DRB18 v Minister for Home Affairs

BROMBERG J: 1 This is an urgent application for an interlocutory mandatory injunction. The interests of justice require a careful and immediate adjudication of the interlocutory application. 2 The applicant is a 27 year old man from Somalia. He is a refugee within the meaning of the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) and was recognised as such by the Secretary of the Department of Justice and Border Control of Nauru in or about October 2015. 3 The applicant arrived in Australia on or about August 2013 and was subsequently taken into immigration detention on Christmas Island. In January 2014 the second respondent ("the Commonwealth") transferred the applicant, then aged 22, from Christmas Island to Nauru. That was done against the applicant's will and purportedly pursuant to s 198AD of the Migration Act 1958 (Cth). 4 The Commonwealth funds International Health and Medical Services ("IHMS") to provide medical services in Nauru. It is not in contest that the applicant has been the recipient of the services of IMHS. In particular, the evidence before me is to the effect that since around 2 February 2018, the applicant has suffered from blurring of his vision. On repeated occasions since that time, and in particular since 29 May 2018, the applicant has consulted IHMS medical staff in relation to his left eye. Since around 9 June 2018, the applicant has experienced various symptoms in his right eye and sought medical treatment from IHMS in relation to that. 5 The applicant's consultation with IHMS medical staff on 29 May 2018 occurred as a result of the applicant complaining that some two weeks earlier, while riding a motorbike, a foreign object came into his left eye which resulted in pain and blurred vision. At that time, IHMS considered that the applicant should be referred for the opinion of an ophthalmologist and further management. On 22 June 2018, by way of a telephone consultation, the applicant was assessed by Dr Sharon Morris, an ophthalmologist. I will refer to her report later. 6 The applicant claims that he requires further urgent medical treatment to deal with the injury to his eyes. He contends that the respondents have failed to provide to him the treatment he requires. He contends that an adequate and reasonable standard of medical care to treat his health condition is that set out in an opinion provided by Dr Nima Pakrou dated 16 July 2018. I will also return to consider that report later. 7 By his Statement of Claim, the applicant contends that the respondents owe him a duty of care, the content of which I will shortly address. He says that the respondents are in breach of the duty of care owed and, by way of interlocutory relief, he seeks an order in the following terms: As soon as reasonably practicable and within 48 hours, the Respondents ensure that the Applicant is brought from Nauru to a location where the Applicant can receive medical assessment and treatment provided by a specialist ophthalmologist in a tertiary level hospital facility, in accordance with the recommendation of Dr Nima Pakrou dated 16 July 2018. 8 The principles to be applied in determining whether to grant an interlocutory injunction are well established. I recently set out the relevant principles in BAF18 as litigation representative for BAG18 v the Minister for Home Affairs [2018] FCA 1060 at [6]-[10]. I adopt that reasoning here without repeating it. In summary, what an applicant must first show is that there is a prima facie case in relation to the claim made for final relief. Second, the Court asks whether the balance of convenience favours the grant of an interlocutory injunction. Those two questions are interrelated such that a balance of convenience strongly favouring an applicant will call for a lower standard of satisfaction in respect of the prima facie case. 9 The respondents concede that there is a serious question to be tried or, in other words, that a prima facie case is established. That means, in essence, that for the purposes of this interlocutory application, the respondents concede that they owe the applicant the duty of care asserted by his Statement of Claim. 10 At [19] of the Statement of Claim, the duty of care is described. In essence the applicant claims that the respondents owe and continue to owe the applicant a duty of care to exercise their statutory powers and non-statutory executive powers to take all reasonable steps, firstly, to procure for the applicant a reasonable and adequate standard of medical treatment and, secondly, to avoid or minimise the risk of the applicant suffering the harm that is pleaded at [14]. The harm there pleaded is the risk of significant and irreparable harm in the form of ocular injury causing irreversible visual defect or blindness in the left and right eyes of the applicant. 11 The respondents' concession that a serious question to be tried exists includes a concession that there is a serious issue that the duty of care is and will continue to be breached. Given that concession, the real issue between the parties is where the balance of convenience lies and whether, in the Court's discretion, orders should be made. 12 The respondents essentially accept that they should provide to the applicant the treatment he contends is required. They say, however, that there is no need for the Court to make any interlocutory orders because they are taking steps to procure for the applicant the medical treatment he requires. Implicit in that contention is that the steps proposed to be taken by the respondents will mean that any breach of the respondents' duty of care will either be avoided or rectified. 13 It seems to me that whether any such breach will be avoided or rectified turns, in the circumstances at hand, on the following questions: (1) How urgent is the need for the applicant to be provided the medical treatment he requires?; and (2) If the need is urgent, do the steps proposed to be taken by the respondents meet the applicant's medical requirements? 14 As to whether or not the applicant needs urgent medical treatment, the following evidence is relevant. 15 Dr Mark McCombe is an ophthalmologist engaged on behalf of the applicant. By an opinion provided some 17 days ago, Dr McCombe states: Opinion It is my opinion that this patient should have a full ocular examination by an ophthalmologist including investigations, to ascertain the cause of loss of vision in the left eye and in particular to exclude the diagnosis of penetrating eye injury. This examination should be carried out at a centre where specialist tertiary eye treatment can be performed. The history of the eye condition is consistent with the diagnosis and the examination performed thus far do not exclude it. Penetrating eye injuries and their sequelae, are caused by foreign objects striking the eye and leaving a full-thickness wound in the coats of the eye. They can commonly cause severe visual loss if left untreated. Although the injury has occurred approximately two months ago, a complete examination of the eye should be carried out relatively urgently as further delay will further reduce the likelihood of visual recovery with treatment. Even at this stage it is still possible that some vision may be recovered in the eye with treatment depending on the diagnosis and extent of damage to the eye. Failure to treat a penetrating eye injury promptly may lead to irreparable visual loss in the affected eye. The only other diagnosis that would cause severe visual loss after an incident such as this would be a severe blunt injury to the eye but this would seem less likely. Again however the eye should be examined promptly. There is no indication of a diagnosis of glaucoma given the contents of the medical report. Given the available history and examination notes of this incident, it is my belief that it is more likely than not and even highly probable that the patient has sustained a penetrating eye injury to the left eye. I would suggest unequivocally he have a full ocular examination by an ophthalmologist urgently to exclude the above diagnosis. 16 As to the question of the urgency of treatment, the following aspects of Dr McCombe's opinion seem particularly pertinent. It is said that although the injuries to the applicant occurred approximately two months prior to Dr McCombe's report, a complete examination of the applicant's eye should be carried out "relatively urgently as further delay will further reduce the likelihood of visual recovery with treatment". Dr McCombe acknowledges that, with treatment, there is a possibility that some vision may be recovered, and that the failure to promptly treat the injury may lead to irreparable visual loss in the affected eye. Dr McCombe ends his report by stating that "unequivocally" the applicant should have a full ocular examination by an ophthalmologist "urgently" in order that the diagnosis of severe blunt injury to the applicant's eye can be excluded. 17 To my mind, although Dr McCombe does not identify a particular or specific date by which treatment must occur, a fair reading of what is said suggests that what Dr McCombe had in mind was that the treatment he recommended be provided to the applicant as soon as reasonably possible. I will add, because it is relevant to a consideration that I deal with later in these reasons, that Dr McCombe's report was provided to the respondents on 11 July 2018. 18 There is further material from Dr McCombe in evidence, consisting correspondence from Dr McCombe dated 16 July 2018. That correspondence sets out Dr McCombe's opinion that the equipment required to examine and exclude a diagnosis of a penetrating eye injury would be a slit lamp (a type of microscope using a slit beam of light), an indirect ophthalmoscope (used to examine the back of the eye), and in cases where there is no clear view of the back of the eye, an ocular ultrasound. 19 I then turn to the evidence of Dr Morris. As I have said, Dr Morris had a consultation by telephone with the applicant on 22 June 2018. In the first report provided by her, Dr Morris included a summary of her recommendations as follows: Summary recommendations: Therefore, given the difficulties discerning his true pathology, I recommend that he sees a local Ophthalmologist for an opinion, ideally within 1 month, and suggest he needs an enhanced MRI to investigate further. Given that it has been 2 months of significant visual loss in the left eye and relative afferent pupillary defect in the absence of apparent retinal detachment, it is unlikely that any immediate treatment could reverse this. However, if he were to develop increasing redness, pain or photophobia or worsening proptosis, I would recommend urgent Ophthalmic review. 20 It will be evident that in terms of urgency, Dr Morris considered that treatment within a month of her report, dated 22 June 2016 but which I assume to have been prepared on 22 June 2018, would be ideal. She did, however, say that if the applicant were to develop increasing redness, pain or photophobia or worsening proptosis, she would recommend an "urgent" ophthalmic review. 21 There is evidence that shortly after the date of Dr Morris' report, the applicant's condition worsened. On 6 July 2018, the applicant complained on a form headed "RPC Feedback and Request Form" that he had been "suffering a lot of pain" in his left eye and had "totally lost vision". In a similar complaint on a similar form made on 9 July 2018, the applicant said that he was losing his whole vision and that no one cares about the pain that he is in. He sought to be treated by an eye specialist as soon as possible. 22 Even if the applicant's condition had not deteriorated, what Dr Morris had in mind was treatment before 22 July 2018, some 3 days ago. 23 There is, however, a further report from Dr Morris in evidence. That report is dated 23 July 2018, the same date on which this proceeding was issued. In that report, Dr Morris states that, in her opinion, a review by an ophthalmologist within six weeks of the date of her earlier report of 22 June 2018 would be reasonable, thus extending by two weeks the time by which she considered that treatment should be given absent deterioration in the applicant's condition. 24 Why Dr Morris was asked to reconsider her earlier view, and why she did so, is not apparent from the material. By the time of this report, the respondents had the report of Dr McCombe, but that report does not appear to have been provided to Dr Morris. In any event, on its face, the view that Dr Morris expressed on 23 July 2018 does not take into account or deal with her earlier view that if the applicant's injury developed the symptoms described in her first report, her recommendation was for urgent ophthalmic review. 25 Next I turn to Dr Nima Pakrou's evidence. Dr Pakrou is also an ophthalmologist. In his report he concluded as follows: OPINION: My opinion is based solely on the information provided. It is difficult to provide an accurate or conclusive diagnosis as I have not examined the patient and the clinical notes are inadequate in some areas and conflicting. Despite this I believe that the patient could potentially have very severe damage to the left eye, which may be permanent. I am not certain as to the nature of the trauma to the eye. A severe blunt trauma to the eye can certainly cause the pupil to become somewhat fixed and less reactive and can also cause secondary intraocular inflammation. This could cause sensitivity to light and pain and redness. It can also cause a bleed within the vitreous jelly of the eye as well as a retinal tear or detachment. A vitreous haemorrhage will severely decrease the vision and a retinal detachment can also result in a severe decrease in vision and an RAPD and the finding of hand movement vision in the left outer quadrant vision. A penetrating eye injury cannot be ruled out either, however I would expect the eye to be more red and painful and the intraocular pressure to be lower. It is my strong belief that a thorough examination be carried out by an ophthalmologist at a tertiary centre as an urgent matter. Intraocular inflammation or even infection needs to be ruled out. There needs to be a full dilated exam of the back of the eye to see if there is a haemorrhage in the vitreous jelly of the eye and to rule out a retinal detachment. If the view of the back of the eye is too poor then an ultrasound B-scan of the eye needs to be done. If the trauma to the eye has been very severe there is also the possibility of a traumatic optic neuropathy. This could be observed as a pale optic nerve and perhaps evidence of trauma to the optic nerve can be seen on a dedicated MRI scan of the orbit and the optic nerve. Even though the prognosis is likely to be poor, there is the possibility that intervention may be able to restore some vision, especially if the cause is a retinal detachment. If there is a penetrating injury to the eye there is also the rare but possible risk of inflammation (and even loss of vision) to the unaffected eye. This is called sympathetic ophthalmia. Considering the most likely diagnose [sic], I believe that without the assessment and potential intervention by a trained ophthalmologist, [the applicant] is at high risk of permanent and irreversible blindness in the left eye, and potential risk to the right eye. 26 Of particular note to the issue I am addressing is Dr Pakrou's "strong belief" that a thorough examination should be carried out by an ophthalmologist at a tertiary centre "as an urgent matter". The basis given for that included the need for intraocular inflammation or even infection to be ruled out. Dr Pakrou noted that there is the possibility that intervention may be able to restore some vision. He concluded with the observation that, without assessment and potential intervention by a trained ophthalmologist, the applicant is "at high risk of permanent and irreversible blindness in the left eye and potential risk to the right eye." 27 That report was written 10 days ago. There is no doubt in my mind that what Dr Pakrou recommended was that treatment be provided to the applicant as soon as is reasonably possible. 28 I am satisfied on the evidence and for the purposes of the interlocutory application, that the treatment that the applicant requires is now overdue. In my view, there is a serious issue that in order to avoid or rectify a breach of their duty of care, and in particular, to avoid significant and irreparable harm to the applicant's eyes, the respondents need to take all reasonable steps to procure for the applicant, the medical treatment he needs at the earliest reasonably available opportunity. 29 The second question then is whether the steps the respondents propose to take will meet that requirement; namely, is what is proposed the provision of the requisite medical treatment at the earliest available opportunity? 30 To consider that, I need to turn to what is proposed by the respondents. I do that through the evidence filed on behalf of the respondents in an affidavit of Vanessa Jane Holben affirmed on 25 July 2018. Ms Holben is employed as the Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force. In her affidavit, Ms Holben deposed that on 19 July 2018, the Government of Nauru Overseas Medical Referral Committee ("OMRC") approved the applicant for medical treatment overseas. Ms Holben further deposed that through a committee known as the Transitory Persons Committee ("TPC"), decisions are made as to what assistance the Commonwealth may provide to the Government of Nauru in order to provide treatment to a person the subject of an overseas medical referral by the OMRC. 31 On 23 July 2018, the TPC considered the applicant's case and approved the Commonwealth assisting the Government of Nauru to arrange for the applicant to be treated at a hospital in Taiwan known as the Taiwan Adventist Hospital. On 23 July 2018, the Taiwan Adventist Hospital confirmed that it can accept the applicant's referral. The Taiwan Adventist Hospital is an internationally accredited tertiary hospital with a team of 15 doctors specialising in ophthalmology. Ms Holben says that the hospital is able to conduct an MRI and she identifies the doctor who can see the applicant, describing that doctor's specialisation as ocular plastic surgery, nasolacrimal duct surgery, refractive disorders and general ophthalmology. 32 Of some import is Ms Holben's evidence that she has been informed that the transfer of the applicant to Taiwan for assessment and treatment at the Taiwan Adventist Hospital can be arranged by 30 July 2018. However, Ms Holben's affidavit does not depose to when it is that the applicant would receive treatment in Taiwan. In the absence of that evidence, the applicant contended that I could not be satisfied that treatment would be provided at some time soon after the arrival of the applicant in Taiwan. 33 Ms Holben also deposed to inquiries having been made by IHMS with the Pacific International Hospital in Port Moresby, Papua New Guinea regarding whether that hospital could accept a referral of the applicant for treatment. Her evidence is that the Pacific International Hospital has an ophthalmic surgeon who can review and treat the applicant. If an MRI is required, that hospital has that facility available. On 24 July 2018, the Pacific International Hospital confirmed that if referred, an appointment could be made for the applicant with an ophthalmic surgeon on either 27 or 28 July 2018. 34 Ms Holben also deposed that she has been informed that the Republic of Nauru Hospital had arranged for an ophthalmology team from the Pacific Eye Institute, Fiji, to visit Nauru. She deposed that the Pacific Eye Institute is an initiative of the Fred Hollows Foundation, New Zealand, and the ophthalmological team visiting Nauru includes ophthalmic surgeons. The team is expected to arrive in Nauru on 27 July 2018. 35 Ms Holben has been informed by IHMS that the ophthalmological team from the Pacific Eye Institute would be able to see the applicant on 27 July 2018. That once assessed by the team, the team may be able to perform required surgery on the applicant at the Republic of Nauru Hospital or, if any other investigation such as an MRI or surgical intervention not able to be conducted is required, the applicant could be transferred to a third country such as Taiwan. Ms Holben also says that she has been informed that a slit lamp as well as indirect ophthalmoscope and ocular ultrasound testing is available at the Republic of Nauru Hospital. 36 Although not expressed in this way by Ms Holben, counsel for the respondents told the Court that what the respondents have in mind is a two-step process. The first step would be that the Pacific Eye Institute team assess the applicant on the afternoon of 27 July 2018. As a second step, and in circumstances where the applicant required an MRI or surgical intervention not able to be conducted by the Pacific Eye Institute team, the applicant would then be flown to Taiwan and arrive there by 30 July 2018 in accordance with Ms Holben's evidence. 37 I accept that the two-step proposal of the respondents is capable of providing the applicant with the treatment that he needs, save that I consider that what is required is treatment at a tertiary level hospital facility. I say that accepting the evidence of Dr Pakrou and also because of the potential need for an MRI which is envisaged by both Dr Pakrou and Dr Morris. 38 The respondents' proposal, at least by its second step includes the provision of treatment to the applicant at a tertiary level hospital facility. However, I do not accept, on the evidence before me, that the respondents' proposal would necessarily provide the medical treatment required by the applicant at the earliest reasonably available opportunity. It may or may not. There may well be earlier opportunities available to provide the requisite treatment at the tertiary level hospitals identified by the respondents or an earlier opportunity may be available at other hospitals not yet identified. The availability of treatment for the applicant at a tertiary level hospital facility other than in Taiwan and Papua New Guinea has not been explored by the respondents. 39 In the absence of any evidence that the respondents' proposal is, or is likely to provide, the earliest or even an early reasonable opportunity for treatment, I do not consider that the respondents' proposal warrants that no interlocutory order be made. 40 In coming to that view, I take into account the evidence before me, particularly evidence in the affidavit of Arti Chetty, a representative of the applicant, affirmed on 23 July 2018, of detailed correspondence between the representatives of the applicant and the respondents repeatedly requesting urgent treatment for the applicant. As I said earlier, on 11 July 2018, the respondents were provided with Dr McCombe's report. Despite that correspondence and the urgings made by the representatives of the applicant, not much, if anything, was done by the respondents to arrange the necessary medical treatment, at least up to the time that these proceedings were threatened. That conduct does not reveal that the respondents have regarded the provision of treatment to the applicant as a matter requiring urgency. That prior conduct gives me little confidence that what the respondents propose is or is likely to be the earliest reasonable opportunity available for the applicant to be given the treatment he needs. 41 In further addressing the balance of convenience, it is necessary to say that, on the evidence before me, I accept that there is a serious issue that the applicant faces a risk of irreparable loss of his vision, particularly in his left eye, unless treatment is urgently provided. Conversely, the respondents do not point to any specific prejudice. No doubt there will be expense involved in any transfer and medical treatment, but, given that there is a risk of further permanent disability to the applicant and a substantial diminishing to his quality of life, any concern for the expense that might be incurred by the respondents should not be regarded as comparatively important. I note also that counsel on behalf of the applicant has given the usual undertaking as to damages. 42 In my view, it is appropriate that an interlocutory order be made to the effect that, as soon as reasonably practicable, the respondents take all necessary and reasonable steps to identify a tertiary level hospital facility where the applicant can be provided the medical treatment he needs at the earliest reasonably available opportunity and that the respondents take all reasonable steps to ensure that the applicant is provided with that medical treatment at that facility. 43 I will hear the parties as to the terms of the orders to be made. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg.