FEDERAL COURT OF AUSTRALIA

BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 3) [2019] FCA 809

FEDERAL COURT OF AUSTRALIA

BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 3) [2019] FCA 809

ADDENDUM

ROBERTSON J:

1    On 31 May 2019, after judgment was delivered ex tempore on this interlocutory application, the Minister’s legal representatives informed the Court that the applicant had been transferred from Nauru to Brisbane.

Associate:

Dated:    11 June 2019

ORDERS

THE COURT ORDERS THAT:

1.    Orders 1 and 2 of the orders made on 20 May 2019 are vacated.

2.    Upon the applicant’s removal from Nauru, the First Respondent is to use all reasonable endeavours for the applicant’s psychiatric and other medical assessment and treatment in accordance with that assessment, or such other treatment as agreed between the parties, such assessment and treatment to include treatment for the applicant’s dental condition.

3.    The matter be listed for further directions at 9.30am on 17 July 2019.

4.    Liberty to restore on short notice.

5.    Costs reserved.

THE COURT NOTES THAT:

6.    If the applicant has not been transferred from Nauru prior to 5.00pm AEST on 5 June 2019, the First Respondent agrees to file and serve by 12 noon on 6 June 2019 an affidavit setting out the steps taken to transfer the applicant from Nauru, the reason why the transfer has not taken place, and a reasoned estimate of when the applicant will be transferred from Nauru.

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

REASONS FOR JUDGMENT

ROBERTSON J:

1    When this matter was last before the Court, on 20 May 2019, I made orders directed to expediting the applicant’s transfer to the Taiwan Adventist Hospital: see BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 761. At that point the Overseas Medical Referral Committee of Nauru had decided, on 2 May 2019, that the applicant needed urgent medical treatment overseas and that the treatment was to be in Taiwan. The condition was described as “Arthritis TMJ” and the treatment recommended was “Dental”.

2    Since 20 May 2019, according to an affidavit sworn by Mr Peter Lawrence Timson, Acting Assistant Commissioner, Detention and Offshore Operation Command within the Australian Border Force, dated 28 May 2019, the following significant events have occurred.

3    It appears that any communications between the Department and the Taiwan Adventist Hospital are made through International Health and Medical Services (IHMS). As appears from that line of communication, the Taiwan Adventist Hospital requires a written guarantee of payment before it will consider finalising its acceptance of the applicant. This guarantee is to be in the form of a written acknowledgement of the estimated costs, details of what option the Department would pursue regarding accommodation, and an agreement that invoices would be paid within agreed timeframes. The hospital also wants to know in writing how the interpreter issue will be addressed, as a Farsi interpreter cannot be sourced in Taiwan. Once that information has been received by the hospital the applicant’s case will be considered for acceptance.

4    It appears from an email dated 22 May 2019 at 8.15pm that the appropriate or necessary steps in relation to transferring the applicant to Taiwan have not been taken further in light of the applicant’s case being discussed again at the senior executive level, to which discussion I now turn.

5    The applicant’s case was discussed on or about 22 or 23 May 2019 in a meeting on Nauru between the Director, Nauru Support Team within the Department of Home Affairs, the Nauru Health Liaison Officer (HLO) within the Australian Border Force and two doctors, both of IHMS. One of those doctors was the Psychiatrist and Medical Director (Offshore) for Mental Health. The other was the Senior Medical Officer of IHMS.

6    The applicant’s case was discussed both from a clinical perspective and from the perspective of the prescriptive requirements for being accepted to the Taiwan Adventist Hospital. One of the two IHMS doctors was to speak to Dr Smith, the psychiatrist at the Republic of Nauru Hospital, and request that the applicant be reviewed based on the emerging mental health issues and the difficulties that may be faced by the Taiwan Adventist Hospital in managing those behaviours.

7    The applicant was to be reviewed in the first instance by one of the two doctors of IHMS to whom I have referred, being the Psychiatrist & Medical Director (Offshore) for Mental Health. If clinically appropriate, the plan was to re-present the applicant to the Overseas Medical Referral Committee in the current week to seek amendment of the 2 May 2019 decision of that Committee so that the treatment would be in Australia instead of in Taiwan.

8    On 23 May 2019, the Senior Medical Officer of IHMS sent an email to Dr James Auto, the chairman of the Overseas Medical Referral Committee who had invited IHMS to present cases at the next meeting of the Committee. She asked if Dr Smith could be present at the meeting as there were a number of psychiatric cases, including the applicant’s.

9    Dr Smith reviewed the applicant’s case on or about 25 May 2019 and, having heard the IHMS psychiatrist’s update on recent developments concerning the applicant’s deteriorating mental health, Dr James Auto then instructed the IHMS psychiatrist to present the case at the next Overseas Medical Referral Committee meeting “for consideration of potential medical transfer to an appropriate facility” (as recorded by the IHMS psychiatrist).

10    The next meeting of the Overseas Medical Referral Committee of Nauru is scheduled for 2.00pm today, 30 May 2019, the time in Nauru being two hours ahead of AEST.

11    Still more recently, by a further affidavit affirmed 29 May 2019, Mr Timson deposed to further paperwork, as yet incomplete, in relation to the transfer of the applicant to the Taiwan Adventist Hospital. It does not appear that any conclusion has been reached in relation to an assessment of the costs of the arrangements to send the applicant to Taiwan. As at 28 May 2019 it was not clear to Australian Border Force what the cost would be for medical treatment at the Taiwan Adventist Hospital.

12    However on 27 and 28 May 2019 other communications were exchanged between relevant officials following a discussion on or shortly before 27 May 2019 between the IHMS psychiatrist and the Secretary, Multicultural Affairs of the Government of Nauru “around this man’s deteriorating MH.” It appears that there is a prospect that the applicant may be uplifted, which I understand to mean transferred from Nauru to Australia, tomorrow 31 May 2019. Uplift approval was given for the applicant by the Secretary on 27 May 2019. Although there was some debate before me as to the context in which this uplift approval was given, in my opinion that uplift approval is based on current information as it “followed very shortly after” the discussion between IHMS and the Secretary referred to above.

13    It seems that the difference in practical outcome may have been limited to whether to make the arrangements for transfer tomorrow, 31 May 2019, or wait for the formal Overseas Medical Referral Committee outcome and then make arrangements for the next available commercial flight.

14    In any event, a booking has been made for the applicant to travel by air from Nauru to Brisbane at 6.30am on 31 May 2019. It seems that the current plan is that he will be transferred to the Brisbane Immigration Transit Accommodation centre where he “can be reviewed by the GP on site, and referred to outpatient specialist services as appropriate.”

15    I also note but do not need to decide some disputed questions of fact arising from an affidavit dated 24 May 2019 by Mr Jayasinghe, the applicant’s solicitor, as to claims made by the applicant concerning his understanding of where on Nauru he was accommodated and the treatment he was receiving. It appears to be common ground that the applicant presently remains in what is called RPC1 (medical clinic) MAA for observation and pain monitoring and management by medical staff.

16    In these circumstances, the applicant initially sought the following orders.

1.    Orders 1 and 2 made on 20 May 2019 (Taiwan orders) are continued until such time as the applicant departs the territory of Nauru.

2.    In addition to compliance with the Taiwan orders, the respondents are to take all steps within their powers to:

a.    ensure that the applicant’s case is presented at the next OMR Committee meeting on 30 May 2019 to obtain an approval for the applicant’s travel to Australia;

b.    expeditiously seek uplift approval from the Government of Nauru, and any other necessary approval, for the applicant’s departure from Nauru; and

c.    if the approvals in (a) and (b) are obtained, expeditiously obtain a ticket on a commercial flight to Australia for the applicant or, if no such flight is available or practicable, arrange for the charter of an aircraft or air ambulance to convey the applicant to Australia as soon as reasonably practicable and no later than 5pm AEST on 5 June 2019.

3.    Upon the applicant’s removal from Nauru:

a.    the First Respondent is to use all reasonable endeavours for the applicant’s assessment and admission into a specialist in-patient psychiatric care unit in accordance with the recommendations of Dr Liz Coventry in her report dated 11 February 2019 and confirmed in Dr Coventry’s report dated 1 April 2019, or for such other treatment as agreed between the parties.

b.    the respondents are restrained until further order of the Court, by themselves their servants, officers or agents, from taking, permitting or suffering any step to return the applicant to Nauru.

4.    The respondents are to produce to the applicant’s legal representatives by 6 June 2019 all documents in their possession, custody or control:

a.    recording or constituting consideration by officers of the Commonwealth of whether to give a written guarantee of payment or written acknowledgment to Taiwan Adventist Hospital (TAH) as identified in the email dated 22 May 2019 by Acting Inspector Nait Nachar at Annexure PLT43 at page 18-19 of Mr Timson’s affidavit sworn on 28 May 2019;

b.    recording or constituting the “senior executive level discussions” referred to in the email dated 22 May 2019 by Superintendent Bridget O’Brien at Annexure PLT43 at page 18 of Mr Timson’s affidavit sworn on 28 May 2019;

c.    recording or constituting steps taken by or on behalf of the respondents between 20 May 2019 and 30 May 2019 in compliance with the Taiwan orders;

d.    recording or constituting communications in the period 20 May 2019 to 30 May 2019, which refer to the applicant, between:

i.    officers of the Commonwealth or IHMS; and

ii.     TAH;

e.    recording consideration of how, and whether, to comply with the Taiwan orders.

5.    If the applicant has not been transferred from Nauru prior to 5.00pm AEST on 5 June 2019:

a.    the First Respondent is to file and serve by 12 noon on 6 June 2019 an affidavit setting out the steps taken in accordance with orders 1 to 3, the reason why the transfer has not taken place, and a reasoned estimate of when the applicant will be transferred from Nauru; and

b.    the matter will be listed for further directions before the ____________ at __ am on _____ June 2019 before Justice _____________.

6.    Liberty to restore on short notice.

7.    Costs reserved.

17    The respondents maintained their objections to the Court’s jurisdiction to make coercive orders and otherwise pointed to what remained necessary in light of the developments to which I have referred above.

18    In light of these events I would not make order 1 as sought by the applicant given that I am dealing with what may occur in the next half day. Neither would I make order 2 as those events have in effect occurred. I will come back to order 3.

19    Order 4 is not presently pressed by the applicant.

20    As to order 5, the respondents agreed to file a further affidavit if the applicant remains on Nauru after 5.00pm AEST on 5 June 2019.

21    As to order 3, I propose to order that upon the applicant’s removal from Nauru, the first respondent is to use all reasonable endeavours for the applicant’s psychiatric and other medical assessment, and treatment in accordance with that assessment, or such other treatment as agreed between the parties, such assessment and treatment to include treatment for the applicant’s dental condition.

22    I do not make order 3(b) as I accept the respondents’ submission that there is no immediate threat that if the applicant is transferred from Nauru he will be returned to Nauru.

23    I make orders accordingly.

Associate:

Dated:    30 May 2019