FEDERAL COURT OF AUSTRALIA

FJG18 v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1585

ORDERS

THE COURT ORDERS THAT:

1.    The mother of the Applicant be appointed as the litigation representative of the Applicant.

2.    On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), that publication of any name of the Applicant and his family members on Nauru and his family’s country of origin be prohibited under s 37AF of the Federal Court of Australia Act 1976 (Cth).

3.    The First Respondent, by himself or by his Department, officers, agents or delegates, as soon as reasonably practicable and within 42 hours, shall take all reasonable steps to ensure:

(a)    the Applicant and his family is transferred from Nauru to Australia to receive treatment at Sydney Children’s Hospital Randwick in accordance with the recommendations of Dr Karen Zwi dated 12 and 13 October 2018; and

(b)    the Applicant has access to an accredited interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated.

4.    The Respondents provide to the Applicant's solicitors at least two clear business days' written notice before taking any steps to remove the Applicant or his family from Australia.

5.    The Applicant’s Interlocutory Application be listed for further hearing by teleconference at 11am on 14 October 2018.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The applicant is a 12 year old boy. He is a refugee whom, whilst an asylum seeker, was involuntarily transported from Australia to Nauru in February 2014 by the second respondent. When this proceeding was first instituted by his mother, whom the Court has now appointed as his litigation guardian, according to the best available medical evidence, the applicant was “at imminent risk of death”. The applicant had refused any food or fluids for the prior 10 to 15 days, had not passed urine for several days and was unable to get up from his bed or even raise his head without feeling dizzy. In the prior 4 to 5 months, in which his mental health had substantially declined, the applicant had also lost 14 per cent of his body weight. He was increasingly withdrawn, lacked interest in any activities and was not communicating. He was depressed, not sleeping, suffering nightmares and bed wetting.

2    On that basis and having conducted consultations with the applicant’s mother and the applicant himself, Associate Professor Karen Zwi, a Community Paediatrician, in a report made on Friday 12 October 2018, concluded that the applicant’s symptoms demonstrated “the diagnostic features of Pervasive Refusal Syndrome, currently complicated by dehydration, with dangerously low levels of oral intake of fluids in the last 1-2 weeks”. Associate Professor Zwi continued:

[The applicant] has a background of significant mental health decline over months. [The applicant] needs high level medical care urgently and rehydration and safe re-feeding or his life will be at risk… Once he is medically stable he is likely to require paediatric expertise.

3    Associate Professor Zwi’s report was provided to the respondents on 12 October 2018 with a request for the applicant to be urgently transferred to Australia for medical treatment. The legal representatives of the respondents responded on 12 October 2018 by advising that the applicant had been transferred to the Republic of Nauru Hospital for ongoing review and treatment. It was said that the applicant’s case may be presented for consideration for transfer to the Overseas Medical Referral (“OMR”) Committee which was next scheduled to meet on Thursday 18 October 2018.

4    On Saturday 13 October 2018, Associate Professor Zwi provided a further report. She was asked to address two further questions – whether the level and nature of treatment proposed for the applicant on Nauru was sufficient to meet his medical needs and whether the medical facilities in Nauru are appropriate for the applicant’s medical needs. For those purposes, Associate Professor Zwi was provided with the response provided by the respondents’ legal representatives together with an affidavit (yet to be sworn) of Dr Nicholas Peter Martin, a general practitioner who worked as a Senior Medical Officer for International Health and Medical Services (“IHMS”) on Nauru between November 2016 and August 2017. In that affidavit, Dr Martin described the standard and availability of medical treatment on Nauru.

5    In her further report, Associate Professor Zwi described the applicant as “extremely unwell and at imminent risk of death”. In her view and despite her understanding that the applicant had received another intravenous fluid bolus, Associate Professor Zwi opined that the applicant “remains at significant risk of death within the next few days as he is likely to refuse fluids again and require further rehydration, with more kidney damage and deconditioning the longer this continues”. Her report noted that “fluid rehydration in inexpert hands can be dangerous as kidney function and (the applicant’s) electrolytes are likely to be abnormal”. Associate Professor Zwi concluded her report with the following observations (emphasis in original):

A child with this level of illness requires tertiary care facilities with expertise in acute medical management, complex slow refeeding, and expert child psychiatric care once he is medically stabilised. The current option of intravenous rehydration addresses only the dehydration. This is a short term measure that may prolong life for some days but equally it can be risky if electrolytes and cardiac function are not monitored with high level tertiary paediatric expertise. Even if the child is rehydrated, re-feeding can be dangerous if not undertaken with significant paediatric expertise. In my opinion, most hospitals in Australia would refer a child with [the applicant’s] constellation of symptoms to a specialist tertiary hospital as a matter of extreme urgency.

