FEDERAL COURT OF AUSTRALIA

CCA19 v Minister for Home Affairs [2019] FCA 939

ORDERS

THE COURT ORDERS THAT:

    As soon as reasonably practicable and within 72 hours the Respondents take the following steps:

(a)    seek, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral Committee

(i)    on the basis of an assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Dudley and Dr Manovel; and

(ii)    on the basis of expanding the approval given to the Applicant on 2 May 2019 to travel to Taiwan so that it also covers travel to Australia.

(b)    make an application to the Nauruan Ministry of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Panel Referral Process dispensed with or to secure uplift approval for the evacuation of the Applicant of the kind referred to at paragraph 13 of the affidavit of Peter Lawrence Timson of 3 June 2019.

    The Applicants’ interlocutory application be adjourned to 9:30am on 18 June 2019.

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 29 year old man originally from Iraq. After having arrived in Australia without a visa in 2013, the applicant was taken against his will to Nauru by the second respondent (“Commonwealth”). On Nauru he was found to be a refugee.

2    By an interlocutory application dated 24 May 2019, the applicant sought urgent interlocutory relief that, broadly speaking, would have the effect of requiring the first respondent (“Minister”) and the Commonwealth to transfer the applicant, together with his uncle, to a place where the applicant can receive urgent medical attention of the kind that medical evidence filed in support of the application states that he requires.

3    The applicant’s interlocutory application came on for an urgent hearing at short notice on 24 May 2019. The application was supported by a substantial affidavit which included various medical reports. The respondents appeared assisted by counsel but due to the short notice of the application, filed no material. No adjournment of the interlocutory application was sought and it was dealt with after relatively short submissions were made on behalf of each of the parties. Orders were made on 24 May 2019 including a non-publication order and the following order (“Order 2”):

2.    The Respondents take all reasonable steps to ensure that the Applicant is transferred, with his uncle, to a location where the Applicant can immediately access urgent and comprehensive psychiatric, psychological and multidisciplinary medical diagnostic assessments, admission at an inpatient psychiatric unit in a tertiary hospital and intensive and extended rehabilitation, in accordance with the recommendations of Dr Michael Dudley in his report dated 1 May 2019 and the recommendations of Dr Alvaro Manovel in his report dated 28 April 2019, or as decided by the treating medical practitioners at that hospital.

4    Short reasons were given on transcript for the making of Order 2. I was satisfied that the applicant had established a prima facie case that the respondents have a duty of care to the applicant to exercise reasonable care to discharge the responsibilities that they have assumed to ensure his health and wellbeing, and, that there is a reasonable apprehension that the respondents will fail to discharge that duty of care in the event that medical services required by the applicant, and not available on Nauru, are not provided to him. I was also satisfied that the balance of convenience strongly favoured the grant of the interlocutory relief sought in circumstances where the medical evidence before me (to which I shall shortly refer), established that the applicant is suffering from life threatening health issues which, in the absence of urgent specialist medical intervention, may result in his imminent death.

5    The relevant principles which I applied in granting the interlocutory injunction are well established. They were summarised by me in BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060 at [6]-[10]. In circumstances not dissimilar to those of the applicant, the Court, on a final basis, has found that the respondents had a duty of care: Plaintiff S99/2016 v Minister for Immigration and Border Protection (2016) 243 FCR 17 (Bromberg J). In similar circumstances to those raised by this proceeding, a duty of care has been found on a prima facie basis to exist. The relevant authorities are D7 v Minister for Immigration and Border Protection (2016) 244 FCR 1 (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); DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050 (Murphy J); BAF18 (Bromberg J); DRB18 v Minister for Home Affairs [2018] FCA 1163 (Bromberg J); EHW18 v Minister for Home Affairs (2018) 262 FCR 27 (Mortimer J); ELF18 v Minister for Home Affairs [2018] FCA 1368 (Mortimer J)).

6    These authorities also address the question of the balance of convenience and provide support for the proposition, on which I relied, that the fact that an applicant’s life is at stake is a dominant consideration which is not easily dislodged in determining where the balance of convenience lies (see in particular EHW18 at [52], Mortimer J).

7    The applicant relied on the medical reports of two doctors in support of his application, Dr Michael Dudley and Dr Alvaro Manovel.

8    Dr Dudley is the Senior Staff Specialist in Psychiatry at the Prince of Wales and formerly at Sydney Children’s Hospitals and the Conjoint Senior Lecturer in Psychiatry at the University of New South Wales. Dr Dudley has a Bachelor of Medicine and Bachelor of Surgery, he is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and has a Diploma of Child Psychiatry. Dr Dudley has 37 years’ experience in the field of psychiatry and chaired Australia’s peak advocacy body for suicide prevention, Suicide Prevention Australia from 2001 to 2015. Dr Dudley became a member of the Order of Australia (AM) in 2011.

9    A fair summary of Dr Dudley’s opinion is set out in an affidavit made by the applicant’s solicitor as follows (emphasis in original):

Dr Michael Dudley

14.    On the basis of Dr Dudley's expert analysis and opinion, he diagnosed the Applicant with Major Depressive Disorder (severe) with psychotic features. In the Applicant's case, he considers that this is characterised by persistent low mood, inability to enjoy anything, problems with energy, concentration, broken sleep, not eating, problems with hopefulness and continuous suicidal ideation. He comments that it is also characterised by agitation and concomitant symptoms of anxiety and, in recent times, psychotic features of auditory hallucinations, indicating a worsening in severity.

15.    Dr Dudley commented that the Applicant has self-harmed by overdose and ingestion of cleaning fluid several times both as an acute suicide method and as a cumulative poison. Dr Dudley assessed the Applicant's potential for suicidal actions as “very high”, saying that the Applicant's “current frame of mind and his previous unsuccessful but injurious suicide attempts make it more likely that he will increase his efforts to injury [sic] himself using more lethal methods.”

16.    Dr Dudley concluded that the Applicant's:

“…complex dangerous case requires urgent physical as well as psychiatric review, and this needs to be undertaken in a tertiary facility with the requisite specialty services in a single location, that can provide a seamless treatment and recovery program.”

17.    Dr Dudley opined that, as at 1 May 2019, the Applicant needed immediate inpatient psychiatric assessment and treatment in a tertiary hospital, and that the possible outcomes of this treatment being delayed were:

“Death from suicide or from medical causes (e.g. heart attack); further disability.”

10    Dr Dudley also made a strong recommendation that the applicant remain with his uncle. He said:

In addition, [the applicant’s] uncle … is a key attachment figure and a powerful source of help. The applicant states it is very important to him that they are together. He would prefer to stay in Nauru and die rather than leave his uncle. From the information available, it is plainly clear that the two men are essential to each other's survival – their solidarity has been essential to keeping them both alive. I completely concur with this recommendation.

11    Dr Alvaro Manovel is an Emergency Physician. Dr Manovel has a Bachelor of Medicine and Bachelor of Surgery. Dr Manovel has worked in the area of emergency medicine since 1994.

12    A fair summary of Dr Manovel’s opinion is also included in the affidavit of the applicant’s solicitor (emphasis in original):

Dr Alvaro Manovel

18.    Dr Manovel commented in his report that the Applicant is suffering from “major life threatening” mental health problems and:

“has displayed persistent and pervasive features of most criteria for major depression defined by DSM-5 . . . including: Depressed mood most of the day, nearly every day. Markedly diminished interest/pleasure in almost all activities most of the day, nearly every day. Slowing of thought and a reduction of physical movement observable by others. Fatigue or loss of energy nearly every day. Diminished ability to think or concentrate, or indecisiveness, nearly every day. Recurrent thoughts of death, recurrent suicidal ideation or a suicide attempt or a specific plan.”

19.    Dr Manovel further commented that:

“All therapeutic options on Nauru have been exhausted” and that “given his degree of suicidal risk ... inpatient admission is almost certainly required.”

20.    Dr Manovel states that he is concerned that, without urgent mental health intervention, the Applicant's weight loss will progress to becoming hazardous, placing him at risk of refeeding syndrome, which is a highly specialised field with risk of life-threatening complications and which requires specialist care.

21.    Dr Manovel also stated that he had concerns regarding the Applicant's:

(a)    protracted back pain, for which he recommended that the Applicant undergo a CT of his spine and abdomen;

(b)    prolonged coughing illness whilst in detention, for which he recommended that the Applicant undergo a chest x-ray to rule out any features of tuberculosis; and

(c)    recent complaints of numbness, paraesthesia, and weakness in the context of malnutrition, which he commented are worrying for the risk of nutritional deficiency such as thiamine deficiency and neuropathy.

22.    Dr Manovel stated that, as at 28 April 2019, the principal immediate threats to the Applicant's life are suicide due to his escalating risk profile, and malnutrition if he has resumed a falling weight trajectory since the last record of his weight of 61 kg on discharge from the RPC medical centre on 25 February 2019.

