FEDERAL COURT OF AUSTRALIA

EWR18 v Minister for Home Affairs [2018] FCA 1460

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to r 9.05(1)(b)(iii) of the Federal Court Rules 2011 (Cth), EXJ18 be joined as the third applicant.

2.    Pursuant to r 9.62 of the Federal Court Rules 2011 (Cth), the third applicant be appointed as the litigation representative for the second applicant.

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

(a)    the name of the applicants or any member of the applicants’ family;

(b)    the identification number of the boat on which any applicant first arrived in Australia; and

(c)    the age of the first or third applicants;

(d)    the age of the second applicant, other than the fact that he is a minor;

(e)    the country of origin of applicants;

(f)    the name of any current employee of International Health and Medical Services.

4.    The first applicant hereafter be identified as EWR18.

5.    The second applicant hereafter be identified as EXI18 by his litigation representative EXJ18.

6.    The third applicant hereafter be identified as EXJ18.

7.    An order that the Minister by himself or by his Department, officers, agents or delegates shall, on an urgent basis, transfer the applicants to a location where the applicants can receive the ‘Specified Treatment’.

For the purpose of these orders, ‘Specified Treatment’ means:

(a)    as soon as is reasonably practicable, assessment in a tertiary hospital and such treatment as may be identified as necessary or appropriate as a result of the foregoing assessment; and

(b)    treatment provided by specialists not contracted by International Health and Medical Services or Australian Border Force.

8.    The respondents shall not return the applicants to Nauru without giving five clear business days’ notice in writing to the applicants’ solicitor or, in the event there is no solicitor on the record, the applicants.

9.    Subject to the first respondent exercising leave to approach the Court for a different order, such leave to be exercised within 7 days, the first respondent is to pay the applicants’ costs of the interlocutory application.

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

REASONS FOR JUDGMENT

(Revised From Transcript)

THAWLEY J:

1    This matter came before me urgently on 21 September 2018 in my capacity as General Duty Judge. The applicants sought orders requiring the Minister for Home Affairs to remove them from the Republic of Nauru for urgent medical treatment in Australia.

2    The first applicant is the mother of the second applicant, who is a minor. The third applicant is the daughter-in-law of the first applicant. She married the first applicant’s eldest son who committed suicide on Nauru on 15 June 2018. At the commencement of the hearing, I appointed the third applicant (who was then not a party to the proceedings) as the litigation representative for the second applicant. She was later joined to the proceedings. The orders which had been sought by the first and second applicants were to the effect that the third applicant also be removed from Nauru and brought to Australia for medical treatment.

background

3    The applicants are nationals of Country X who fled that country in 2013. The first and second applicants travelled to Australia by boat, which was intercepted by the Australian Border Force and escorted to Christmas Island in July 2013. The third applicant fled Country X by a different boat, which was intercepted by an Australian Customs vessel and taken to Christmas Island, also in July 2013.

4    Following understandings reached between the Commonwealth of Australia and Nauru, all three applicants were transferred to Nauru in January 2014. They were housed in a regional processing centre for four years until the first applicant’s eldest son committed suicide earlier this year. After that event, the first and second applicants were admitted to the Supported Accommodation Area of Nauru Regional Processing Centre 1 (RPC1). The applicants were subsequently moved to the Managed Accommodation Area (MAA) and later to the Restricted Accommodation Area (RAA), where they have remained since around 22 July 2018 under the watch of the International Health and Medical Services (IHMS). IHMS are contracted by the Australian Government to provide health services on Nauru. The Minister has access to the health records maintained by the IHMS. The applicants have never been provided a placement in a community settlement on Nauru.

5    The medical evidence will be set out in further detail below, however in summary form, the condition of each of the applicants has steadily deteriorated to a point where it is indicated that their removal is both appropriate and urgent. The respective medical conditions of each of the applicants deteriorated substantially following the suicide of the first applicant’s eldest son (being the second applicant’s older brother and the third applicant’s late-husband).

6    On 26 July 2018, the solicitor for the applicants wrote to the Minister requesting the immediate removal of the applicants from Nauru. The request was made so that the applicants could be provided with appropriate and urgent medical care. The letter was provided by email, sent also to the Australian Government Solicitor (AGS), and included the following:

I am writing to request the immediate removal from Nauru of [the first applicant], her [minor son] and her daughter-in-law … (our “Clients”) in order that they be provided with appropriate and urgent medical care. …

On 17 July 2018, [the first applicant] attempted suicide by cutting her wrist and attempted to strangulate herself which left a ligature mark around her neck. On 19 July 2018 she further self-harmed by repeatedly hitting herself with rocks until she started to bleed. …

Since his brother’s suicide in June 2018 [the second applicant] has been exposed to his mother’s highly distressed state of crying and shouting, appeared distressed himself, very teary with a flat mood.

On 3 July 2018 [the second applicant] was assessed by a psychologist to be at high risk of self-harm and suicidal ideations. His suicidal ideation fluctuated according to his contact with his mother …

On or about 20 July 2018 [the second applicant] attempted to cut himself with a knife, however was stopped by security with the result being a small scratch on his wrist. He was placed on high watch, however attempted again with similar results on 23 July 2018. There are reports of his increasing depressive state and suicidal ideations to ‘be with his brother’. …

Since her husband’s passing on 15 June 2018 [the third applicant] has been observed to be in obvious signs of distress, crying, hitting her chest and head, and depressed. She spent a significant period continuously outside on a mattress in the heat, next to the fence of the MAA, on the other side of which her husband’s body was in a container. She decreased her food and fluid intake over a number of days and on 20 June 2018 began food and fluid refusal, in the context of the unknown and unresolved circumstances surrounding the death of her husband. At times she took small amounts of oral fluid; and continually declined to engage with IHMS.

The only plan noted was for her to remain in MAA for respite until planned discharge date (22.6.18).

REQUEST FOR URGENT ATTENTION

The Commonwealth and the Department of Home Affairs are now on notice that the long-term health and possibly the lives of our Clients are at risk due to:

1.    The living conditions on Nauru;

2.    The mental health care that has been provided to our Clients to date has been ineffective; and

3.    That the mental health care they now urgently require, is not and cannot be delivered in Nauru.

The Commonwealth and the Department have a duty to act by facilitating the urgent removal of our Clients from the environment that is causing harm to a place where they can obtain the necessary medical care. …

We have instructions to commence legal action without further notice but given the urgency of this matter we would prefer to work quickly and efficiently with your client [the Minister].

7    The AGS responded to this letter by email on 26 July 2018 stating that the communication had been forwarded to the Minister.

8    On 14 August 2018, the solicitor for the applicants wrote to the AGS referring to the letter of 26 July 2018 and enclosing an additional history of events which had occurred since that letter. The letter attached a report of Dr Patricia Schmid (a psychiatrist with Médecins Sans Frontières (MSF)) dated 4 August 2018 concerning the first applicant, a second report from that doctor and Laura Perez dated 4 August 2018 in relation to the second applicant, and an “Assessment Summary” from Dr Carolyne Lima (a psychiatrist with MSF) dated 21 July 2018 (which, however, includes information from consultations on 25 July 2018 and 1 August 2018) in respect of the third applicant. The solicitor’s letter included the following:

As you are aware, we act for the abovementioned clients. We refer to our previous letter of 26 July 2018 where we provided a detailed history of the physical and mental health of our clients.

The circumstances of our Clients’ mental health have not improved …

Dr Schmid recommends that [the first applicant] be immediately admitted to an inpatient psychiatric facility to receive mental health care with specialised staff and unrelated to her son’s death.

She also recommends that [the second applicant], at the earliest opportunity, be transferred to receive intensive care in an inpatient child and adolescent psychiatric facility under the care of child and adolescent clinicians including child psychiatrist and psychologist, who are also unrelated to his brother’s death so that he can develop efficient therapeutic bonds.

Dr Lima recommends that [the third applicant] be immediately admitted to an inpatient psychiatric facility to receive mental health care with staff specialised in trauma, in an environment unrelated to her husband’s death.

The MSF clinicians note that none of the treatment required for this family is available on Nauru.

9    The letter concluded by saying:

We therefore request the urgent removal of our Clients from the environment that is causing harm to a place where they can obtain the necessary medical care.

We note that IHMS mental health professionals have repeatedly emphasized the trauma caused to this vulnerable class of people by family separation and we therefore request that the family unit be transferred together to ensure effective and conclusive treatment can be delivered to our Clients, and to ensure that none of them deteriorate even further if separated.

We have instructions to commence legal action without further notice but given the urgency of this matter we would prefer to work quickly and efficiently with your client.

10    No response was received to that letter. Before moving from it, it is relevant to note aspects of the content of the medical reports which had been provided. The report dated 4 August 2018 from Dr Schmid included:

[The first applicant]’s friends contacted MSF clinic in July 2018, stating that [the first applicant] wanted to be seen again by MSF psychiatrist. On 21/07/2018, [the first applicant] was brought to the MSF Clinic by two friends. She presented with traditional dressing and extremely depressed. Her affect was labile alternating extreme sadness with angry outbursts. [She] stated suicidal thoughts and history of frequent suicide attempts in the last month. [The first applicant] had a cut on her wrist as a consequence of a self-harm attempt, and said she had tried to hang herself more than three times. The day prior she had hit her head with a rock and she had prolonged bleeding. A wound was visible on her forehead.

[The first applicant] talked about her son’s death in Nauru on 15/06/18. [She] declared her life had ended with this loss: “he was my son, my friend, my heart, my everything”. [The first applicant] described the experience of staying next to her son’s body in RPC1 as an unbearable one. She stated thinking all the time about her son frozen in the refrigerator. [The first applicant] declared she could never trust IHMS or ABF [Australian Border Force] staff due to what they had done to her son’s body, not allowing a proper funeral.

[The first applicant] became desperate during the appointment and declared being a ‘horrible mother’. She said she took her sons out of [Country X] to give them a better life and now her son was dead frozen in a refrigerator. [The first applicant] repeated many times that she was a bad mother, who had no help of the authorities to take care of her sons and she asked me to give her medication to die. She said this was the help I could provide to her. I talked to [the first applicant] about being a doctor and that I could not help her to die, but we should discuss together other ways to help.

[The first applicant] got even more desperate after stating her guilty issues; she cried out loudly and strongly slapped her face, making it necessary to interrupt the appointment for her to return to RPC1. [The first applicant] had been prescribed medication by IHMS mental health team, but she could not state the names. [The first applicant] was extremely unwell in acute psychiatric crisis.

On 28/07/18, [the first applicant] was brought to MSF clinic again by friends. She came with two female friends and her younger son [the second applicant]. [The first applicant] stated she had been feeling unwell all the time. She said she had tried to hurt herself with stones the week before. She also declared she was worried about [the second applicant], as he had told her he wanted to die before her.

[The first applicant] said she had stopped attempting suicide due to [the second applicant]’s statement. However, she believed she would not be able to control herself for much longer. She stated she wanted to die and that life was not worth living anymore.

[The first applicant] talked about not having buried her son and the impact of this on her feelings. She said she had problems with religion when in [Country X]. She was a Muslim, but now she said she did not believe in God anymore. [The first applicant] said she had thought about converting to Christianity, because Christians were supposed to be kind to people. However, she had Christians not allowing her to bury her son and she did not believe in Christianity anymore.

[The first applicant] declared she had been feeling worse day after day and she had not been sleeping or eating properly. [The first applicant] talked about nightmares and said she had seen [her son] going down in the ground in a nightmare. [The first applicant] repeated many times that nobody could help her and, after a while, she began to cry out loud and got very agitated. After calming her down, it was necessary for her to return to RPC1, due to her distress.

On 04/08/2018, [the first applicant] was brought to the clinic by one friend and her young son [the second applicant]. [The first applicant] declared she had another suicide attempt the day before by jumping in front of a car. She seemed extremely sad, with a very disturbed facial expression.

…

[The first applicant] meets the DSMV diagnostic criteria for major depressive disorder. These criteria encompass symptoms which have to be present during at least two weeks and represent a change from previous functioning, such as depressed mood most of the day, markedly diminished interest in activities, decrease in appetite, sleeping disorder, fatigue, loss of energy, suicidal ideation and suicide attempts.

[The first applicant] has been on mental health treatment provided by IHMS since 2013, however she presented with an acute psychiatric crisis during recent evaluations. [The first applicant] had regular suicide attempts since the death of her older son. [The first applicant] had not been able to go through the grieving process since she has stayed at the same place as her son’s corpse with no proper funeral. [The first applicant] described the experience of imagining the frozen body of her son as unbearable to her.

[The first applicant] also declared mistrust issues towards IHMS staff which prevents her from developing therapeutic bonds, necessary to a quality mental health treatment. [The first applicant] was admitted at RAA/RPC1 (Restricted Accommodation Area/ Regional Processing Centre 1) on 15/06/18 and she had been there for nearly two months with continuous deterioration of her mental health status. [The first applicant] is unlikely to recover in this current situation and she is at extreme risk of completing suicide. Her [minor] son, [the second applicant], remains in a very vulnerable situation, presenting also with suicidal ideation. [The second applicant] lost his older brother and has been witnessing his mother make suicide attempts which is extremely adverse to his mental health. IHMS staff have been perceived by them as related to her son and brother’s death and the environment is adverse to any recovery process. MSF are unable to provide the intensity of care required in Nauru because we have only an outpatient clinic.

[The first applicant] needs to be immediately admitted in an inpatient psychiatric facility to receive mental health care with specialized staff and unrelated to her son’s death. Unfortunately there is no facility of this nature in Nauru. [The first applicant] will need the presence of her remaining family, younger son and daughter-in-law to achieve a proper recovery. [The third applicant] (daughter-in-law) has been the most important person in supporting [the first applicant] on a daily basis, since she has been staying with her at RPC1. Furthermore, [the first applicant] requires to be sent to a mental health facility with adequate cultural and linguistic support to foster an adequate environment and assure the effectiveness of the mental health care provided.

11    The report dated 4 August 2018 from Dr Schmid and Ms Perez which addressed the first and second applicant included:

[The second applicant]’s mother [the first applicant] has been extremely unwell since the death of her older son and she has also been seen by MSF Psychiatrist for psychological support. [The second applicant] has been following his mother to her appointments and she asked to have her son seen as well.

…

On 28/06/18, [the second applicant] was seen by MSF Child Psychiatrist and MSF psychologist and he presented very angry and irritable. [The second applicant] stated he was very sad with the loss of his brother and very worried about his mother. [He] declared he would kill himself, because he would not tolerate to witness his mother completing suicide. [The second applicant] reported having nightmares and trouble sleeping. He did not talk longer about these symptoms and focused his statements on the loss of his brother. [The second applicant] declared: “my mother is angry because my brother is in a container”, “if she dies, I’ll kill myself”. [The second applicant] mentioned a video he had done previously which was published on YouTube and he referred to that as his cry for help: “check on youtube, I asked for help to my family, and they did not listen to me…. I told my mother was dying”.

…

[The second applicant] missed his appointment on 05/07/2018 but on 23/07/2018, he attended a child psychiatric consultation at MSF Clinic. He seemed very angry and anxious, and moved many times on his chair during the session. [The second applicant] declared he stayed under the rain for hours the day before, willing to get sick and die. He stated he had been thinking about dying all the time and he repeated what he had said during the first appointment that he would die if his mother completed suicide. [The second applicant] declared he had warned Australia Border Force (ABF) about his suicidal plans and alleged he had told the ABF officers: “or I leave Nauru or I will kill myself”. He affirmed he had cut his wrist a month ago and could do it again.

…

On 04/08/18, [the second applicant] had a session with MSF psychologist while his mother was seen by MSF psychiatrist. [The second applicant] talked about his disinterest in any kind of activity since his brother’s death. He said he had been sleeping around two hours per day, but the night before he had not slept the whole night. When questioned about this, [the second applicant] mentioned that his mother tried to kill herself again the night before. He said his mother [the first applicant] had thrown herself into a running car and RPC1 officers held her. When asked about his feelings towards this episode, [the second applicant] said he felt ‘nothing’ and stated he wanted to kill himself as well. [The second applicant] affirmed he had chosen a day and a method: “I will hit myself with a big stone, and if I survive, I am going to throw myself from a high place”. [The second applicant] did not specify the place he had chosen for jumping.

Furthermore, [the second applicant] talked about all the activities he used to do with his brother and declared he missed doing that with him. Afterwards, [the second applicant] stated he fully understood why his mother wanted to die as well. [He] declared that if he died he would be closer to his brother, and he did not have any more motivation to be alive.

After some time, [the second applicant] heard his mother crying aloud in another room at MSF Clinic and he left the consultation room he was being seen in to be next to her. After that, [the second applicant] did not want to talk anymore.

…

[The second applicant] meets the diagnostic criteria for major depressive disorder according to DSMV, such as depressed mood, insomnia, psychomotor agitation, decrease in appetite, and recurrent thoughts of death or suicide. Children and adolescents may also experience additional symptoms like increased irritability, anger or hostility and persistent sad or irritable mood. Those additional symptoms could also be perceived during [the second applicant]’s mental status examination.

…

[The second applicant]’s mother has had several suicide attempts on a regular basis since 15/06/2018, and been unable to provide the parenting that [the second applicant] requires as a [minor] experiencing traumatic events. The only family member proving emotional support to [the second applicant] has been his sister-in-law. However, she has become very depressed lately and has also been undergoing mental health treatment.

[The second applicant] has been consistently stating suicidal ideation, declaring suicide plans that cannot be fully shared with his therapists. Established risk factors for suicide attempts and suicidal ideation during adolescence and young adulthood include childhood adversities. Indicators of childhood adversity occurring between birth and age 14 encompass death in family, parental psychiatric disorder, parental separation or divorce, residential instability with two or more changes in place of residence, parental substance abuse and parental criminality. The suicide risk is markedly high in young people exposed to [“]cumulative adversities”.

[The second applicant] is [a minor] and he had already been through almost all the indicators for childhood adversity including death in his family, mother with severe mental illness, separation from his father and loss of his home country. Additionally, [the second applicant] was raised in detention with no refugee status; therefore he was living in a camp, in tents, until the day he was transferred to RPC1 after losing his brother. He had no residential stability since he was [X] years old and fled his country with his mother and brother. As discussed in scientific literature, [the second applicant] had been exposed to cumulative adversities and his risk of completing suicide is extremely high.

[The second applicant] affirmed on 23/07/18, during his appointment with MSF Child Psychiatrist, that he would never recover from the loss of his brother while living in Nauru, but he believed he could recover if he had another environment to help him create new memories. [The second applicant]’s statement reveals that the current living conditions produce impossibility for developing efficient therapeutic bonds since he has been relating all aspects of living in Nauru to his brother’s death and also to his mother’s mental illness.

From the psychological point of view, it is important to consider that during the first session [the second applicant] mentioned a condition to his suicide plans, he related his suicidal plans related [sic] to his mother’s suicide attempts. After some appointments, he declared no conditions to his suicide plans. This is a clear sign of the worsening of depressive symptoms, since he stated a structured plan not related to any other condition.

We evaluate [the second applicant] as requiring intensive care in an inpatient child and adolescent psychiatric facility under the care of child and adolescent clinicians including child psychiatrists and psychologists. [The second applicant] needs clinicians unrelated to his brother’s death to be able to engage in a therapeutic process. [The second applicant] is at high risk of suicide and he has no parental support besides his sister-in-law due to his mother’s current mental health status. However, taken into consideration that his sister-in-law also has mental health issues, [the second applicant] might lack parental support in the near future, leaving him alone in an adverse environment.

[The second applicant] will need the presence of his sister-in-law while in an inpatient child and adolescent psychiatric facility and his mother will need appropriate mental health inpatient care also outside Nauru. [The second applicant] and his remaining family members will require proper cultural and linguistic support while in inpatient facilities. There is no inpatient child and adolescent psychiatric facility available in Nauru; therefore [the second applicant] needs to be transferred to an adequate facility at the earliest opportunity.

12    The “Assessment Summary” prepared by Dr Carolyne Lima dated 21 July 2018 included:

[The third applicant] reported that four years ago [redacted] and for the following two years she experienced avoidant behaviour to social interaction and places/situations; isolation, decreased interest in previous activities and difficulty in experiencing a positive affect. She also reported feelings of anxiety, depressed mood, flashbacks, nightmares, difficulties sleeping, and intrusive thoughts about the event. In 2015, [the third applicant] was intimidated by another refugee, and had an important exacerbation of all her previous symptoms. In 2016, the patient engaged in a hunger strike for around two weeks and passed more than six hours in front of the road thinking of jumping in front of the cars. Since then, the intensity of her symptoms had showed an oscillatory pattern, although the intrusive thoughts, nightmares and flashbacks persisted.

One month ago, [the third applicant] found her husband dead in her tent. Since then, [the third applicant] showed an exacerbation of all her previous symptoms, associated worsening of intrusive thoughts, images and flashbacks of her dead husband, hopelessness and blame.

13    The “Assessment Summary” then described her past psychiatric history. On examination on 21 July 2018 she was found to have suicidal ideation, “but no current intent”. The report of the examination on 25 July 2018 stated:

[The third applicant] reported increased frequency and intensity of symptoms, and the constant feeling of the presence of her dead husband and fear of being at home (where he was found deceased). She had persistent nightmares. She was currently helping care for her brother in law and mother in law with the help of some friends. She talked about her own difficulties and pain. She spoke about the fact of the impossibility of burying the body of her husband and this being important factor to increase the distress of all the family. She had persistent sleep difficulties and reduced appetite.

She reported suicidal ideation, but there was no plan or time established.

14    The report of the examination on 1 August 2018 stated:

[The third applicant] reported an increase of her symptoms and decreased ability to cope with the situation. She felt hopelessness and believed that “I’m so hurt that I cannot even recover myself”. She had persistent reduced appetite and sleep problems; although she reported the use of “sleeping pills” from IHMS.

She reported that she had a plan to put fire on herself “so then this people will listen to me” and that her mother in law has a similar plan. She also talked about her concern about the mental health of [the second applicant] (her brother in law).

15    The “Assessment Summary” ended with the following (footnotes omitted):

[The third applicant] has experienced PTSD for the last four years after [redacted] in Nauru. She showed some coping skills, although these skills were not protective enough to prevent the development of post-traumatic stress disorder and depression. As already posted on her files of IHMS: “Impression is of detention fatigue and depression in a lady with prior strength and confidence now eroded by prolonged detention and uncertainty”.

The circumstances and the death of her husband exacerbated her previous symptoms. Unnatural death is predictive of PTSD symptoms and it is reported in the literature that the loss can be viewed as a stressor, which in certain circumstances may trigger pathological responses. Bereavement may precipitate or intensify major depressive disorder and post-traumatic stress disorder and that “no life event is more likely to trigger a major depressive episode in a vulnerable individual than the death of a loved one”.

It is clear that the symptoms and the severity of [the third applicant]’s illness are beyond a normal grief process. Her coping skills have been depleted and are not enough to overcome the persistent presence of reminders of traumatic events.

Concerning the family dynamics, it is important to clarify that [the third applicant] although with her own struggles is also responsible for the care of her mother in law and brother in law. These relationships are important protective factors and it is likely if separated from her family, then her symptoms will be exacerbated and her risk of suicide increased.

[The third applicant] needs to be immediately admitted in an inpatient psychiatric facility outside of Nauru to receive mental health care with staff specialized in trauma, and in an environment unrelated to her husband’s death. She requires inpatient care due to her high current risk of suicide. [The third applicant] will need the presence of her brother in law and mother in law to achieve a proper recovery.

16    On 29 August 2018, the solicitor for the applicants again wrote to the AGS referring to the letters dated 26 July 2018 and 14 August 2018. That letter noted that, despite the family being accommodated in the MAA and the RAA, their mental health had deteriorated significantly. The email included:

Of note, is that since my letter of 14 August, [the second applicant] had to be forced to eat for some time by [the third applicant], in order for him to eat anything; and for the past week he has only been drinking milk. [The first applicant] refused food from about 20 August to 24 August, and since then consumes only small amounts with minimal fluid intake; is noticed to be very weak, not talking and resigned to a chair or bed. [The second applicant] has been visibly distressed by the circumstances and is punching and kicking the walls and sometimes talking to himself. He has recently drawn extremely distressing pictures, attached, showing his clear suicidal ideation.

[The third applicant] reports being overwhelmed with caring for her mother and brother-in-law, and suffers from her own mental health conditions. She reports she is the only one that is caring for [the first applicant] and places a heavy burden on herself to stay awake at all hours to ensure [the first applicant]’s safety.

I repeat my request for the urgent transfer of this family, from the environment that is causing them harm, to appropriate treating facilities as outlined in my letter of 14 August. I note that their treating clinicians have noted the necessity for all family members to receive treatment in the presence of each other to enable proper recovery. I hold grave concerns for the lives of my clients, either through FFR [food and fluid refusal] or in the event that previous suicide attempts will be repeated and could be successful.

17    The AGS responded to that email on 29 August 2018 stating: “I have sought instructions”.

18    On 13 September 2018, the solicitor for the applicants sent an email to the AGS referring to the previous correspondence and noting that no response had been received from the Minister in relation to the treatment and care of the family since the first communication dated 26 July 2018. The email of 13 September 2018 included the following:

We are instructed that [the second applicant] has further deteriorated and is no longer engaging with anyone, and in this regard has placed a sheet around his bed. We are instructed that the only time he leaves the room is to go to the toilet, being just once a day. [The third applicant] has to bring [the second applicant] noodles to his room for him to eat anything. This is his only meal each day. We are instructed that [the first applicant] is mostly consuming milk with very occasional food intake. She continues, since our last correspondence, to have limited interactions with others and barely talks.

In an update from the treating clinicians (attached) [the second applicant] disclosed that his deceased brother was like a father to him and has memories with him all over Nauru. It was noted that [the third applicant] had been taking care of [the first and second applicants], providing daily support to them both. She was responsible for scheduling their appointments and organising others to help transport [the first and second applicants] to appointments. During consultations [the first applicant] has had episodes of psychomotor agitation, in which [the third applicant] assisted to deescalate the crisis. Dr Schmid notes that since [her eldest son’s] passing [the first applicant] has been too unwell to fulfil her role as [the second applicant’s] mother and [the third applicant] has assisted with parenting [the second applicant]. Dr Schmid observes that [the second applicant] has been responsive to [the third applicant’s] direction and is comforted by her presence. Dr Schmid opines that if [the second applicant] is separated from [the third applicant] it would have detrimental effect on his mental health and wellbeing.

I request your clients to provide updated IHMS medical records since 27 July 2018 as a matter of urgency. Our Clients have made requests for their records without success to date.

This family has resided in the RPC [Regional Processing Centre] for three months now, which provides the most intense form of care that is available on Nauru, with no change in their presentation. I repeat the advices of treating clinicians, as detailed in my letter of 14 August 2018, that each of our Clients requires admission to an inpatient facility on an immediate basis.

I again request the urgent removal of our Clients from the environment that is causing them harm to a place where they can receive the clinically recommended medical care.

19    On 19 September 2018, the solicitor for the applicants wrote to the AGS noting that no substantive response had been received in relation to her communications. The applicants’ solicitor repeated “the advices of treating clinicians, as detailed in my letter of 14 August 2018, that each of our clients requires admission to an inpatient facility on an immediate basis”. She again requested the urgent removal of the applicants and indicated she had instructions to commence legal proceedings and intended to do so in the coming days. As far as the evidence before the Court indicates, no response has been received to that email.

20    By an interlocutory application filed 21 September 2018 (lodged electronically after 4.30 pm on 20 September 2018), the applicants sought urgent interlocutory relief in substance in the form of the various orders made today. The interlocutory application was supported by a number of affidavits affirmed by the solicitor for the applicants. Some of those contained unsworn affidavits of other individuals, the contents of which the applicants’ solicitor affirmed had been confirmed by the various deponents.

21    The applicants also filed an originating application, which articulated the substantive case in relation to which the interlocutory relief was being sought as follows:

1.     The Commonwealth, in exercise of its powers under s198AHA of the Migration Act 1958 and/or s61 of the Constitution owes a duty of care to the Applicant. The Commonwealth:

a.     transferred the Applicants from Australia to Nauru pursuant to s198AD and 198AHA of the Migration Act 1958 (Cth);

b.     maintains a significant involvement in the day-to-day operation of regional processing activities in Nauru in respect of the Applicants;

c.     maintains a significant involvement in the day-to-day health care, education, housing and welfare of the Applicants.

2.     The Commonwealth is in breach of the duty of care owed to the Applicants because the Commonwealth has failed to provide the Applicants with access to safe and appropriate medical facilities and treatment.

3.     As a result of the breach of the duty of care stated above the Applicants are suffering significant harm and are at immediate risk and are exposed to the risk of further serious harm including significant psychiatric and psychological harm and death.

4.     As a result of the above the Applicant should be granted injunctive relief applied to remedy the breach of the duty of care to the Applicant as outlined above.

22    The Minister did not submit that this Court did not have jurisdiction to entertain the application or grant the interlocutory relief sought. It is at least sufficiently arguable that it does – see, for example: S v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 217 (Finn J) and MZYYR v Secretary, Department of Immigration and Citizenship [2012] FCA 694; 292 ALR 659 (Gordon J).

23    The Minister neither consented to nor opposed the orders sought in the interlocutory application.

24    Although asked directly, no explanation was provided as to why no substantive response had ever been provided to the requests which had been made for the urgent removal of the applicants from Nauru.

ADDITIONAL Medical evidence

25    There was a significant amount of medical material before the Court in relation to the applicants in addition to that referred to above.

26    In relation to the first applicant, that material reveals the following. The IHMS made requests on 27 February 2017, 29 June 2017, 12 October 2017 and 3 April 2018 that the first applicant be removed from Nauru in order to access specialist assessment, treatment and/or surgery for chronic urinary incontinence and symptoms suggestive of vaginal prolapse.

27    The history of her physical problems can be summarised as follows. On 14 June 2016, she was taken to Port Moresby, Papua New Guinea to undergo a hysterectomy, endometrial ablation and dilation and curettage at the Pacific International Hospital. The doctor who carried out the procedure noted other serious gynaecological problems, including a moderately large cystocoele or prolapse and obvious pelvic floor laxity. The first applicant also presented with chronic back pain two weeks post-surgery and stress incontinence but “[t]hese symptoms were not further evaluated because these were not approved”. During her time in Port Moresby she presented with significant mental health concerns and stated she wanted to end her life. She was placed on “High Whiskey Watch – Within Arm’s Length” and given medication. The phrase “High Whiskey Watch” is used to refer to a patient who requires constant monitoring to protect against self-harm.

28    The IHMS referral request of 27 February 2017 included:

Currently, [the first applicant] is suffering from worsening urinary incontinence causing significant personal distress and having an adverse effect on her quality of life. The condition is potentially treatable but without specialist evaluation and management, she will have ongoing symptoms with adverse consequences on her quality of life and the potential for local soft tissue complications such as skin excoriation and infection.

IHMS Assistance recommends that [the first applicant] be transferred to Australia or equivalent third country option for further urogynaecology review and management.

29    The IHMS referral request of 29 June 2017 included:

[The first applicant] requires transfer for urogynaecological assessment (including urodynamic studies) and definitive urogynaecological management of stress and urge incontinence associated with vaginal prolapse.

IHMS has received a further opinion from Dr Maneesh Singh (Docto) who recommends that a urodynamic assessment be undertaken prior to any surgery being performed. Neither the RON [Republic of Nauru] hospital nor PIH [Pacific International Hospital] have the capacity to undertake this assessment nor do they have the capacity to undertake any required surgery. Based on the report from DOCTO, IHMS recommends the client to be transferred to Australia to have a urologynaecological assessment which will involve urodynamic studies and based on these results, to receive definitive management.

30    The referral request made on 3 April 2018 included:

IHMS still recommend timely care as previously advised, to ensure there is definitive assessment, diagnosis and appropriate treatment measures in place, as well as to ensure there are no complications. There are potential risks for delays in specialist treatment. If a cystocoele prolapse is left untreated, over time it may worsen and in some cases, severe prolapse can cause obstruction of the kidneys or urinary retention (inability to pass urine). This may lead to kidney damage or infection.

31    The document recording these referral requests also stated:

Comments: IHMS does not recommend the services provided at RON Hospital due to unsatisfactory standards. IHMS does not believe that the RON Hospital has the capacity to deal adequately with this case at this point in time.

…

Comments: Gynaecology services are available in PIH but, due to Visa restrictions placed on Nauru asylum seekers by the PNG government, transfer to Port Moresby is not possible. In addition, [whilst] PIH has general gynaecological services, it does not have specialist urogynaecology capability.

32    A significant amount of medical material addressed the first applicant’s mental health condition. On 8 May 2018 she was placed on “High Whiskey Watch”. When she was asked if she could keep herself safe she indicated: “Of course, I have my sons”. According to IHMS clinical notes, she had presented with a “dishevelled appearance, highly agitated, screaming, and beating her hands on edge of table”.

33    Her risk of self-harm was assessed as “moderate”. This was before the first applicant’s eldest son committed suicide on 15 June 2018.

34    On the day her eldest son committed suicide, the first applicant was transferred to SAA due to high levels of distress. The IHMS notes record that the second applicant (a minor) had been aware that his elder brother was dead but his mother had been unaware. When the mental health team arrived at the compound, the second applicant became agitated and asked them to leave because his mother would find out there was a problem. Ultimately, the mental health team transferred the first applicant to the medical clinic where she was informed of the death of her eldest son. The notes include:

She became very distressed and lay on the bed covered with a blanket, she was crying and screaming, interpreter not available at this time but later interpreter stated she was talking about suicide and telling her son she wanted him to come with [him]. The initial interpreter asked to be excused and another interpreter be utilized as he was distressed and unable to continue. Hamida replaced him. She had periods of slapping her face as an expression of her grief which the interpreter stated is culturally appropriate, allowed to express herself while staff supported her and ensured she was not harming herself.

She shouted [“]ABF killed my son[”]; and stated she wanted to speak to someone from ABF. She was advised this was not the best time to do this, she accepted this decision.

[The first applicant] was advised she was required to identify the body, due to the face being semi covered by the arm she stated she could not state this was the body of her son.

She wanted to go into the room [where] the body was but advised she was unable to do this as per the Nauru Police. She was escorted back to the clinic area and she lay on the bed with [the second applicant] supporting her.

Once the clinic was cleared and the body removed she was informed she would be going to the SAA for the night. She stated she wanted to see her daughter in law who was also in the back clinic area and was given the opportunity to speak with her prior to being taken in a wheelchair to the SAA.

She continued to have periods of extreme distress, crying, shouting, calling out her [son’s] name, all appropriate expression for the situation, she was able to respond to the comfort offered by those present.

35    It was noted that there was a risk of aggression from the first applicant directed towards the IHMS and the ABF. She was placed on “High Whiskey Watch”.

36    The first and second applicants were moved from SAA to MAA because the children in SAA were being exposed to the first applicant’s distress and they were in turn becoming distressed.

37    On 16 June 2018, the first applicant tied a pillow slip around her neck which was removed by the IHMS after she dropped to the floor. She expressed feelings of guilt concerning her son’s death. She stated that he had been angry with her for some time before his death.

38    On 17 June 2018, she tied a scarf around her neck which was quickly removed by security. She was highly distressed, screaming and shouting and asking to see her dead son. IHMS staff spent time with her but were unable to alleviate the distress. She was given medication.

39    Over the course of the following days, the first applicant engaged in various self-harming activities considered by IHMS to be consistent with suicidal ideation or attempted suicide. It is not necessary to document each of them. There was evidence which indicated that, in addition to attempts at strangulation which itself was evidenced by ligature marks, the applicant attempted suicide on 3 August 2018 by running in front of vehicles. She also lacerated her wrists with a razor blade.

40    Relevant aspects of the assessment of Dr Carolyne Lima dated 21 July 2018 (but which includes examinations after that date) have been set out above, as have relevant aspects of the report dated 4 August 2018 from Dr Schmid and the report dated 4 August 2018 from Dr Schmid and Laura Perez.

41    The first applicant’s and second applicant’s medical condition was also the subject of evidence from Dr Christopher Ryan, a psychiatrist at Westmead Hospital. He was provided with Dr Schmid’s report of 4 August 2018 concerning the first applicant and her report of the same date relating the first and second applicants. He was also provided with the IHMS medical records. He concluded that the first applicant suffered from three inter-related psychiatric syndromes:

1.    major depression which is currently very severe and which despite having been present for nearly four years has so far not been adequately treated by clinicians on Nauru;

2.    complicated bereavement triggered by the recent death of her elder son and related to her own guilt about this death and her feeling that ABF staff are partly to blame for the death and her inability to properly grieve.

3.    posttraumatic stress disorder related originally to the abduction of her elder son while both were in [Country X], but now also related to experiences in detention including those to the actions of ABF personnel.

42    He expressed the view that the first applicant’s treatment should include:

A full review of her psychiatric treatment to date and re-consideration of her diagnosis in a specialist centre. This will involve her and her son and daughter-in-law being transported off Nauru.

43    He stated:

Given the extent of [the first applicant]’s suffering and grave concerns about the possibility of completed suicide the above steps should be undertaken immediately.

Without adequate management [the first applicant] and her son will continue to suffer intense and pervasive distress and the longer this occurs the worse their long-term prognosis will be.

[The first applicant]’s ongoing severe psychiatric illness will be having and will, without her improvement, continue to have a very adverse impact on the health of her son.

There is little or no possibility that that [sic] clinical staff related to IHMS or ABF could carry out effective treatment interventions with [the first applicant].

In my opinion, there is no prospect that [the first applicant] or her son could be returned to Nauru.

44    These conclusions were evidently based on a careful and thorough analysis of the material provided to Dr Ryan, as the detailed reasoning in the report reveals.

45    The second applicant’s medical condition was the subject of a report from Dr Michael Gordon, a child psychiatrist who had been to Nauru to provide treatment to children on two occasions. He had been provided with the IHMS Health Summary for the second applicant, the report of Dr Shmid dated 4 August 2018 concerning the first and second applicant, and other material.

46    Dr Gordon stated:

[The second applicant] has a Major Depressive Disorder which in a [minor] with this clinical diagnosis is very unlikely to respond to antidepressant medication. [The second applicant] requires either intensive outpatient treatment by a dedicated Child and Adolescent Mental Health Service or an admission to a child or adolescent inpatient unit on the Australian mainland. The intensive outpatient treatment would need to provide several sessions per week and provide several modalities of treatment such as individual play therapy and family therapy. Further his mother and sister-in-law would need to accompany him and they would need mental health treatment in their own right. It appears that this treatment cannot be provided in Nauru because of the lack of specialist clinics and an inpatient unit to manage the symptoms and problems identified in [the second applicant] and his family.

…

[The second applicant] is at moderate risk in the short term (over the coming weeks) of a suicide attempt or completing suicide. This is especially true if his mother becomes more unwell or takes her own life. [The second applicant] has a number of risk factors including past attempts, hopelessness, chronic depression, suicide of his brother, suicide attempts by his mother, past trauma, lack of supports, intermittent engagement and his guardedness. [The second applicant] also knows other asylum seekers who are attempting suicide on Nauru, something which provides a very negative role model of how to deal with the very difficult situation for [the second applicant].

Further, [the second applicant] is not eating for periods of days at a time according to instructions provided to NJP [the applicants’ legal representative, National Justice Project] and is therefore at acute risk of dehydration and medical complications of starvation.

…

I believe that [the second applicant] is at risk of long-term chronic depression which will be difficult to treat the longer his condition continues. Should something happen to his mother or sister-in-law then I think that the situation will become intractable and not amenable to treatment. I believe the risk will increase over the coming weeks and months if he is not treated.

[The second applicant] is very protective towards his mother. He is very worried about her. The risks for [the second applicant] if he is not accompanied by his mother and sister-in-law are that he will become more anxious and depressed away from his primary attachment figures and it will be much harder for those treating [the second applicant] psychologically to help him.

…

[The second applicant] needs to be with his mother. It is not possible to assist [the second applicant] without his mother also receiving urgent mental health treatment. [The second applicant] also needs to be with his sister-in-law, particularly in circumstances where it appears his mother is unable to provide or care for him. Further, it appears that his mother may require inpatient psychiatric treatment, in which case, his sister-in-law will be required to be his sole carer.

From the notes, [the second applicant] does not trust people in Australians [sic] on Nauru believing that they are responsible for his brother’s death. [The second applicant] requires a culturally sensitive treatment, supported by his immediate family with appropriate treatment available to his mother and sister-in-law.

[The second applicant]’s supports are only his mother and [the third applicant]. There appears to be an acrimonious relationship between [the first applicant] and [the second applicant]’s father who has blamed [the first applicant] for their son’s suicide. [The second applicant] has said that he will kill himself if he is forced to go back to [Country X].

[The second applicant], his mother and [the third applicant] have not responded over many years of treatment on Nauru. Their mental health has only declined. After the death of her son, [the first applicant] does not trust IHMS and will not accept treatment from their staff. It is my understanding that Nauru does not have the mental health facilities that is required by [the second applicant] and his family.

In the IHMS file note from Rebecca Dale (psychologist) on the 31st August 2018 she opined that [the second applicant] would continue to deteriorate if he remained in immigration detention on Nauru in the his current conditions (living in a one bedroom share house with his unwell mother, unable to bury his brother and unable to process his grief).

…

I recommend strongly that [the second applicant] is transferred with his mother and sister-in-law to mainland Australia to be urgently assessed for either intensive outpatient treatment in tandem with mental health treatment of his mother and sister-in-law, or with consideration being given to possible admission to a child or an adolescent psychiatric inpatient unit.

The INTERLOCUTORY application

47    As mentioned, the applicants sought an urgent interlocutory injunction requiring the Minister to remove them from Nauru to Australia for urgent medical treatment. The Minister neither consented to nor opposed the interlocutory orders sought.

48    There are two main inquiries when deciding whether to grant an interlocutory injunction. The first is whether the applicant has a prima facie case in the sense of “a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial”; this does not mean the applicants must establish that they are more probable than not to succeed at trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57 at [65] (Gummow and Hayne JJ) and [19] (Gleeson CJ and Crennan J). As Katzmann J observed in SZTZM v Minister for Immigration and Border Protection [2017] FCA 534 at [39]:

What will be sufficient will depend on “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order he seeks”: Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622.

49    The second main inquiry is whether the inconvenience or injury the applicant would be likely to suffer if an injunction were refused outweighs the injury the respondent would suffer if the injunction were granted: O’Neill at [65].

50    These two main inquiries are equally applicable to public law disputes of the present kind: Re Minister for Immigration and Multicultural Affairs; Ex parte Fejzullahu [2000] HCA 23; 171 ALR 341 at [7] (Gleeson CJ); ABAR15 v Minister for Immigration and Border Protection [2016] FCA 363 at [18] (Charlesworth J); SZTZM at [40].

51    It has been noted that the two main inquiries when granting an interlocutory injunction are related in that “an apparently strong claim may lead a Court more readily to grant an injunction when the balance of convenience is fairly even” and “[a] more doubtful claim (which nevertheless raises ‘a serious question to be tried’) may still attract interlocutory relief if there is a marked balance of convenience in favour of it”: Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472 per Woodward J (Smithers and Sweeney JJ agreeing at 467 and 469 respectively); see also ABAR15 at [28].

52    It is important in the context of the present application to recognise that the interlocutory injunction sought is a mandatory injunction that goes well beyond the preservation of the status quo pending a final determination of the issues in dispute. In a practical sense, the granting of the injunction determines the case. In those circumstances, I have paid particular attention to the strength of the applicant’s claim for relief – see: DCQ18 v Minister for Home Affairs [2018] FCA 918 at [6] (Robertson J); FRX17 v Minister for Immigration and Border Protection [2018] FCA 63 at [42] (Murphy J).

Serious question

53    In my view, there is a serious question to be tried. That question is whether the respondents owe the applicants a duty of care to provide them with a level of medical care appropriate to meet their needs, including their mental health needs. The content of that duty in the circumstances of this case arguably includes an obligation to remove them from Nauru to a place where they can be admitted for appropriate medical treatment. In concluding that there is a serious question to be tried, I have had regard in particular to the analysis of Murphy J in FRX17 at [43] to [68]. I noted earlier that there was no issue raised as to this Court’s jurisdiction.

Balance of convenience

54    As to the second inquiry, I consider the balance of convenience clearly favours the applicants.

55    The Minister quite properly did not assert that the balance of convenience was anything other than in favour of the applicants.

56    It is clear that the applicants cannot get the urgent treatment that they require in Nauru. It appears that their respective situations can only deteriorate further in the circumstances in which they find themselves.

Conclusion

57    For these reasons, it is appropriate to grant the interlocutory relief sought.

58    The applicants applied for costs. I made an order for costs in their favour but in terms which permitted the Minister to apply for a different order if such application were made within seven days. No application was made. One matter I took into account in making the order for costs was the fact that the applicants had no choice but to commence proceedings seeking the relief they did in light of the fact that the Minister did not respond to a single letter that had been written requesting the urgent transfer of the applicants from Nauru and indicating that proceedings would be commenced. As has been noted earlier, those letters included detailed accounts of the conditions of the applicants and was supported by substantial medical evidence from treating doctors. The Minister also had access to the medical records kept by IHMS which contained extensive records in respect of the medical conditions of the applicants, some of which have been set out above. As noted above, the failure by the Minister to respond to the letters written on behalf of the applicants over an extended period was left unexplained. The failure to communicate any substantive response to these letters fell short of what is expected of a model litigant – cf: Appendix B of Schedule 1 to the Legal Services Directions 2017 (Cth) made under s 55ZF of the Judiciary Act 1903 (Cth).

Associate:

Dated:    9 October 2018