Resolution
49 In reaching my decision, I read and considered the series of recent authorities in this Court where similar orders to the ones sought today have been made, namely: Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17; FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63; AYX18 v Minister for Home Affairs [2018] FCA 283; DCQ18 v Minister for Home Affairs [2018] FCA 918; DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050; BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060; DRB18 v Minister for Home Affairs [2018] FCA 1163; and DWE18 as litigation representative for DWD18 v Minister for Home Affairs [2018] FCA 1121. In each of those cases, orders have been made either expressly requiring, or with the effect that, the applicant be removed or evacuated for medical treatment.
50 The issue before me was confined to the grant of interlocutory relief. The broader question of where the applicant needs to stay on a longer term basis, in order that his multiple health needs are properly and sustainably addressed, was not for determination by me. This affected the orders I considered appropriate about reasonable notice of removal, rather than any ongoing injunctions against removal of the applicant. None of the evidence has been tested, but I was satisfied it provided an ample foundation for interlocutory orders - in part because there is considerable consistency across a number of witnesses about the conditions in Papua New Guinea and the facilities available, including documentary evidence, and because there is independent expert evidence firmly supporting the applicant's contention that he cannot be adequately cared for in Papua New Guinea, and supporting the urgency of the need to take him out of Papua New Guinea.
51 Accordingly, for the purposes of the interlocutory application I found the applicant's claims that the respondents owe him a duty of care, and that the duty of care had been breached, and was continuing to be breached, to have a sufficient likelihood of success to warrant the grant of relief to avoid further harm to the applicant. I accepted, for the purposes of interlocutory relief, the applicant's claim that compliance by the respondents with their duty of care, in terms of its content, necessarily involved removing the applicant from Papua New Guinea and taking him to a place where all of his medical and psychiatric health issues can be adequately addressed, in a sustainable and appropriate way. This included the use of Arabic interpreters so that first, the applicant's treatment can be effective, especially his psychiatric treatment, and secondly so the applicant can properly understand the proposed treatment and give informed consent to it. The applicant is no less entitled to these aspects of medical care than any other person who receives medical or psychiatric treatment, in circumstances where a duty of care is owed to that person.
52 As to the balance of convenience, I found the evidence comfortably established that there was a real likelihood of further harm occurring, and I was also prepared to find that the nature of the harm included a serious risk that the applicant may take his own life, or attempt to take his own life, and if he attempted to do so and did not succeed, there would obviously be further serious consequences for his state of health. However, I emphasise that the evidence comfortably satisfied me that the applicant's life itself may be at stake. It would take a great deal to dislodge that as a factor in the balance of convenience, and indeed it is difficult to imagine what consideration could dislodge it.
53 What I refer to in these next paragraphs were not matters on which the Commonwealth relied in submissions before me. It did not oppose the orders being made and there was no occasion for these matters to be put in issue. Nevertheless, they plainly arise on the evidence and I consider it is appropriate that I be clear on how I see these factors. I accepted that the Commonwealth would incur expense, and some diversion of its resources, in complying with the orders sought and that this is a matter to be taken into account in assessing where the balance of convenience lies. However, the Commonwealth is responsible for the predicament in which it finds itself. It chose, through both the statutory framework introduced into the Migration Act, and the exercise of executive power to create a system of detention and visa processing in developing countries which it funded, organised and to a significant extent controlled. It also chose to exercise specific statutory powers under s 198AD of the Migration Act to take the applicant to Papua New Guinea. It did so in circumstances where it is unclear whether any inquiry, or any adequate inquiry, was made of his health before that decision was made - for example, that he was a diabetic. One of the consequences of the applicant being taken to Papua New Guinea was that he was present during riots at the Manus Island processing centre and he was severely injured. Despite that injury, his other health conditions, and the consequences that the combination of these factors may have for his health and specifically, his vision, the Commonwealth has not removed him from Papua New Guinea.
54 One of the consequences of erecting this framework, and exercising powers under it, is that any duty of care which exists to people who are subject to that framework will be more difficult to discharge in certain circumstances. That is the case with the applicant. Accordingly, I give little weight to the fact that the Commonwealth will incur expense and diversion of resources in complying with the Court's orders, because it is a direct consequence of the framework the Commonwealth has chosen to establish.
55 I gave the parties an opportunity to make submissions on an appropriate form of orders. There was some debate about various aspects of the orders. First, there was debate about what the orders should say about access to interpreters. I consider the overriding need of the applicant is for face-to-face interpreting to be available. However I accepted the Commonwealth's submission that in less critical contexts, and on occasions, that may not be possible and so the orders should not be too prescriptive in this way.
56 Second, there was debate about whether the orders should include the words "location in Australia". The respondents submitted the words should not be included. They submitted their inclusion would "set a precedent". I rejected that submission. Each set of orders in these cases needs to be drafted with a close eye to the particular factual situation before the Court. On the evidence, there may well be a persuasive case that Australia is the only likely or reasonable destination. There may be problems with lawful entry into other countries, or whether the applicant consents to being taken anywhere else, bearing in mind that the provisions of the Migration Act (see s 198B) only authorise bringing a person from a regional processing country to Australia. A number of difficulties can be imagined. In the present case, the factual situation was that the Court was informed, prior to making the orders, that the respondents intended to bring the applicant to Brisbane. In my opinion in those circumstances it was appropriate that the respondents' announced intention be recognised in the text of the orders.
ORDERS OF MORTIMER J
(31 August 2018)
- Under s 37AF(1) of the Federal Court of Australia Act 1976 (Cth), on the ground in s 37AG(1)(c) of that Act, publication of the name of the Applicant (who is to be referred to by the pseudonym EHW18) be prohibited.
- As soon as reasonably practicable, the respondents ensure that the applicant is brought from Papua New Guinea to a location in Australia where the applicant can receive:
2.1 an immediate psychiatric evaluation by a psychiatrist in an acute, adult, mental health inpatient unit with a Mental Health Intensive Care Unit and treatment as recommended by that psychiatrist.
2.2 an immediate ophthalmic examination in a tertiary eye centre by an ophthalmologist and ongoing management and treatment as recommended by that ophthalmologist.
2.3 access to an accredited Arabic-language interpreter as required and, where appropriate and necessary, access to a face to face interpreter, while being evaluated and treated as recommended in accordance with paragraphs 2.1 and 2.2 above.
- The respondents provide to the applicant's solicitors at least two clear business days' notice before taking any steps to return the applicant to Papua New Guinea.
- As soon as reasonably practicable and within three weeks, the respondents provide to the applicant's solicitors his complete medical records and all documents relating to his medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation:
4.1 Full medical reports;
4.2 All clinical/progress notes in respect of the applicant's medical conditions including his mental health and loss of vision;
4.3 Copies of any recording or film or other test records in respect of the applicant's medical conditions including mental health and loss of vision;
4.4 Referral letters;
4.5 Specialist assessments;
4.6 Medical assessment records; and
4.7 Correspondence with the Department, officers, agents or delegates of the respondents in relation to the applicant's medical conditions and treatment.
- The proceeding be heard on an expedited basis.
- The proceeding be listed for a Case Management Hearing on a date to be fixed by agreement between the parties and the Court.
- Costs be reserved.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.