23.    Dr Manovel stated that his view is that the Applicant requires prolonged inpatient mental health care, and that the possible outcomes of this treatment being delayed or not provided at all were:

“... acute risk of death and illness ... high risk of chronic mental health illness, dental illness, chronic pain, and sequelae of malnutrition.”

24.    Dr Manovel concluded that “All these [outcomes] can be minimised or even averted with prompt adequate care.”

13    The following observations of Dr Manovel are also significant:

I would also comment that the idea that suicide can be prevented by close supervision (‘suicide watch’) is poorly informed. Persons determined to harm themselves will do so despite any imposed barriers. The hospital I work in has the largest mental health facility in NSW and the only mental health intensive care unit in the state. It is also the referral centre for all prisoners housed at Long Bay Correctional Centre that holds the majority of prisoners in NSW with major mental illness and behavioural disturbance. Both the correctional centre and our mental health centre have tremendous expertise in managing seriously disturbed persons at risk of self-harm.

Despite being resource rich and able to provide one on one 24hr supervision, individuals still succeed in both self-harm and suicide in these environments. The successful prevention of suicide revolves around addressing the motivation for suicide, not preventing the act itself. This is why in [the applicant’s] case removing him from Nauru is critical, other than the evident ongoing harm to his health.

14    The jurisdiction of the Court was also raised in submissions made on 24 May 2019. The respondents drew the Court’s attention to s 494AB of the Migration Act 1958 (Cth) but did not dispute that the Court has jurisdiction to determine its own jurisdiction and that, in doing so, it may issue orders to preserve the subject matter of the proceeding. The interlocutory relief granted on 24 May 2019, was granted pending resolution of the jurisdictional question. As was stated in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202 (Gibbs CJ, Mason J agreeing) and 213 (Wilson and Dawson JJ), whilst the Court is resolving the jurisdictional issue before it, it may make interim orders.

15    As contended by the applicant, the principle in Ross-Jones was stated in terms of issuing orders to preserve the status quo. That, however, is one reason for the issue of interim relief but there are others, including to prevent the frustration of the Court’s processes (Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [35] (Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ); AWB Ltd v Honourable Terence Rhoderic Hudson Cole (No 4) [2006] FCA 1050 at [7] (Young J) and to preserve the subject matter of the proceeding (Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [10] (Gleeson CJ); Romaldi Constructions Pty Ltd v Adelaide Interior Linings Pty Ltd (No 2) [2013] SASCFC 124 at [65] (Blue J, Sulan and Stanley JJ in agreement).

16    I was satisfied that, in the present case, Order 2 was necessary to preserve the status quo, namely the life of the applicant, and to prevent the frustration of the Court’s processes as well as to preserve the subject matter of the proceeding. Other judges of this Court have made interlocutory orders in similar circumstances: BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 761 at [12] (Robertson J); CDO19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 890 at [12]-[16] (Flick J).

17    In accordance with the orders I made on 24 May 2019, the applicant’s application for interlocutory relief was further heard on 28 May 2019. No application was made by the respondents seeking to discharge the orders previously made, but the respondents sought to put material before the Court for the purpose of informing the Court of various arrangements on Nauru and circumstances relating to the applicant, including in relation to steps necessary to be taken to effectuate his removal from Nauru. Those matters were initially detailed in an affidavit of Peter Lawrence Timson of 28 May 2019. Mr Timson is employed as the Acting Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force (“ABF”). Mr Timson deposed that he reports to the Deputy Commissioner Operations, who reports to the Commissioner of the ABF. Mr Timson is responsible for the onshore immigration detention network, regional processing, resettlement and return and offshore operations.

18    Mr Timson gave a brief description of the regional processing arrangements between Australia and the Government of Nauru. He deposed that on 3 August 2013, Australia and Nauru entered into a Memorandum of Understanding (“MOU”) relating to the transfer to and assessment of persons in Nauru and related issues. In support of the MOU, on 11 April 2014 Australia and Nauru entered into various administrative arrangements under a document entitled “Administrative Arrangements for Regional Processing and Settlement Arrangements in Nauru” (“Administrative Arrangements”).

19    Mr Timson deposed that pursuant to the MOU and the Administrative Arrangements a regional processing centre was established on Nauru. Within the Government of Nauru, the Department of Multicultural Affairs is responsible for the implementation of the MOU and the Administrative Arrangements, Mr Timson deposed that the senior official therein is the Secretary of Multicultural Affairs.

20    To facilitate regional processing pursuant to the MOU and the Administrative Arrangements, the ABF maintains a presence on Nauru. The most senior ABF officer on Nauru is a person holding the title of Programme Coordinator.

