D7 v Minister for Immigration and Border Protection

1. The Respondents use their best endeavours to ensure that the Applicant remains in Papua New Guinea.
2. Order 1 expires on 18 November 2016 at 4.15pm.
3. Stand the matter over for further directions before the Duty Judge at 9.30am on 8 November 2016.
4. These orders be entered forthwith. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 The matter came on urgently before me as Duty Judge shortly before lunch on Friday. The applicant was represented by Mr George Newhouse, solicitor. The three respondents, who are the Minister for Immigration and Border Protection, the Commonwealth of Australia and the Secretary of the Department of Immigration and Border Protection, had not been served with formal process but were represented nevertheless by Mr Andras Markus of the Australian Government Solicitor. The applicant sought an injunction to prevent the Commonwealth placing her aboard a plane in Papua New Guinea and removing her to Nauru. 2 The material before the Court was sketchy. By the end of the hearing, the following appeared to be the case. The applicant ordinarily resides in Nauru, where she resides under a refugee visa issued by the government of Nauru. It did not appear to be in dispute, at least for the purposes of Friday's application, that she resided in Nauru as a result of the operation of what I will loosely call the Commonwealth's offshore processing arrangements. 3 The applicant has a medical condition, relating to her gall bladder, which the Commonwealth appears to have accepted could not be adequately treated on Nauru. The Commonwealth made arrangements for her to be transferred to Port Moresby in Papua New Guinea for medical treatment for her condition. This occurred on 23 September 2016. She was granted a 60 day visa by the Papua New Guinean authorities, which I was informed would expire on 22 November 2016. 4 The applicant underwent gall bladder surgery at the Pacific International Hospital on 20 October 2016, and was discharged on 24 October 2016. The applicant says, however, that she is also suffering from a stomach hernia and uterine fibroids. She wishes to have these treated in Papua New Guinea not Nauru. There was no direct evidence before me about her condition, but I am willing to accept that there is an arguable case that she has uterine fibroids and a stomach hernia. In that regard, it might be noted that the Commonwealth has very recently been requested to produce her medical records, but has not yet been able to do so. 5 It seems to me that it is arguable that the medical facilities in Nauru are not sufficient to deal with uterine fibroids or stomach hernias. I draw this conclusion because the medical facilities in Nauru appear to be insufficient to deal with gall bladder conditions. 6 I therefore consider there to be a serious case to be tried that the applicant cannot obtain the medical treatment she requires on Nauru. Because it is the Commonwealth who is currently facilitating the applicant's medical treatment, there is an arguable case that it owes her a duty of care in relation to that treatment. Support for that proposition in relation to persons subject to Australia's offshore processing arrangements involving Nauru may arguably be found in this Court's judgment in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 at [243]-[278] per Bromberg J. Where, in fact, the proper discharge of the duty identified by Bromberg J requires the applicant to be treated is a matter for trial, but it suffices to observe, as I already have, that there is an arguable case that the duty could not be discharged by treatment in Nauru. 7 Mr Newhouse has been seeking access to the applicant's medical records since 25 October 2016, I infer with a view to making some kind of application. However, before he could do so, on the morning of Friday, 4 November 2016, the applicant received word that she would be 'forcibly returned' from Papua New Guinea to Nauru. It was that occurrence which gave rise to the present application. Once the matter was before the Court, just before lunch on Friday, the situation seemed to be that the Commonwealth had chartered a flight to carry the applicant and seven other persons who had received medical treatment in Papua New Guinea back to Nauru. It appeared the plane would depart at 5pm (Port Moresby time). 8 Mr Newhouse sought an injunction restraining the Commonwealth from removing the applicant from Papua New Guinea. However, Mr Markus contended, and I am inclined to accept, that the Commonwealth would not literally be forcing the applicant onto a plane, since it has no jurisdiction to do so in Papua New Guinea. It seems to me much more likely that any physical compulsion of the applicant would be at the hands of officials of the Papua New Guinean government. On the other hand, since the Commonwealth was able to procure the applicant's admission into Papua New Guinea for medical treatment in the first place, I think it more likely than not that if it desires her to remain there, that she will. 9 Subject to one remaining matter, I therefore considered it appropriate to order the respondents to use their best endeavours to ensure that the applicant is kept in Papua New Guinea, to preserve the status quo pending a trial. I do not think it appropriate to order them not to remove the applicant from Papua New Guinea, because it does not seem to me likely that the Commonwealth would seek to use coercive power in a foreign state. 10 The one matter which should be mentioned is that I considered an argument that if the applicant's condition is such that she needs to be treated in Papua New Guinea, she can always be taken back there even after she has been returned to Nauru. On this view, an injunction was unnecessary. However, the Commonwealth does not accept that it would necessarily owe the applicant the same duty of care in Nauru as it presently owes her in Papua New Guinea or, to put it another way, that it will continue to do so. If it be the case, as it appears it may be, that the legal obligation of the Commonwealth to look after the applicant's medical condition may expire upon her return to Nauru, then this provides - at least for the purposes of an interlocutory injunction - a good reason not to regard the injunction as unnecessary. 11 It was for these reasons that I made the above orders. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.