BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs - [2019] FCA 761 - FCA 2019 case summary — Zoe

BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs - [2019] FCA 761 - FCA 2019 case summary — Zoe

ROBERTSON J: 1 These proceedings were commenced on 4 April 2019. An early history of the proceedings and description of their nature may be seen in my earlier decision of 9 April 2019: BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs [2019] FCA 494. 2 As between the parties before me, it has consistently been common ground that in light of his psychiatric illness Nauru is not an appropriate place for the applicant to remain. 3 The difficulty has been that those advising the government of Nauru appear to have taken a different view of the applicant's psychiatric illness. For example, there is a recently expressed opinion that the applicant's psychiatric illness derives from his physical pain. The medical evidence before me does not support that view. 4 Nevertheless those advisers have, through a decision of the Overseas Medical Referral Committee dated 2 May 2019, decided that the applicant needs urgent medical treatment, that treatment to be in Taiwan. The condition is described as "Arthritis TMJ" and the treatment recommended being "Dental". It appears that by reason of this condition the applicant is unable to eat solid food. 5 A further difficulty is that it appears that the medical facilities in Taiwan are unlikely to be appropriate beyond the treatment of the applicant's dental condition. The Taiwan Adventist Hospital (TAH) has suggested it is not capable of treating the applicant's psychiatric condition. 6 A yet further difficulty and ground of urgency is that it now appears that the practices or procedures of the Overseas Medical Referral Committee involve the expiry of any overseas transfer decision after two months. In the present case that would be 2 July 2019. 7 Most recently, on 14 May 2019, the applicant has attempted to take his own life. While on Nauru, he has attempted suicide on a number of earlier occasions. 8 In these circumstances the applicant has today pressed for orders in light of the risk to his life. 9 Nothing turns for present purposes on the precise place at which the applicant is being accommodated on Nauru. I note that he is under 24 hour watch but that in my view is only a minor amelioration of the risk arising from his underlying conditions. 10 The applicant by his counsel proposed the following order, amongst others: 2. 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. 11 I am not presently minded to make orders to take effect once the applicant has left Nauru. It seems to me that those orders would be premature. I take into account the potential unwillingness on the part of the applicant to leave Nauru if he were to be returned to Nauru but in my view that difficulty should be able to be overcome by explaining to the applicant that he is free to renew his application for those orders if and when he has left Nauru. 12 I note finally that the respondents have maintained their submission that this Court does not have jurisdiction but that they accept that in the present circumstances that would not prevent the Court making orders of the type made in R v Ross-Jones; Ex parte Green [1984] HCA 82; 156 CLR 185 at 202. Previously the respondents had submitted that this Court was not required to determine the jurisdictional issue in light of the reserved judgment of the Full Court in four test cases heard earlier this month. 13 For these reasons, I proposed orders: directed to what needs to be done to finalise the position of the TAH to accept the applicant for treatment; directed to what else is necessary to be done to effect the applicant's departure from Nauru to Taiwan; and to make it clear that if the applicant travels to Taiwan he may then approach the Court for any further relief he may then claim. 14 I understand that the respondents contend that proposed order 1 is unnecessary and that proposed order 2 goes too far in light of the respondents' objection to the Court's jurisdiction. I note however that unlike R v Ross-Jones; Ex parte Green, the present case does not involve a third party. I also take the view that in a real sense order 2 seeks to preserve the subject matter of the litigation, that is, the life of the applicant: see Tait v The Queen (1962) 108 CLR 620. 15 I make orders accordingly. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson.