Subsequent events
64 There was, ultimately, no compliance with the Court's principal order. On the evidence, the respondents could not complete the arrangements they had made to evacuate the applicant by air ambulance from Nauru. The reason for this was, on the evidence, a decision by the Government of Nauru, which I explain below.
65 On being notified that a problem had arisen, the Court reconvened urgently on Wednesday, 5 September 2018, first at lunchtime and then again at 5.30 pm. At 5.30 pm further affidavit evidence was read and relied upon by both the applicant and the respondents. The applicant read and relied upon affidavits of Ms Fiona Owens, a Social Worker and the former Manager of the Child and Adolescence Mental Health Services division of IHMS on Nauru, and a further affidavit of Ms Chetty. The respondents read and relied upon an affidavit of Ms Vanessa Holben, Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force.
66 One of the matters Ms Holben deals with in her affidavit is a Nauruan committee, the Overseas Medical Referral Committee. Ms Holben describes that committee, its functions and its relationship to the Commonwealth's power to bring "transitory persons" into Australia for a temporary purpose under s 198B of the Migration Act, as follows:
The Republic of Nauru (RoN) Hospital participates in the Nauru Ministry of Health's Overseas Medical Referral (OMR) process, which allows referral of members of the Nauruan community, including refugees, for overseas medical treatment that is not available at the RoN Hospital. I can confirm that the OMR process works through a committee that meets weekly and ad hoc, as required. If a medical professional determines that a refugee requires treatment that is not available on Nauru, they will prepare a case report and present this to the OMR Committee for consideration. The OMR Committee will then decide whether or not to approve the OMR.
An approved OMR, in relation to a refugee, assists the Department to facilitate liaison between Departmental officers and authorities within Nauru, such as the RoN Hospital and other third parties. It also generates a series of activities, including consideration of what assistance the Department can provide, and the making of logistical arrangements for the person to facilitate transfer of the refugee, including to Australia for medical treatment in accordance with paragraph 4.2.4 of the Administrative Arrangements.
In making a decision as to what assistance the Department may provide to the Nauru Government to provide treatment to a person who is the subject of an OMR, including whether to approve the person's transfer to Australia or assist with their transfer to another country, the Transitory Persons Committee (TPC) is convened. Ordinarily, I will make a decision whether to approve assistance or transfer for a refugee following discussion with, and receipt of a recommendation from, the TPC.
In coming to a decision, I will consider information such as the relevant person's health information, immigration status on Nauru, behavioural history, family situation and whether any necessary health care can be provided in Nauru.
67 Clearly the process Ms Holben describes will not necessarily be applicable to emergency situations.
68 The Court's enquiries about the status of the OMR committee under Nauruan law, and how it was apparently able to make decisions preventing a person leaving the country for medical treatment, were not able to be answered.
69 Nevertheless, the narrative, insofar as this process was applied to the applicant, appears to have been as follows, based on the affidavit evidence. The respondents set out to arrange the applicant's evacuation by air ambulance, in order to comply with the Court's orders, and the 48 hour time limit. Ms Holben deposed:
In this case, given the court orders (made by consent) and the urgency of the matter, the Department of Home Affairs on 3 September 2018 sought urgent approval for the applicant's transfer directly from the Nauru Secretary for Multicultural Affairs, Ms Barina Waqa despite the OMR committee not having been able to consider the matter prior to the court orders being made.
Ms Waqa has so far declined to grant approval for the medical transfer because she was not satisfied on the medical evidence that the applicant requires an emergency evacuation and could not be treated on Nauru. She therefore insisted on the applicant's case to go through the OMR process set out in paragraphs 12 to 14 from Nauru. She also requested a review and report from the applicant's treating psychiatrist. As a result, the Government of Nauru refused to grant permission for the air ambulance to land in Nauru. The ambulance therefore had to be cancelled upon which the Department will have to pay a cancellation fee.