[The applicant] presented to me a strong intention to die if hope for his future is not restored. He is not interested in life in his current context and I do not believe he can be convinced to eat and drink (which would be dangerous if left to him and his family to monitor in any case). Once he is stable he will require expert child psychiatric care to restore his interest in living.

In my view [the applicant] requires immediate stabilisation and transfer to an Australian tertiary Children's Hospital for intensive management within 24-48 hours. He should be accompanied by his family as family separation is extremely likely to exacerbate his mental health problems and prevent him from engaging in treatment.

6    Having sought and not received from the respondents an undertaking that the applicant would be urgently transferred to Australia for treatment, these proceedings were instituted on behalf of the applicant on the evening of Saturday 13 October 2018.

7    By his statement of claim, the applicant asserts that the respondents owe him a duty of care to take all reasonable steps to procure for him a reasonable and adequate standard of medical treatment to be provided in an appropriate environment and to avoid or minimise the risk of the applicant suffering harm should he not be provided with an adequate and reasonable standard of care to address his medical condition of having the diagnostic features of Pervasive Refusal Syndrome complicated by dehydration and chronic malnutrition, as well as kidney damage and deconditioning.

8    The applicant asserts that the respondents are in breach of that duty and seeks injunctive relief as well as damages.

9    By his interlocutory application, the applicant sought urgent interlocutory relief including an order that the respondents, as soon as reasonably practicable and within 42 hours, ensure the applicant receives medical treatment at a tertiary centre in accordance with the recommendations of Associate Professor Karen Zwi.

10    The applicant’s application for interlocutory relief was first heard at a hearing which commenced at about 11 pm on Saturday 13 October 2018. At 1.11 am on Sunday 14 October 2018, I made the following orders:

1.    The mother of the Applicant be appointed as the litigation representative of the Applicant.

2.     On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), that publication of any name of the Applicant and his family members on Nauru and his family’s country of origin be prohibited under s 37AF of the Federal Court of Australia Act 1976 (Cth).

3.     The First Respondent, by himself or by his Department, officers, agents or delegates, as soon as reasonably practicable and within 42 hours, shall take all reasonable steps to ensure:

(a)    the Applicant and his family is transferred from Nauru to Australia to receive treatment at Sydney Children’s Hospital Randwick in accordance with the recommendations of Dr Karen Zwi dated 12 and 13 October 2018; and

(b)    the Applicant has access to an accredited interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated.

4.    The Respondents provide to the Applicant's solicitors at least two clear business days' written notice before taking any steps to remove the Applicant or his family from Australia.

5.     The Applicant’s Interlocutory Application be listed for further hearing by teleconference at 11am on 14 October 2018.

11    At the time of making the orders I indicated that I would deliver reasons at a later time. These are my reasons.

12    Of the orders made on 14 October 2018, orders 1, 2 and 4 were not resisted and the respondents indicated their preparedness to consent to those orders.

13    Subject to the timing of the transfer, the respondents were also prepared to consent to an order for the removal of the applicant and his family (his mother, father and two year old brother) from Nauru for the purpose of the applicant receiving medical treatment in Australia in accordance with the recommendation of Associate Professor Zwi.

14    From the respondents’ preparedness to so consent to the applicant’s transfer it may be inferred that, for the purposes of the interlocutory application, the respondents accepted that there was a serious issue to be tried as to whether they owed and were in breach of the duty of care alleged and that the balance of convenience favoured the grant of an order removing the applicant and his family from Nauru and transporting them to Australia so that the applicant may be treated in accordance with Associate Professor Zwi’s recommendations. In similar circumstances this Court has so held on a number of occasions: D7 v Minister for Immigration and Border Protection [2016] FCA 1331 (Perram J); FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63 (Murphy J); AYX18 v Minister for Home Affairs [2018] FCA 283 (Perram J); DCQ18 v Minister for Home Affairs [2018] FCA 918 (Robertson J); BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060 (Bromberg J); EHW 18 v Minister for Home Affairs [2015] FCA 1350 at [49] (Mortimer J); EMK18 v Minister for Home Affairs [2018] FCA 1357 at [32] (Mortimer  J); EUB18 v Minister for Home Affairs [2018] FCA 1432 (Mortimer J); and ELF18 v Minister for Home Affairs [2018] FCA 1368 (Mortimer J). Each of those authorities apply principles discussed in my reasons in Plaintiff S99/2016 v Minister for Immigration and Border Protection (2009) 243 FCR 17.

15    The substance of the dispute between the parties concerned the timing of the transfer of the applicant and his family to Australia. The respondents contended that an order requiring that transfer should not impose a 42 hour deadline as sought by the applicant, but should instead provide for the transfer of the applicant and his family to Australia “as soon as reasonably practicable and no later than Friday 19 October 2018”.

16    In support of their position, the respondents relied upon an affidavit prepared for a different proceeding and made on 11 October 2018 by Alana Sharmaine Sutherland, the Assistant Secretary, Regional Processing and Resettlement Branch within the Australia Border Force. There being no objection to that reliance, I have taken the content of that affidavit into account.

17    Ms Sullivan’s evidence addressed recent difficulties experienced by the respondents in securing the removal of individuals from Nauru in response to orders made by this Court. Ms Sullivan described the OMR process and stated that the Government of Nauru requires all medical transfers to be approved by the OMR Committee and also by the Government of Nauru. She further stated that the Government of Nauru will not necessarily act upon the recommendations of the OMR Committee and now requires that an additional and discretionary “uplift approval” be given personally by the Secretary of the Department of Multicultural Affairs.

18    The legal basis for the imposition of the departure restrictions referred to by Ms Sullivan was not given. Nor was the potential inconsistency between the departure restrictions to which she referred and her other evidence that once a person is recognised by Nauru as a refugee the person “may depart and re-enter Nauru” explained.

19    Nevertheless, I was prepared to accept that the respondents may well experience difficulties from the OMR Committee and the Nauruan Government in securing removal permission for the applicant and his family. I was also prepared to accept that the securing of that permission may cause delay.

20    Ms Sullivan’s evidence did not say that securing removal permission from the OMR Committee and the Nauruan Government could not be effectuated so as to facilitate the transfer of the applicant and his family to Australia within 42 hours. While Ms Sullivan’s evidence stated that there is an “overall trend whereby uplift approval is becoming more difficult, and taking longer, to obtain”, the possibility of transfer within 42 hours was not negated. It appears from Ms Sullivan’s evidence that, in the uncertain or fluid circumstances which seem to prevail in Nauru, it is not really possible to confidently predict the reaction of the OMR Committee or the Nauruan Government to any particular application for removal permission.

21    Additionally, Ms Sullivan’s evidence says nothing of the response of the first respondent and the Australian Government, at a governmental level, to the recent position said to have been adopted by Nauru and does not address the efforts that it may be expected the Australian Government has or is in the process of taking to secure the co-operation of the Nauruan Government, in order that compliance with orders made by Australian courts is facilitated.

22    The difficulties of securing the removal from Nauru of a person placed there by the respondents are, as Mortimer J observed in EUB18 at [35], matters “for a political resolution” as between the Government of Nauru and the Commonwealth of Australia. As her Honour went on to say at [36]:

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

23    In this case, and on the basis of the medical evidence to which I have already referred, the balance of convenience strongly favours the urgent transfer of the applicant to Australia. I am comfortably satisfied that the evidence establishes that time is of the essence and that any significant delay in the applicant accessing the medical treatment recommended by Associate Professor Zwi will put the applicant’s life at risk. That is an overwhelming and compelling consideration which, in my view, is not outweighed by the considerations upon which the respondents rely. The powerful and compelling nature of that consideration has been recognised in a number of judgments dealing with similar circumstances: see BAF18 (Bromberg J) at [58] (referring to FRX17 (Murphy J) at [71] and AYX18 (Perram J) at [29]); and EHW18 (Mortimer J) at [52].

24    Of significance, is that the terms of order 3 made on 14 October 2018 requires the respondents to “take all reasonable steps to ensure” the requisite transfer. So long as all reasonable steps are taken by the respondents, there will be no non-compliance with the order, even if it be the case that the unavoidable conduct of other persons has prevented the arrival in Australia of the applicant and his family within the 42 hours required by the order. In those circumstances, it seemed to me that the respondents’ legitimate concerns were adequately protected.

25    For those reasons I considered it appropriate to make the orders made on 14 October 2018.

Associate:

Dated:    19 October 2018