21    Mr Timson then deposed as to various health services available to maritime arrivals transferred by Australia to Nauru for regional processing. He deposed that such persons (“transferees”) have available to them primary and mental health care provided by the International Health and Medical Services (“IHMS”) under an agreement made between IHMS and the Commonwealth.

22    Mr Timson also relevantly referred to the Overseas Medical Referral (“OMR”) Programme administered by a Committee (“OMR Committee”). He deposed that members of the Nauruan community sometimes required medical services that are not available in Nauru and that to provide for medical transfers of such persons, the Nauru Ministry of Health runs the OMR Programme. Under that program members of the Nauruan community can apply to receive treatment overseas. The OMR Committee meets to consider applications for medical transfers.

23    Mr Timson stated that he had been informed by IHMS, that on 16 May 2019, IHMS had indicated to the OMR Committee the applicant’s ongoing psychiatric issues, as set out in the reports of Dr Dudley and Dr Manovel provided by the applicant’s lawyers, including their recommendation that the applicant requires impatient treatment in Australia. He deposed that he was informed by IHMS that the OMR Committee had indicated that a third party review of the applicant by Dr Smith of the Republic of Nauru Hospital was required in order for the applicant’s case to be considered at, what was then, the next meeting of the OMR on 30 May 2019.

24    Mr Timson stated that the orders made by the Court on 24 May 2019 had been communicated to the ABF and that on 25 May 2019 he formally approved the temporary medical transfer of the applicant to Australia for medical treatment. He deposed, however, that until the outcome of the OMR Committee is known, there was little utility in putting in place arrangements for the transfer of the applicant to Australia “given that the approval of the OMR Committee is required before the Government of Nauru can approve the transfer”.

25    I should interpose from the content of that affidavit to say that on the basis of what has been put to the Court by the representatives of the parties, an approval was given by the OMR Committee on 2 May 2019 for the applicant to travel to Taiwan for the purpose of receiving medical treatment.

26    I return to Mr Timson’s affidavit as to the then condition of the applicant. Mr Timson deposed on the basis of information provided by IHMS, that its mental health outreach team had visited the applicant on 24 May 2019 at his home. They found no evidence of recent self-harm or that the applicant was in possession of any harmful chemicals such as petrol. The applicant was reported not to have expressed any plans for self-harm or suicide, although he reported fleeting thoughts of death related to what he perceived as significant physical disabilities. Mr Timson was informed by IHMS that the applicant would be reviewed daily by the outreach team for the purpose of ongoing checks.

27    There are other matters dealt with in that affidavit to which I will return.

28    At the hearing of the applicant’s interlocutory application on 28 May 2019, and in light of the prospect of a decision by the OMR Committee on 30 May 2019, the applicant’s interlocutory application was further adjourned to 3 June 2019.

29    A further affidavit of Mr Timson made on 3 June 2019 was relied on by the respondents at that further hearing. In that affidavit, Mr Timson reported that at its meeting of 30 May 2019, the OMR Committee determined that the applicant’s case was to be reviewed by Dr Smith. Mr Timson deposed of his understanding that the OMR Committee, having decided to refer the applicant’s case to Dr Smith, will not approve the applicant’s transfer until that review is completed. He deposed that the next OMR Committee was scheduled for 13 June 2019.

30    Mr Timson also deposed that he had made enquires as to the ability to expedite Dr Smith’s review but was informed by Department of Home Affairs (“Department”) officials that such expedition had been sought in the past without any positive results.

31    He further deposed that the Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (Nauru) regulating the processing of the OMR Programme provide for the OMR Committee to convene an urgent meeting if it is medically required. Separate from the OMR process, an emergency medevac can be initiated if supported by an IHMS medical report as being necessary given the person’s health. When an emergency medevac is sought by IHMS, Mr Timson stated his understanding that the Government of Nauru must still give uplift approval. That uplift approval, as Mr Timson deposed, is sought by the Department liaising with the Nauruan Secretary for Multicultural Affairs.

32    Mr Timson further deposed that he had not specifically requested IHMS to consider an emergency medevac of the applicant and was not aware of any such request having been made. He stated however that he understood that IHMS would only seek an emergency medevac for medical emergencies that it assessed could not be handled on Nauru.

33    Mr Timson further reported on the then current condition of the applicant. He stated that on 25 May 2019 the applicant was again seen by the Outreach Medical Health team and that the applicant had denied suicidal ideation. He further deposed as to the applicant missing a scheduled appointment with a psychiatrist and declining admission offered to him to various available clinics. On 31 May 2019 the applicant had an outreach visit from the IHMS Outreach Mental Health team. The assessment by IHMS was that the applicant’s overall condition was unchanged and his risk of self-harm was moderate. The applicant was then again seen on 1 June 2019. He declined any engagement other than asking for his medication.

34    Lastly, Mr Timson stated that a follow up had been sent to IHMS in relation to the progress of Dr Smith. No information as to that was provided by Mr Timson.

35    At the hearing on 3 June 2019, I ordered that by 6 June 2019 the respondents file and serve a further affidavit setting out what steps they had taken since 3 June 2019 towards compliance with Order 2. I further listed the interlocutory application for 7 June 2019.

36    Mr Timson made a further affidavit of 6 June 2019. In that affidavit he deposed that on 5 June 2019, IHMS had reported an incident which occurred on 5 June 2019 in which the applicant had taken double the prescribed dose of his medication and had also stated that, as his medication does not work, he drinks Ajax cleaning product. IHMS then informed a Dr Andrew of the medication overdose and removed two days’ supply of prescribed medication to prevent further overdose. IHMS have advised that it will continue daily visits and change the applicant’s medication to a daily drop off.

37    The affidavit also deals with a request made by the ABF to IHMS asking for IHMS to respond to the following questions:

1    whether the applicant’s current medical needs can continue to be managed on Nauru;

2    whether there is a need for an urgent medical evacuation for the applicant;

3    if not, but should the need arise, whether IHMS would follow the usual process with regards to medical evacuation; and

4    if IHMS do not consider that an emergency evacuation is required, can it indicate the reasons why it does not believe it is required.

38    The email communications attached to Mr Timson’s affidavit suggest some ambiguity or confusion and do not demonstrate that each of the questions posed to IHMS have been answered in terms. However, the correspondence included IHMS notes of the consultation with the applicant on 5 June 2019. Those notes referred to the applicant informing staff that he would drink Ajax solution if he does not get adequate medication. Under a heading “Assessment”, the notes state “Risk to Self-Moderate-Consumed two days’ worth medication in front of staff and made threats to consume Ajax solution if he does not receive adequate medication”.

39    The email communications also contain a communication from a “Co-ordinating Registered Nurse” with IHMS dated 6 June 2019 and directed to the Department. Relevantly, the communication states that the applicant:

has chronic stress and depressive symptoms as a result of his undesirable circumstances on Nauru including residence in a highly undesirable location (Nauru), uncertain immigration status and uncertain future. His symptoms will not resolve while he remains in these circumstances on Nauru. Were [the applicant] to be transferred to Australia (a desirable location) and given clarity regarding his immigration status, his mental state would improve. However, IHMS believes that the mental health treatment he would receive in Australia would not essentially differ from that available on Nauru – so there is no clear indication that [the applicant] requires urgent transfer for treatment unavailable on Nauru although [the applicant’s] mental state would certainly benefit from transfer to Australia (as indicated).

40    In his affidavit of 6 June 2019, Mr Timson has construed that statement as including an indication that “based on his present condition there was no clear indication [the applicant] required urgent transfer to Australia for treatment unavailable on Nauru”. However, as I pointed out at the hearing on 7 June 2019, the communication is open to be construed quite differently. In my view, what is here being said is that although IHMS believes that there is medical health treatment available in Nauru that is not essentially different from that available in Australia, the provision of that treatment in Nauru, as distinct from its provision in Australia, will not resolve the applicant’s symptoms. On that basis, it may readily be concluded that IHMS is of the view that the treatment that the applicant requires is unavailable on Nauru.

41    Finally, in that affidavit, Mr Timson stated:

19.    There have not been communications between the Australian Government and Nauruan Government regarding this matter:

20.    The reason for this is that there is a well-established process for medical transfers from Nauru to Australia, and the Offshore Operations Coordination Branch has actively been engaging with IHMS about the case of the applicant. In particular the branch put in place additional measures, in conjunction with the Health Liaison Officer in Nauru, for Dr Smith from RoN Hospital to conduct a further assessment of the applicant on 5 June 2019.

42    At the hearing of 7 June 2019 and in circumstances where the OMR Committee was scheduled to meet today, I adjourned the hearing to today’s date.

43    Prior to today’s hearing, several further affidavits were filed by the respondents. Mr Timson filed an affidavit made on 12 June 2019. He there refers to various communications with IHMS, in particular, to the email correspondence from the same IHMS registered nurse to whom I have already referred which essentially repeats the communication from that registered nurse which I have already quoted. At paragraph 12 of that affidavit Mr Timson states that “unless IHMS provides a report to the effect that an emergency evacuation of the applicant is required, the respondents would not be in a position to take the necessary steps to facilitate an emergency evacuation of the applicant to Australia.”

44    However, as earlier referred to, the communication from IHMS sets out what appears to be its criteria for approving the urgent transfer for treatment of a transitory person. I do not consider on the basis of the observations made in that email by the relevant IHMS registered nurse, that the approval of IHMS for an urgent transfer of the applicant should be regarded as any real impediment to such a transfer occurring.

45    Mr Timson also deposed to some efforts having been made to have Dr Smith submit his pending report to the OMR Committee. As at the time of the making of his affidavit, no report had been submitted by Dr Smith despite the OMR Committee having adjourned to today for the very purpose of receiving his report.

46    During the course of today’s hearing, which commenced at about 2pm, the Court was told that no written report had been prepared by Dr Smith but that, instead, the OMR Committee would meet and receive an oral report from Dr Smith. That information was conveyed at a time when the Court was told that the OMR Committee was in session considering or about to consider the applicant’s circumstances. I adjourned the hearing to 5pm. At 3.15pm the Court was informed by the representatives of the respondents that Dr Smith did not show up to the OMR Committee’s meeting and as a result, the decision of the OMR Committee with regards to the applicant’s transfer to Australia had not been made. The Court was also informed that the OMR Committee would reconvene on Monday 17 June 2019 to consider the applicant’s case and that the OMR Committee would make a decision on the applicant’s case regardless of whether or not Dr Smith furnishes a report in the meantime.

47    One other circumstance which, on the basis of the opinions of Dr Dudley and Manovel, I regard as alarming, is worthy of note. It is set out in Mr Timson’s affidavit of 12 June 2019 where Mr Timson exhibits a report of an IHMS consultation with the applicant at the applicant’s home. It is clear from the report that IHMS observed several bottles of Ajax fluid at the applicant’s residence. Further, that the applicant referred to the Ajax fluid as his medicine but was unable to elaborate on how he believed that helped him and was ambivalent as to the impact of it on his health. The report also refers to the applicant feeling a burning sensation all over his body. The report states that the “floor was littered with empty water bottles, medication packaging, several Ajax bottles”, that there was an Ajax bottle at the applicant’s bedside table and that the applicant had his head down, making no eye contact. He was very quietly spoken and was reluctant to engage with staff other than a few words. His mood was “low, hopeless, tired, withdrawn, self-isolative”. The report notes the applicant’s thoughts of wanting to die and the applicant saying that he wants to die.

48    It is in these circumstances that the applicant seeks that the Court make further orders. Those orders are said to be required to give specific content to the steps which Order 2 required the respondents to take.

49    In support of the orders it now seeks, the applicant relied upon the approach taken by Flick J in CDO19 at [25]-[27]. At [26] his Honour noted that in the face of attempts by the Commonwealth and the Minister to secure the transfer of the transitory person there in question from Nauru for medical treatment in Australia, an impasse had been experienced. The impasse involved what his Honour described as administrative steps and concerned the OMR Committee’s processes and requirements. At [26]-[27], Flick J said this:

26.    One further cause for reservation should be expressly addressed.  The evidence presently relied upon by the Respondents establishes a concerted effort already being undertaken by officers of the Minister’s Department to secure the return of the Applicant to Australia.  Those administrative steps include compliance with the Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (Nauru), assuming those Regulations are presently in force.  Those Regulations involve (inter alia) the assessment in Nauru of a person’s medical health by an Overseas Medical Referral Committee (“OMR Committee”).   The impasse seems to be that the medical assessments being undertaken on behalf of the OMR Committee, and the advice that it is being given, is that the Applicant can be adequately treated in Nauru.  The review being undertaken by the authorities in Nauru is ongoing.  The assessments made by Drs Shek and Sullivan, of course, is to the contrary to the OMR Committee’s own medical assessments.  What more, contends Counsel on behalf of the Respondents, can be done other than to repeatedly press those in Nauru to allow the Applicant to leave.

27.    The impasse, with respect, is not adequately answered by not making any order.  The impasse is to be met by trying to give specific content to the steps which the Respondents should undertake to give effect to the order to be made.  

50    That determination was made on the basis of the following observations made by Flick J at [25]:

Potential administrative difficulties which may be faced by the Respondents in securing his removal are not sufficient to occasion the refusal of relief.  As noted by Mortimer J in EUB18 v Minister for Home Affairs [2018] FCA 1432:

[35]    On the evidence — or at least on the instructions conveyed to the Court by the respondents’ legal representatives — the position of the government of Nauru remains one that is capable of interfering with the respondents being able to carry out the orders of this Court. That, however, is a matter for the government of Nauru and, if at all, for a political resolution as between it and the Commonwealth of Australia.

[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.

51    The orders made by Flick J required:

As soon as reasonably practicable and within 72 hours the Respondents shall take all reasonable steps to cause the transfer of the Applicant from Nauru to a location in Australia where the Applicant can receive access to treatment as an inpatient at an Australian tertiary hospital, if clinically indicated with access to an accredited interpreter as required during the course of treatment, with such steps including but not limited to the following:

(a)    seeking, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral Committee on the basis of an updated assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Shek (of 21 February 2019 and 17 April 2019) and the report of Dr Sullivan (dated 19 March 2019), including (without limitation) by engaging with medical specialists at the Republic of Nauru Hospital as appropriate; and

(b)    making an application to the Nauruan Ministry of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Referral Process dispensed with or to secure uplift approval as referred to in the affidavit of Mr Timson sworn on 11 June 2019. 

52    The orders now sought by the applicant are – at least as to one part – the same or to the same effect as those granted by Flick J on 12 June 2019. The orders sought are as follows:

1.    As soon as reasonably practicable and within 72 hours the Respondents take the following steps:

(a)    Seeking, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the overseas medical Referral Committee:

(i)    on the basis of an updated assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Dudley and Dr Manovel; and

(ii)    on the basis of expanding his existing approval to travel to Taiwan so that it covers travel to Australia.

(b)    Making an application to the Nauruan Minister of Health and / or the Nauruan Ministry of Multicultural Affairs to have the overseas Medical Panel Referral Process dispensed with or to secure uplift approval for the evacuation of the Applicant.

53    Order 2 required the respondents to “take all reasonable steps to ensure that the applicant is transferred, with his uncle” to a location where he can access medical services there detailed. As of today, that transfer has not occurred and the respondent’s position is essentially that they have taken all reasonable steps to effectuate the transfer. The respondent’s case is that whether the transfer can be effectuated is dependent upon the approval of the OMR Committee and/or an uplift approval from the Nauruan Secretary of Multicultural Affairs.

54    Whether or not the respondents have taken all reasonable steps to ensure the transfer is clearly in contest. That contest is difficult to resolve in the context of an urgent applicant such as this and where interlocutory orders intended to provide urgent relief to the applicant have been made. It is not a contest that the Court can sensibly resolve today, even on a prima facie basis. Whether or not the respondents have taken all reasonable steps depends on what reasonable steps were available to be taken. That question has to be considered and resolved by reference to the relevant contextual circumstances.

55    In that regard, I should return to Mr Timson’s affidavit of 28 May 2019 in which other relevant context is given upon which the respondents rely. I have referred already to the MOU and the Administrative Arrangements and also to the OMR Programme and the process of the OMR Committee as well as to what Mr Timson deposes to be the uplift approval for a transfer required to be given by the Nauruan Secretary of Multicultural Affairs.

56    Mr Timson also deposed that the Australian Government is not involved in the OMR Approval Process which he described, but that it does do various things to facilitate medical transfers of refugees. That facilitation includes arranging treatment overseas, arranging flights and accommodation, arranging travel documentation and paying all costs associated. Mr Timson deposed that medical transfers can be accomplished either by commercial flight or air ambulance. Charter flights used when an air ambulance is required, require, like all aircraft, permission to land in Nauru.

57    Mr Timson stated that during the period in which the OMR process has applied to refugees, the Government of Nauru has expressed the view that refugees should be treated similarly to Nauruan citizens and that the Australian Government must respect Nauruan sovereignty in that regard. He deposed, without specifying the details, that Government of Nauru officials including the Secretary of Multicultural Affairs have expressed concern and frustration in relation to litigation in Australia that “results in pressure being brought to bear upon the Government of Nauru to allow its processes and procedures to be subverted; and in the view of the Government of Nauru, is harmful to the Nauruan community, including refugees who are a part of that community”.

58    Mr Timson deposed that such concerns have been expressed with increasing frequency in the latter half of 2018, during a period in which there were escalating numbers of requests to the Minister for medical transfer to Australia. Many of such requests having followed the institution of proceedings in this Court and the making of orders requiring medical transfer. Mr Timson states that, in that context, the Government of Nauru has on numerous occasions emphasised “that the Australian Government and Australian Courts should respect Nauruan sovereignty”. Mr Timson then gave a number of examples of occasions where he states the Nauruan Government exerted its sovereignty by enforcing its existing policies and procedures more stringently or by imposing additional requirements. The examples given, the detail of which I need not address at present, are said by Mr Timson to be part of an overall trend “whereby the imposition and enforcement of procedural requirements was making it increasingly difficult and time-consuming for the ABF to achieve its objectives in relation to medical transfers”. Furthermore, Mr Timson stated his view that the examples illustrated that the Government of Nauru was enforcing its procedural requirements regardless of the means by which the ABF proposed to effect the medical transfer (whether by commercial or air ambulance), and notwithstanding any injunctions issued by this Court.

59    Mr Timson opined that it is essential that Australia retains and builds upon what he described as its strong working relationship with Nauruan officials. In his opinion, that required Australia to demonstrate respect for Nauruan sovereignty in its dealings with Nauruan officials including by the Australian Government respecting the procedural requirements imposed by the Government of Nauru and by Australian courts “not making orders that appear to be premised on the notion that the Australian Government controls what happens on the ground in Nauru”.

60    Two further affidavits have been filed by the respondents. An affidavit of Marc Ablong who is employed as the Deputy Secretary Policy of the Department and also an affidavit of Alana Sullivan who is employed as the Senior Assistant Secretary, Regional Processing and Resettlement Task Force within the Department. I do not go to the detail of those affidavits but, in essence, both Mr Ablong and Ms Sullivan express opinions consistent with and supportive of the concerns and opinions expressed by Mr Timson to which I have already referred. The respondent relied on that material, and did so in particular, to resist proposed order 1(b).

61    There are, in my view, two answers to that resistance. The first is that given by Mortimer J at [36] of her Honour’s decision in EUB18 which Flick J endorsed at [25]-[27] of CDO19. As Mortimer Js observations (at [36]) essentially suggest, the Commonwealth has created the situation in which it now finds itself in and has to bear the inevitable risk that the situation created by it may run up against decisions made by another sovereign State. Risks of that kind should not, on an urgent application such as this, ordinarily stand in the way of orders being made to preserve the life and wellbeing of an applicant.

62    However, the second answer to the respondents’ resistance, and the answer which I regard to be sufficient for present purposes, is that the orders now sought to effectuate the transfer of the applicant have not, on the material before me, been shown to be inconsistent with the applicable processes in Nauru. In particular and in relation to proposed order 1(b), I refer to the observations of Mr Timson to which I earlier referred made by him at [13] of his affidavit of 3 June 2019:

Separate from the OMR process, an emergency medevac can be initiated if supported by an IHMS medical report as being necessary given the person’s health. Where an emergency medevac is sought by IHMS, the Government of Nauru must still give uplift approval. That uplift approval is sought by the Department liaising with the Nauruan Secretary for Multicultural Affairs.

63    I note also that the manner in which events have transpired suggests a fair degree of malleability in the processes applied in Nauru.

64    For all of those reasons, I consider that orders substantially in the form proposed by the applicant should be made.

65    Lastly, just prior to delivering these reasons and at about 7pm this evening, counsel for the respondents sought to raise for the first time an argument that the orders proposed by the applicant, if made, would require the Executive to conduct itself in a particular way with a foreign nation. A submission was made formally, without the respondents pressing that it be determined now, that orders in the form proposed are beyond the jurisdiction of the Court to make.

66    I record that the respondents have reserved their position in relation to that contention. Nevertheless, given that it raises the Court’s jurisdiction, I proceed to make the orders that I will make on the same basis as that earlier indicated in relation to the jurisdictional challenge raised by the respondents under s 494AB of the Migration Act. On the basis of the principles earlier outlined at [14]-[15], I will make orders for interlocutory relief pending the resolution of the further jurisdictional question now raised.

67    The orders that I now make are intended to supplement, but not supplant, the orders made on 24 May 2019. The Court makes the following orders:

(1)    As soon as reasonably practicable, and within 72 hours, the respondents take the following steps:

(a)    Seek, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral committee:

(i)    on the basis of an assessment which draws to the committee’s attention the conclusions and recommendations in the reports of Dr Dudley and Dr Manovel; and

(ii)    on the basis of expanding the approval given to the Applicant on 2 May 2019 to travel to Taiwan so that it also covers travel to Australia.

(b)    Make an application to the Nauruan Minister of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Panel Referral Process dispensed with or to secure uplift approval for the evacuation of the Applicant of the kind referred to at paragraph 13 of the affidavit of Peter Lawrence Timson of 3 June 2019.

(2)    The Applicant’s interlocutory application be adjourned to 9.30am on 18 June 2019.

Associate:

Dated:    18 June 2019