70 The Court was informed the cancellation fee was $100,000. As Ms Holben noted in her evidence, and as one might expect with a sovereign state, the Government of Nauru had power to approve, or refuse approval, for a plane such as an air ambulance to make a non-scheduled landing in its territory. Ms Holben deposed, and there is no reason to doubt, that a "non-scheduled landing" without approval from the Government of Nauru would be unlawful. She also deposed to the adverse effect any attempt to make such a landing without Nauruan approval was likely to have on the Australia-Nauru "working relationship" in relation to regional processing.
71 Plainly, the Commonwealth would not press ahead with the air ambulance transfer in those circumstances, and could not properly be expected to do so.
72 Thus, the position appears to be that the Government of Nauru took a decision which resulted in the Commonwealth and the Minister being in breach of orders made by this Court. Whether or not the Government of Nauru was aware of this Court's orders when it made that decision was not a matter addressed in the evidence.
73 Ms Holben deposed that, being the holder of a temporary visa in Nauru, the applicant had a right to depart and re-enter Nauru. She deposed that, therefore, the Government of Nauru, through Ms Waqa "would not object, and she has no legal basis to, to the applicant and her brother boarding a commercial flight". Ms Holben deposed that accordingly the respondents then commenced to arrange for the applicant to leave Nauru with her brother in that way.
74 Real questions, on the evidence, seemed to arise about the applicant's fitness for travel in that way, and whether a commercial airline would agree to take her. However, Ms Holben deposed (on information from at least two Australian Border Force officers - Kylie Black, Inspector, Offshore Health Operations Section, Australian Border Force, and Lauren Richardson, Australian Border Force Nauru Programme Coordinator) that the IHMS psychiatrist in Nauru responsible for the recent care and supervision of the applicant, Dr Andrew Mohanraj, had given "a verbal approval that the applicant is fit to fly on a commercial flight without escort, but with her brother". Ms Holben deposed that the Department:
has arranged for the applicant and her brother to travel to Australia on a commercial flight on this Friday 5 September 2018 at 6.30am from Nauru to Brisbane.
75 It was then going to be necessary for the applicant to be transferred from Brisbane to the two hospitals in New South Wales which had agreed to accept her. The respondents submitted the Court should allow 24 hours for that travel within Australia. Although the applicant submitted a shorter time should be specified, I was satisfied in the circumstances that it was appropriate to allow 24 hours, in case there were unavoidable delays. It was not appropriate, in my opinion, to put the respondents at risk of being non-compliant with Court orders of this kind for a second time. The Court's main concern, in the circumstances, was to ensure the applicant and her brother were able to leave Nauru. Once in Australia, the Court was confident the respondents would attend to securing the necessary care for the applicant in an appropriate way.
76 Accordingly, the order made on 3 September 2018, which I have extracted above, was vacated, and the following orders were made:
1. Order 1 of the orders made on 3 September 2018 is vacated.
2. As soon as reasonably practicable and within 60 hours, the respondents ensure that the applicant is transferred, accompanied by her brother who has been on Nauru with her, to the Shellharbour Hospital, New South Wales (NSW) for assessment of her physical health and treatment in accordance with that assessment.
3. If and when recommended by the Shellharbour Hospital following assessment of the applicant's physical health and in consultation with, and approval by, the South Coast Private Hospital, NSW the respondents ensure that the applicant is transferred to the South Coast Private Hospital for assessment and treatment by a psychiatrist and team of health experts with experience in the treatment of depression and trauma-related disorders and treatment as recommended by that psychiatrist and team.
4. The respondents ensure that when assessing and treating the applicant in accordance orders 2 and 3 above, as required, the hospitals provide the applicant with access to an accredited Farsi-language interpreter, and where appropriate and necessary, access to a face-to-face interpreter.
77 The parties were also ordered to provide a joint report to the Court in respect of compliance with those orders by 9 am on 10 September 2018, and the respondents were requested to provide an update by 3 pm on 7 September 2018. On the afternoon of 7 September 2018, the respondents reported to the Court that the applicant and her brother had travelled by the scheduled commercial flight to Australia, and were being moved to the hospital in New South Wales which had agreed to take the applicant.