BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs

ROBERTSON J: 1 This urgent interlocutory application which has come before me as Duty Judge seeks orders for the transfer of the applicant from Nauru for the purposes, in particular, of specialist psychiatric care. 2 The form of interlocutory orders sought, as amended, was as follows: 1. As soon as reasonably practicable, the First Respondent is to cause the transfer of the Applicant for 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. In causing the transfer of the applicant from Nauru, and without limiting the generality of this order, the First Respondent: a. must, as soon as reasonably practicable; i. obtain a ticket on a commercial flight for the applicant; and ii. assist the applicant travel to Nauru airport, check in and board the flight; and b. must take these steps whether or not the applicant's transfer has been approved by the Overseas Medical Referral Committee; and c. is not obliged to use force. 1. If the applicant has not been transferred to Australia prior to 5.00pm on Sunday, 14 April 2019: a. the First Respondent is to file and serve by 12 noon on Monday, 15 April 2019 an affidavit setting out the steps taken in accordance with order 1, 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 __ April 2019. 2. Liberty to restore on short notice. 3. Costs reserved. 3 For the purposes of this interlocutory application, no issue was raised by the respondents as to the existence of a prima facie case. Also, by reason of the applicant's claims for urgency, the question of the Court's jurisdiction in light of s 494AB of the Migration Act 1958 (Cth) was not the subject of submissions. 4 The main issues were, first, urgency and, second, the appropriate form of relief in light of the matters deposed to in the affidavit of Ms Vanessa Jane Holben, who was until 7 April 2019 the Assistant Commissioner, Detention and Offshore Operation Command within the Australian Border Force. Her affidavit was affirmed on 8 April 2019. 5 The respondents accepted that medical evacuation should take place but resisted what they referred to as "coercive orders". 6 I find that the applicant has been diagnosed with a major depressive episode. He is suicidal and has attempted suicide on three occasions since 22 February 2019, most recently on 20 March 2019. 7 On the evidence before me, I find that the applicant is in need of urgent medical treatment. I make this finding on the basis of the report of Dr Coventry of 11 February 2019, and her updating report dated 1 April 2019. I also take into account the medical position as set out in a report of Dr Linares, of the Republic of Nauru Hospital, extracted in an email annexed to the second affidavit of Mr Jayasinghe dated 4 April 2019, that is, the applicant's need to be evaluated urgently by a maxillofacial specialist. This relates in particular to the applicant's capacity to eat solid food. 8 This is important and recent medical evidence which, on the material before me, has not yet been considered in the context of the Overseas Medical Referral program run by the Nauru Ministry of Health. 9 As I have said, urgency is established. I also find on the basis of the medical evidence that the treatments the applicant requires are not available on Nauru. 10 I turn to the appropriate form of relief. 11 I do not grant the relief sought by the applicant in the form of the opening words of proposed Order 1 as set out at [2] above. 12 I do not do so because the order there sought is insufficiently certain, and proceeds on the premise, as confirmed by counsel for the applicant and as set out in the proposed order, that regardless of approval by the Overseas Medical Referral committee the Commonwealth should be ordered to obtain a ticket and any necessary travel document so that the applicant can board a plane to go to a place where he may obtain the medical treatment he requires. 13 In terms of appropriate relief, I have regard to the matters deposed to in Ms Holben's affidavit concerning administrative procedures in Nauru and relating to the important working relationships between, on the one hand, officers of the Commonwealth and its contractor International Health and Medical Services and, on the other hand, Nauruan officials. I accept in particular what Ms Holben deposes as to matters of Nauruan sovereignty. 14 I do not accept the applicant's submission that this Court should make orders in effect ignoring the Overseas Medical Referral procedures. I say this even if those requirements of the Nauruan Government are accurately regarded as only procedural, that is, whether or not those requirements have a legal effect by virtue of the Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (Nauru). 15 I regard it as important to respect Nauruan sovereignty. I also regard it as important to frame orders which, first, enable the respondents to know what they must do to comply with them and, second, are likely to have a practical effect. 16 I do not accept the respondents' submission that requiring the respondents to take any steps at all would be to require them to take actions "in the diplomatic sphere" as referred to by Mortimer J in A v Minister for Immigration, Citizenship and Multicultural Affairs [2018] FCA 1343 at [34]. 17 Counsel for the respondents informed me that his instructions were that the next meeting of the Overseas Medical Referral committee is on 18 April 2019, but that he had no instructions on whether the applicant's case would go before that committee at that time. 18 I note that the applicant has proffered through his counsel the usual undertaking as to damages but, given the limited form of orders I propose to make, I do not make the giving of that undertaking a condition of relief. I note also that such an undertaking, on the material before me, would be unlikely to have any real content. 19 Having regard to the matters deposed to by Ms Holben, the appropriate orders are as follows: 1. The respondents take all reasonable steps within their power to have the applicant's case presented to the Overseas Medical Referral committee on 18 April 2019 or, if earlier, out of session, on the basis of an updated assessment, including in particular that the applicant has attempted suicide on three occasions since 22 February 2019, most recently on 20 March 2019, and on the additional basis of the applicant's need to be evaluated urgently by a maxillofacial specialist. 2. The respondents enquire with Nauruan government officials whether uplift approval is available to the applicant, as referred to in the affidavit of Ms Holben affirmed 8 April 2019, in particular at [54] and [59] of that affidavit and, if uplift approval is available, immediately notify the applicant's legal representatives. 3. The matter is stood over for any necessary further interlocutory hearing or case management at 9:30 AM on 26 April 2019 before Justice Robertson. 4. If the applicant has not been transferred from Nauru before close of business on 23 April 2019, the respondents file an affidavit setting out what as at that date the position is in relation to the transfer of the applicant for urgent medical treatment and what steps they have taken to give effect to orders 1 and 2 of these orders. 5. Liberty to apply on 12 hours' notice. 6. Costs reserved. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.