Evidence
11 The applicant moves on the affidavit of Ms Anna Camille Talbot, solicitor, affirmed 14 June 2018.
12 The respondents rely on an affidavit made by Ms Vanessa Jane Holben, Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force which is part of the Department of Home Affairs, affirmed today, 15 June 2018.
13 From that affidavit it appears that an IHMS psychologist has examined the applicant and said that the applicant would require referral to a psychologist. On 30 May 2018, IHMS recommended that the applicant be transferred to Australia or a third country for family planning and counselling with potential medical/surgical intervention, noting that the treatment required was not available on Nauru. The treatment required was a termination of the applicant's pregnancy, on the ground that such treatment would be detrimental to the applicant's mental health.
14 That affidavit also refers to various medical observations of an IHMS obstetrician and an IHMS psychiatrist. The obstetrician records that the applicant has FGM Type 3 with signs of de-infibulation. The same note states that the applicant is not interested in having the termination of pregnancy in Taiwan and that she refused to sign the consent form for the Taiwan Adventist Hospital. The affidavit also contains some further medical material from another medical practitioner of IHMS to the effect that the applicant has FGM Type 3 with de-infibulation and that there was "adequate vaginal outlet". I find that this does not relevantly qualify the evidence of Professor Newman, to which I refer in more detail later.
15 I also find, for the purposes of this application, that for a woman at the late stage of the first trimester, surgical treatment to terminate a pregnancy is most appropriate. Also, as time goes on, terminations become increasingly complex and dangerous and any termination should take place by 14 weeks at the latest.
16 It was common ground before me that the assessment and related treatment needed to commence no later than 22 June 2018, a week from today.
17 The respondents did not contend that there was any issue of transport logistics standing in the way of that timetable. This appeared to be common ground.
18 The applicant also has a history of mental illness, her medical records disclosing a number of suicide attempts in 2014 and a recent decline in her mental health. She has been diagnosed with dysthymia and a depressed mood in the last six months. She has told her solicitor that her existing stress and depression is getting worse since she became pregnant and she is unable to sleep or eat.
19 I find on the basis of Ms Talbot's affidavit that the applicant is unable to secure a safe or legal termination on Nauru. As I have indicated, that appears to be common ground.
20 I turn next to the medical evidence reproduced in Ms Talbot's affidavit.
21 I find that, on the basis of the evidence of Professor Caroline de Costa, a Professor of Obstetrics and Gynaecology at James Cook University in Queensland that a woman who has been subjected to infibulation who is seeking a pregnancy termination would require the services of a specialist public hospital such as the Royal Women's Hospital in Melbourne or Westmead Hospital in Sydney. I further find on the basis of that evidence, and in light of the stage of the applicant's pregnancy that has been reached, that a surgical termination would be most appropriate, not only for such a woman as the applicant but also because of the passing of time. I find that infibulation carries significant emotional and psychological implications and those aspects of care need to be expertly managed. Large hospitals in Sydney and Melbourne now have considerable experience in dealing with such cases, and also with the provision of surgical abortion. I find there is less experience in Queensland, as Professor de Costa explains, as there are smaller immigrant populations there from the relevant countries. I find that there would be substantial risks in performing the termination in other environments or by practitioners without the relevant experience and immediate physical risks including haemorrhage, infection, serious tears of the relevant organs and major psychological trauma and post-traumatic stress disorder.
22 I find, on the basis of the evidence of Professor Louise Newman, Director of Women's Mental Health at the Royal Women's Hospital in Melbourne, that a specific FGM clinic would be necessary to fulfil the applicant's specific surgical needs and that it would be necessary for the applicant to be examined by a practitioner experienced with FGM to establish exactly the type of termination that would be appropriate. I accept Professor Newman's evidence that the applicant requires a specific clinic for women who have experienced FGM to meet her mental health needs. It would be necessary that there be an established mental health team co-located with the clinic where the termination was to take place, with practitioners with expertise in relation to asylum seeker matters, trauma, detention, and the cultural and religious ramifications of pregnancy termination for a Muslim woman from Somalia. These facilities would be of particular importance given the applicant's prior mental health vulnerability. I find that the facilities at the Royal Women's Hospital in Melbourne are appropriate to meet the applicant's needs.
23 I also find, on the basis of the evidence of Dr Sheng Chiang, recently retired from his post as an attending physician in the Department of Obstetrics and Gynaecology, Mackay Memorial Hospital in Taiwan, that there are no Taiwanese obstetricians and gynaecologists with experience in performing pregnancy terminations on women with FGM.
24 In this respect I also note that the applicant underwent an operation at the Taiwan Adventist Hospital earlier in 2018, that operation being to do with her hand. The applicant's evidence is that she is not comfortable to undertake the pregnancy termination in Taiwan, or, I would infer, specifically in the Taiwan Adventist Hospital, in light of her previous experience in Taiwan at that hospital.
25 I find, for present purposes and as the evidence stands, that the applicant cannot obtain the medical treatment she requires in Taiwan.
26 I find that treatment can be provided in Australia, particularly at the hospitals identified in the affidavit material to which I have already referred, that is, the Royal Women's Hospital in Melbourne or Westmead Hospital in Sydney. I find that a specific FGM clinic is necessary to fulfil the applicant's specific surgical needs and that it will be necessary for the applicant to be examined by a practitioner experienced with FGM to establish exactly the type of termination that would be appropriate. The evidence adduced on behalf of the applicant, I find, is more specific and definite in these terms than the material to be derived from the affidavit of Ms Vanessa Holben. Similarly, I find that the applicant would require a specific clinic for women who have experience in FGM to meet her mental health needs.
27 For present purposes, I find that the assessment and treatment of the applicant in Taiwan would not be suitable in the sense that in the particular circumstances of this case the Taiwan Adventist Hospital, put forward by the respondents, would not provide suitable expertise and facilities.
28 I also observe that the indications from the Taiwan Adventist Hospital that it will accept the applicant are conditional and qualified: I refer in particular to paragraphs [31] and [51] of Ms Holben's affidavit where there is reference to that hospital's "preliminary indication".