they would be extremely debilitating for any individual, let alone a person who has fled persecution, is living in a situation of ongoing uncertainty, in a developing country with which he has no ties and no family or cultural connections, and in which he has directly experienced considerable violence, where he neither speaks nor understands any local language, nor English.

19    The applicant is diabetic. The expert evidence before the Court describes him as permanently blind in the right eye from “traumatic optic neuropathy”, following an alleged assault in the riots in the Manus Island Processing Centre in 2014. His examination findings in this eye are consistent with a mechanism of blunt injury to the eye and/or eye socket. The expert evidence states that nothing further can be done for this eye.

20    He is also experiencing reduced vision in his left eye, the cause of which has not yet been determined. This, the expert evidence states, needs further investigation, in order to elucidate the cause of poor vision. The expert evidence indicates that the applicant’s diabetes can also slowly and progressively damage the eyes over time as a “silent disease”.

21    The applicant has also, on the evidence, been diagnosed with Major Depressive Disorder, which is severe, with melancholic features, and Post-traumatic Stress Disorder, and currently presents with an extremely high risk of suicide. This diagnosis was made by Dr Johnston, after having spoken to the applicant by telephone, with an interpreter, and having examined his medical records. While that is a far from wholly reliable situation in which to make a diagnosis, for the purposes of the interlocutory application I am prepared to accept that diagnosis. In any event, there is other evidence about what has happened to the applicant on Manus Island that is strongly probative of the allegations in the statement of claim that he is at high risk of suicide. Ms Bartlett gives detailed evidence about the events of 24 July 2018, when she was speaking to the applicant by telephone, and he told her that he wanted her to help him write a suicide note that would go to the public and that he would kill himself. It was the same day, later in the evening, that the applicant attempted suicide using a razor blade to cut his wrist and stomach. Even after he was moved to Port Moresby following this incident, Ms Bartlett deposes that the applicant was discharged from hospital after three or four days to a hotel, where he collapsed and could not see for a while, and had to be taken back to hospital by ambulance.

The Applicant’s claims in the proceeding

22    Broadly speaking, the applicant alleges that the respondents (either or alternatively both of them) owe him a duty of care to exercise their statutory powers (as vested in the Minister) and non-statutory executive power to take all reasonable steps:

(a)    to procure for the applicant a reasonable and adequate standard of medical treatment;

(b)    to avoid or minimise the risk of the applicant suffering the harm which it is alleged he has suffered and will suffer.

23    The duty of care is said to arise from circumstances including the control exercised by the respondents over the medical treatment of the applicant and their assumption of responsibility for that medical treatment, including the location of the medical treatment and the manner in which the applicant receives treatment. It is alleged that the applicant has no means, or ability independently to access medical treatment, including the Psychiatric Ophthalmic Treatment it is alleged he needs. The applicant contends the respondents know or ought to know that failure to procure adequate and reasonable medical treatment for him may cause him harm, including the real risk of irreparable injury.

24    The applicant alleges the respondents have breached their duty of care to him by failing to take all reasonable steps to seek to ensure that the applicant receives reasonable and adequate medical care, in circumstances where his need for such care is pressing, and ongoing. The conduct said to constitute the breach of duty is divided broadly into two categories: one relating to the applicant’s vision and eye difficulties, and one relating to his psychiatric condition.

25    In the first category, the applicant alleges his left eye has been deteriorating (that being the only eye he can see out of following the assault), and since there has been no success in determining why this is so, the Commonwealth, through its providers and agents have failed to make arrangements to transfer the applicant to a location where he could be provided with the Ophthalmic Treatment he needs as soon as possible. Other failures are also alleged, such as not providing a review of the condition of his left eye that had been identified as necessary; delaying a transfer of the applicant to Port Moresby to have his eye condition further investigated; and then transferring him to a hospital operated by the Commonwealth’s contractors in Port Moresby on approximately 2 August 2018, where, in any event, the Ophthalmic Treatment he requires could not be provided, and where no accredited Arabic interpreters could be made available to the applicant, and he has had to rely on other refugees assisting him as and when they can.

26    In the second category, the applicant alleges that the respondents have failed to take all reasonable steps to ensure that the applicant receives reasonable and adequate psychiatric care, in circumstances where his need of such care is both acute and continuing. The applicant contends the respondents have known since at least 22 July 2018 that the applicant was expressing suicidal thoughts and was at high risk of committing suicide. Yet they have failed, he contends, through their contractors, to make arrangements to transfer the applicant to a location where he could be adequately treated for his psychiatric conditions. That failure, the applicant alleges, meant he was kept in the ELRTC, inadequately supervised and treated, which led to his suicide attempt on 24 July 2018, when he cut his wrists and abdomen with a razor, causing significant injuries. The applicant also alleges other breaches such as discharging him from Lorengau General Hospital a few days after his suicide attempt despite him presenting an ongoing suicide risk; delaying a transfer to Port Moresby and when he was transferred (on 2 August 2018), taking him to a hospital where he could not be given the psychiatric treatment he needed, and where there were no adequate interpreting facilities to communicate with him. Finally, it is alleged the Commonwealth’s contractors allowed him to be discharged from the Port Moresby hospital on 22 August 2018 despite his continuing high suicide risk.

27    The applicant alleges no adequate and reasonable standard of care can be provided to the applicant in Papua New Guinea, because there is no acute, adult, mental health inpatient unit with a Mental Health Intensive Care Unit in Papua New Guinea in which the applicant can be adequately assessed and treated. As I have noted, he also identifies the absence of interpreting services and interpreters, the absence of a tertiary eye centre with capacity to undertake the tests the expert medical evidence suggests he needs, and the significant limits of disability services in Papua New Guinea for a person with his low level of vision.

The Commonwealth’s role on Manus Island and in Papua New Guinea

28    I was satisfied that the evidence before the Court established, at least at a level sufficient for the determination of the interlocutory application, a sufficient likelihood that the applicant could make out his allegations about the level of control exercised by the respondents over the lives and welfare of persons in Papua New Guinea in the position of the applicant, and the assumption of responsibility by the respondents for the welfare and needs of such individuals.

29    The applicant adduced evidence, both direct and indirect, about the role of the Commonwealth in the detention and processing of people removed to Papua New Guinea under s 198AD of the Migration Act, as well as about the ongoing role of the Commonwealth and its agencies in the lives of people such as the applicant.

30    The respondents did not dispute this evidence for the purposes of the interlocutory application.

31    It is sufficient to note several key aspects of the evidence about the arrangements. The arrangements have their principal source in a Memorandum of Understanding between the Commonwealth of Australia and Papua New Guinea in August 2013, under which Papua New Guinea undertook to allow persons transferred from Australia, including persons such as the applicant, to stay lawfully in its territory. In return, according to the Memorandum of Understanding, the Commonwealth would bear all of the costs associated with the arrangements, and would, cl 7 states, also provide other “assistance” to Papua New Guinea:

7.    Separate to the Costs incurred for the specific operation of this MOU, the Participants will develop a package of assistance and other bilateral cooperation, which will be in addition to the current allocation of Australian development cooperation assistance to PNG, and taking into consideration priorities which are consistent with the revised PNG-Australia Partnership for Development (endorsed by both Governments on 12 October 2011). This includes specific measures agreed to by Participants through the Joint Understanding between Australia and Papua New Guinea on Further Bilateral Cooperation on Health, Education and Law and Order, agreed on 19 July 2013.

32    Around the same time, there were administrative arrangements agreed between the Commonwealth and Papua New Guinea to cover their respective responsibilities relating to settlement of transferees and other persons in need of international protection. Those arrangements included matters relating to medical care of those detained, through a contract between the Commonwealth of Australia and International Health and Medical Services. That contract was also in evidence.

33    Mr McLean deposed, based in part on media releases from the Minister’s department, and in part based on an understanding gained from Ms Blucher, who also gave affidavit evidence on this application, that the IHMS contract ended in around April 2018, but IHMS has maintained, according to the departmental media release, “a core group of staff in Manus and Port Moresby to support the transition of the new health service provider”. The Commonwealth has entered into a new contract with an entity called Pacific International Hospital to provide health services to people such as the applicant, in the place of IHMS, and these services are provided either from Manus Island (serving the three transit centres there) by what Mr McLean describes as a “rudimentary clinic”, or through a hospital – which I will call the PIH hospital, in Port Moresby. There was little information available in the evidence about the standards at the PIH. As I set out below, at least one person (Dr Sundram) who could have provided that information considered he was precluded from doing so.

34    Mr McLean gives some hearsay evidence, based on conversations with another refugee and transferee from Australia, living in Port Moresby, about the other entities who are alleged to hold contracts with the Commonwealth for provision of services to persons in the position of the applicant, including provision of food, living essentials, accommodation, employment and personal property. There was also some documentary evidence exhibited to Mr McLean’s affidavit which corroborates the contention that it is Australian entities, either the Commonwealth directly or its statutory agencies such as the Australian Border Force, who control and provide for all aspects of the lives and needs of people in the position of the applicant, even since the closure of the processing centre on Manus Island. Included in this evidence is documentary evidence of a system requiring the seeking of permission by individuals in the position of the applicant for things they need for their welfare or daily lives. On the evidence given by Mr McLean, officers within agencies such as the Australian Border Force must be provided with these requests before they will be attended to.

35    On the interlocutory application, the Commonwealth did not dispute these underlying circumstances. I accept that evidence for the purpose of this interlocutory application. It supports the applicant’s claims about an assumption of responsibility for him, and for his welfare, as the foundation of the duty of care.

The key medical evidence on the application

36    The application relied principally on two pieces of expert evidence.

37    First, the report of Dr Natalie Johnston dated 21 August 2018. Dr Johnston is a psychiatrist and on this application the Minister did not challenge her expertise. Her concluding opinion, having spoken to the applicant and made a diagnosis on that day, and having examined his medical records, is that he requires;

[M]edical evaluation and treatment in an acute, adult, mental health inpatient unit. [The applicant] should be treated in a mental health inpatient unit with a Mental Health Intensive Care Unit. He should be evaluated and managed initially in the Intensive Care Unit due to the high level of risk, and severe level of distress that he is experiencing.

(identifying information removed)

38    Dr Johnston expresses the opinion that:

If [the applicant] were a patient in Australia presenting with these symptoms, he would be assessed as extremely high risk, and all attempts would be made to transfer him to a safe and specialised facility for further evaluation and treatment. In my opinion, [the applicant] is not currently being treated in such a facility, and therefore needs to be transferred to an appropriate facility as described above.

It is my strong opinion that this transfer needs to occur urgently, in order to prevent [the applicant] acting on his suicide plan. From my phone assessment today, I believe his intent to act on this plan is imminent.

(identifying information removed)

39    Second, the report of Dr Hessom Razavi dated 29 August 2018. Dr Razavi is an ophthalmologist, and again on this application the Minister did not challenge his expertise. Indeed, Dr Razavi had been involved in the applicant’s care and treatment shortly after he was assaulted and lost sight in his right eye, and was engaged by IHMS, the Commonwealth’s then medical contractor on Manus Island, to treat and assess the applicant at that stage. Dr Razavi provided a report, and also a response to further information from PIH Hospital about the applicant’s current condition and treatment. It is sufficient to set out the substance of that later response, which incorporates the key opinion in Dr Razavi’s report:

[The applicant] has unexplained visual impairment in the left eye. The attached report describes largely normal examination findings and a degree of refractive error (need for glasses), but neither of these explain why his vision in the left eye remains moderately impaired.

The definitive test to ascertain his objective optic nerve and retinal function is electrophysiology testing (EPS), as mentioned in my letter. EPS testing is not mentioned in the status report from PIH. The PIH report is also unclear as to whether fluorescein angiography was actually performed (no results detailed), and fundus autofluorescence (another useful test) is not mentioned either.

These are tests that we would perform in Australia for any patient with [the applicant’s] ocular findings.

(identifying information removed)

40    For the purposes of the interlocutory application, I accept this evidence.

Other important aspects of the evidence

41    There is also evidence from Ms Chetty about two conversations she had on 23 August 2018 with Dr Suresh Sundram, a psychiatrist currently serving as the external expert advisor on health to the United Nations High Commissioner on Refugees for the Oceania region.

42    Although this evidence was hearsay, it was not objected to by the Commonwealth. Given Ms Chetty’s position as an Australian Legal Practitioner, and her obligations to the Court, and given Dr Sundram’s expertise and position with UNHCR, I was prepared for the purposes of this interlocutory application not only to find this evidence is reliable and should be accepted, but to give it considerable weight.

43    Dr Sundram told Ms Chetty that he has been on three or four missions to Papua New Guinea including to Manus Island, in his capacity as the external expert advisor on health to the UNHCR. The last occasion on which he visited Papua New Guinea and Manus Island was in May-June 2018. He told Ms Chetty he has detailed knowledge about the health and mental health services available on Papua New Guinea and Manus Island for refugees and asylum seekers. He confirmed that there are public and private health services available in Papua New Guinea and Manus Island to refugees and asylum seekers, and the private health service is through the PIH hospital which is contracted to the Australian government to provide health services to refugees and asylum seekers in Papua New Guinea.

44    Dr Sundram was not able to disclose the information he has about the PIH hospital in Port Moresby because he has been told by the UNHCR it is confidential. However, aside from PIH, the only public inpatient mental health facility available in Papua New Guinea is Laloki Psychiatric Hospital in Port Moresby. The LPH is not resourced to provide refugees and asylum seekers with psychiatric care. He told Ms Chetty that the hospital is at capacity and the clinicians at LPH do not have specific expertise to deal with the psychiatric needs of refugees or asylum seekers and are unable to provide inpatient psychiatric care to the applicant. It is not in Dr Sundram’s opinion, a viable option. There is a mental health nurse on Manus Island, however he is at capacity addressing the needs of the local population and does not have specific expertise to deal with the psychiatric needs of refugees and asylum seekers. There is no inpatient mental health facility on Manus Island. Dr Sundram told Ms Chetty that the psychiatric problems that refugees and asylum seekers present are complex and the experience of clinicians in Papua New Guinea is limited in that perspective, and would not be comparable to the services provided in Australia. He also told Ms Chetty that there are a limited number of interpreters in Papua New Guinea, in contrast to Australia, where face-to-face interpreting is available. There are now no interpreting services on Manus Island.

The Commonwealth’s position

45    It is clear from Mr McLean’s evidence that Russell Kennedy Lawyers, on behalf of the applicant, have been communicating with the respondents to attempt to have the applicant’s needs met since mid-August 2018. The applicant’s legal representatives asked the respondents, through their legal representatives, a number of questions about the standard of care and facilities at PIH, but received no substantive information in response.

46    On 24 August 2018, the applicant’s legal representatives sent an email to the respondents’ legal representatives, which relevantly stated:

Further to our email of 23 August 2018, we are instructed that our client was seen by Dr Tienang approximately 8 days ago for half an hour, however our client instructs that he has not seen Dr Tienang since that time.

We note that on 22 August 2018, after he had already been assessed by Dr Tienang, Pacific International Hospital (PIH) sought to discharge him. It was only after we provided a copy of Dr Johnston’s report, and spoke with the Medical Director that they agreed not to discharge him.

47    There was some debate between the lawyers about whether the applicant would or would not be discharged, about whether Dr Tienang was permanently present on Manus Island or only a visiting clinician there, and the like. The stand-off continued and Mr Lukic, the respondents’ legal representative did not, on the evidence, provide the applicant’s legal representative with the answers he said he would by the time he said he would in the correspondence.

48    There was more correspondence about medical records but, on the evidence before the Court, no actual response from the Commonwealth to the applicant’s legal representative’s proposal that, on the medical evidence and especially the report of Dr Johnston, it was clear he needed to be moved from Papua New Guinea. There was, instead, prevarication. That prevarication appeared to support the applicant’s allegations that his health and welfare needs were being neglected, or at least not given the attention and priority they required.

Resolution

49    In reaching my decision, I read and considered the series of recent authorities in this Court where similar orders to the ones sought today have been made, namely: Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17; FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63; AYX18 v Minister for Home Affairs [2018] FCA 283; DCQ18 v Minister for Home Affairs [2018] FCA 918; DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050; BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060; DRB18 v Minister for Home Affairs [2018] FCA 1163; and DWE18 as litigation representative for DWD18 v Minister for Home Affairs [2018] FCA 1121. In each of those cases, orders have been made either expressly requiring, or with the effect that, the applicant be removed or evacuated for medical treatment.

50    The issue before me was confined to the grant of interlocutory relief. The broader question of where the applicant needs to stay on a longer term basis, in order that his multiple health needs are properly and sustainably addressed, was not for determination by me. This affected the orders I considered appropriate about reasonable notice of removal, rather than any ongoing injunctions against removal of the applicant. None of the evidence has been tested, but I was satisfied it provided an ample foundation for interlocutory orders – in part because there is considerable consistency across a number of witnesses about the conditions in Papua New Guinea and the facilities available, including documentary evidence, and because there is independent expert evidence firmly supporting the applicant’s contention that he cannot be adequately cared for in Papua New Guinea, and supporting the urgency of the need to take him out of Papua New Guinea.

51    Accordingly, for the purposes of the interlocutory application I found the applicant’s claims that the respondents owe him a duty of care, and that the duty of care had been breached, and was continuing to be breached, to have a sufficient likelihood of success to warrant the grant of relief to avoid further harm to the applicant. I accepted, for the purposes of interlocutory relief, the applicant’s claim that compliance by the respondents with their duty of care, in terms of its content, necessarily involved removing the applicant from Papua New Guinea and taking him to a place where all of his medical and psychiatric health issues can be adequately addressed, in a sustainable and appropriate way. This included the use of Arabic interpreters so that first, the applicant’s treatment can be effective, especially his psychiatric treatment, and secondly so the applicant can properly understand the proposed treatment and give informed consent to it. The applicant is no less entitled to these aspects of medical care than any other person who receives medical or psychiatric treatment, in circumstances where a duty of care is owed to that person.

52    As to the balance of convenience, I found the evidence comfortably established that there was a real likelihood of further harm occurring, and I was also prepared to find that the nature of the harm included a serious risk that the applicant may take his own life, or attempt to take his own life, and if he attempted to do so and did not succeed, there would obviously be further serious consequences for his state of health. However, I emphasise that the evidence comfortably satisfied me that the applicant’s life itself may be at stake. It would take a great deal to dislodge that as a factor in the balance of convenience, and indeed it is difficult to imagine what consideration could dislodge it.

53    What I refer to in these next paragraphs were not matters on which the Commonwealth relied in submissions before me. It did not oppose the orders being made and there was no occasion for these matters to be put in issue. Nevertheless, they plainly arise on the evidence and I consider it is appropriate that I be clear on how I see these factors. I accepted that the Commonwealth would incur expense, and some diversion of its resources, in complying with the orders sought and that this is a matter to be taken into account in assessing where the balance of convenience lies. However, the Commonwealth is responsible for the predicament in which it finds itself. It chose, through both the statutory framework introduced into the Migration Act, and the exercise of executive power to create a system of detention and visa processing in developing countries which it funded, organised and to a significant extent controlled. It also chose to exercise specific statutory powers under s 198AD of the Migration Act to take the applicant to Papua New Guinea. It did so in circumstances where it is unclear whether any inquiry, or any adequate inquiry, was made of his health before that decision was made – for example, that he was a diabetic. One of the consequences of the applicant being taken to Papua New Guinea was that he was present during riots at the Manus Island processing centre and he was severely injured. Despite that injury, his other health conditions, and the consequences that the combination of these factors may have for his health and specifically, his vision, the Commonwealth has not removed him from Papua New Guinea.

54    One of the consequences of erecting this framework, and exercising powers under it, is that any duty of care which exists to people who are subject to that framework will be more difficult to discharge in certain circumstances. That is the case with the applicant. Accordingly, I give little weight to the fact that the Commonwealth will incur expense and diversion of resources in complying with the Court’s orders, because it is a direct consequence of the framework the Commonwealth has chosen to establish.

55    I gave the parties an opportunity to make submissions on an appropriate form of orders. There was some debate about various aspects of the orders. First, there was debate about what the orders should say about access to interpreters. I consider the overriding need of the applicant is for face-to-face interpreting to be available. However I accepted the Commonwealth’s submission that in less critical contexts, and on occasions, that may not be possible and so the orders should not be too prescriptive in this way.

56    Second, there was debate about whether the orders should include the words “location in Australia”. The respondents submitted the words should not be included. They submitted their inclusion would “set a precedent”. I rejected that submission. Each set of orders in these cases needs to be drafted with a close eye to the particular factual situation before the Court. On the evidence, there may well be a persuasive case that Australia is the only likely or reasonable destination. There may be problems with lawful entry into other countries, or whether the applicant consents to being taken anywhere else, bearing in mind that the provisions of the Migration Act (see s 198B) only authorise bringing a person from a regional processing country to Australia. A number of difficulties can be imagined. In the present case, the factual situation was that the Court was informed, prior to making the orders, that the respondents intended to bring the applicant to Brisbane. In my opinion in those circumstances it was appropriate that the respondents’ announced intention be recognised in the text of the orders.

ORDERS OF MORTIMER J

(31 August 2018)

1.    Under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c) of that Act, publication of the name of the Applicant (who is to be referred to by the pseudonym EHW18) be prohibited.

2.    As soon as reasonably practicable, the respondents ensure that the applicant is brought from Papua New Guinea to a location in Australia where the applicant can receive:

2.1    an immediate psychiatric evaluation by a psychiatrist in an acute, adult, mental health inpatient unit with a Mental Health Intensive Care Unit and treatment as recommended by that psychiatrist.

2.2    an immediate ophthalmic examination in a tertiary eye centre by an ophthalmologist and ongoing management and treatment as recommended by that ophthalmologist.

2.3    access to an accredited Arabic-language interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated as recommended in accordance with paragraphs 2.1 and 2.2 above.

3.    The respondents provide to the applicant’s solicitors at least two clear business days’ notice before taking any steps to return the applicant to Papua New Guinea.

4.    As soon as reasonably practicable and within three weeks, the respondents provide to the applicant’s solicitors his complete medical records and all documents relating to his medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation:

4.1    Full medical reports;

4.2    All clinical/progress notes in respect of the applicant’s medical conditions including his mental health and loss of vision;

4.3    Copies of any recording or film or other test records in respect of the applicant’s medical conditions including mental health and loss of vision;

4.4    Referral letters;

4.5    Specialist assessments;

4.6    Medical assessment records; and

4.7    Correspondence with the Department, officers, agents or delegates of the respondents in relation to the applicant’s medical conditions and treatment.

5.    The proceeding be heard on an expedited basis.

6.    The proceeding be listed for a Case Management Hearing on a date to be fixed by agreement between the parties and the Court.

7.    Costs be reserved.

Associate:

Dated:    5 September 2018