EMK18 v Minister for Home Affairs

The interlocutory application and the proceeding 1 On 31 August 2018, the Court made orders on an urgent interlocutory application, which are reproduced at the end of this judgment. These are the reasons for those orders. 2 The applicants are mother and daughter. The second applicant is approximately 16 months of age. She brings this proceeding through her litigation representative, who is her father. The second applicant's father is also currently the only personal support for the first applicant and their daughter. The first applicant and her husband are from Somalia. Their daughter was born on Nauru. 3 On 31 August 2018, the applicants commenced a proceeding in this Court, seeking injunctive and declaratory relief against the Minister for Home Affairs and the Commonwealth, as well as damages. Although the first applicant commenced the proceeding in her own right, after being directed to the evidence and considering submissions from the applicants' legal representatives, I determined it was appropriate, at least in the short term, to make an order appointing the first applicant's husband as her litigation representative. The orders I made on 31 August 2018 reflected this. 4 Orders were also made pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c) of that Act, that the publication of the names of the applicants (who are to be referred to by the pseudonyms EMK18 and ELM18), the names of their family members or any information which would reveal or tend to reveal the identity of the applicants and their family members, be prohibited. I shall refer to EMK18 and ELM18 as "the applicants" wherever possible, rather than by the pseudonym. Where necessary, I refer to ELM18 as "the first applicant's daughter". The first applicant's husband, and the second applicant's father, is to be referred to by the pseudonym EMM18. 5 The applicants sought urgent interlocutory relief, in substance that the respondents be required to transfer them as soon as possible (and, the applicants contended, within 48 hours) from Nauru to a location in Australia where they could receive urgent and immediate psychiatric and paediatric evaluation and treatment in appropriate circumstances (which I discuss in more detail below). None of this treatment, the applicants contended, was available in Nauru, or available in an adequate way with adequate facilities. There was, as I set out below, a suggestion that the Commonwealth was prepared to transfer the family to a hospital in Taiwan. Insofar as the evidence revealed there was no consent to this course from the first applicant, and none from her husband on behalf of the second applicant or on his own behalf. 6 The Court was not directed to any statutory power vested in Australian officials to take people from Nauru to Taiwan, or anywhere else outside Australia, against their will and without their consent. The Memorandum of Understanding with the Taiwanese authorities requires, expressly, that those to be given medical treatment in Taiwan consent to being taken to Taiwan, as well as (clearly) consenting to the medical treatment to be administered. Indeed, the respondents did not suggest the applicants and their family would be taken against their will to Taiwan. 7 The approach the Court should take to an interlocutory application such as this is well-established and I have referred to it in my reasons in EHW18 v Minister for Home Affairs [2018] FCA 1350. I adopted the same approach on this application. 8 In support of the interlocutory application, the applicants read the affidavit of Ms Kiera Lee Peacock, a solicitor employed by Marque Lawyers, affirmed on 31 August 2018. No objection was taken to that affidavit. Included in that affidavit were the expert reports of Dr David Berger dated 24 August 2018, Dr Kym Jenkins dated 27 August 2018 and Dr Paul Bauert, which Ms Peacock deposes was made around 29 August 2018. 9 Ms Peacock deposed that as a result of recent changes within the Commonwealth executive, the ministerial responsibilities for what had previously been the portfolio legislation of the Department of Home Affairs, including the Migration Act 1958 (Cth), were divided between the Minister for Home Affairs and a newly created ministerial position, the Minister for Immigration and Multicultural Affairs (an apparent reference to the Minister for Immigration, Citizenship and Multicultural Affairs). She deposed that despite requests having been made to the Australian Government Solicitor for clarification, it was unclear to the applicants' legal representatives which of the two Ministers, the Minister for Home Affairs or the Minister for Immigration, Citizenship and Multicultural Affairs, or possibly both, is the relevant minister for the purpose of the various powers and functions contained in Subdiv B and Subdiv C of Pt 2 of the Act. 10 For the purposes of the interlocutory application, and since the Commonwealth is a respondent to the proceeding, I did not consider this issue precluded orders being made against the respondents as named. Neither respondent suggested it did. However, there may come a time in these kinds of proceedings, especially where there is a fully contested application, where it is more appropriate to name an individual rather than an office holder, so that responsibility for compliance with the Court's orders can be precisely identified.

The applicant's circumstances 11 The first applicant was born in Somalia on 31 December 1989. She arrived in Australia by boat and without a valid visa and, with her husband, was taken under s 198AD of the Migration Act to Nauru on 21 October 2013. They were detained at the Nauruan Regional Processing Centre. They were both subsequently recognised as refugees by the Government of Nauru. Their daughter has also been recognised as a refugee. She was born on 4 April 2017 in Nauru. All of the family members now hold visas which entitle them to remain in Nauru. 12 There is in the evidence before the Court information about the first applicant's circumstances in Somalia. I will not make those details public, but it suffices to say the first applicant fled from traumatic and difficult circumstances in Somalia. 13 The first applicant's dire medical circumstances are apparent from the medical records and the expert opinions. She suffers a range of debilitating physical and psychiatric conditions. Her daughter also had some concerning presentations, which the evidence demonstrates require some urgent investigation in order to secure an accurate diagnosis. 14 The catalyst for the steps which led to this application appear to have begun in mid-August 2018. Ms Peacock deposes that she was informed by Ms Catherine Wall of the Asylum Seeker Resource Centre that on 16 August 2018, Ms Wall received reports that the first applicant had attempted suicide by hanging.

Arrangements between Australia and Nauru 15 Ms Peacock's affidavit dealt with these arrangements and was not challenged by the respondents. It is not necessary to set out a great amount of detail, but some mention of the arrangements between Australia and Nauru should be made. Nauru has been declared as a "regional processing country" under the Migration Act. 16 The Commonwealth and Nauru have entered into two agreements which govern their relationship, relevantly to the interests of the applicants in this proceeding. They are a Memorandum of Understanding and a set of Administrative Arrangements. The Memorandum of Understanding was in evidence before the Court in this proceeding. As part of the implementation of those arrangements, the evidence is that the Commonwealth has entered into a contract for the provision of medical services to people such as the applicants with International Health and Medical Services. According to the evidence, the applicants contend that by that contract (and among other matters) IHMS is providing services on Nauru to people such as the applicants on the basis that: (a) IHMS and the Commonwealth were "committed to providing all Transferees access to health care to a level, standard and timeliness broadly consistent with health care available to the Australian community, taking into account the diverse and potentially complex health needs of Transferees" (recital C, cl 6.1(a)(ii)(A)); (b) "The overarching philosophy [that] Health Care provided on Nauru … is to ensure that Transferees and Recipients have access to clinically recommended care, that is the best available in the circumstances and broadly comparable with health services available within the Australian community, taking into account the diverse and potentially complex health needs of Transferees." (Schedule 2 "Introduction"); (c) The parties to the contract "acknowledge and agree... that (a) the Department may owe a duty of care to Transferees" (cl 7.1(a)(i), see also cl 56.1); and (d) "[M]edical treatment, assistance and escorts for medical evacuations from Nauru will be provided" (cl 26).

The Applicants' claims in the proceeding 17 Broadly speaking, the applicants allege that the respondents owe them a duty of care to take all reasonable steps: (a) to procure for the applicants an adequate standard of medical treatment, being necessary medical treatment provided in an appropriate environment; and (b) to avoid or minimise the risk of the applicants suffering the harm which it is alleged they have suffered and will suffer. 18 The duty of care is said to arise from circumstances including the control exercised by the respondents over the medical treatment of the applicants and the respondents' assumption of responsibility for that medical treatment, including the location of the medical treatment and the manner in which the applicants receive treatment. It is alleged that the applicants have no means, or ability independently to access medical treatment, including the treatment which the evidence shows each of them need, such as psychiatric treatment and (for the first applicant's daughter) assessment and treatment by a specialist paediatrician. The applicants contend the respondents know or ought to know that failure to procure adequate and reasonable medical treatment for them may cause them harm, including the real risk of life threatening complications, serious injury or long term health conditions. 19 The applicants allege the respondents have breached their duty of care to them by failing to take any reasonable steps to seek to ensure that the applicants receive reasonable and adequate medical care, in circumstances where their need for such care is pressing, and ongoing. 20 The applicants allege no adequate and reasonable standard of care can be provided to the applicants in Nauru because there is no tertiary level hospital.

The key medical evidence on the application 21 There was expert evidence adduced in relation to the health and medical needs of both applicants. 22 Dr Jenkins is a consultant psychiatrist. Dr Jenkins' report of 27 August 2018 records that the first applicant has been diagnosed with a severe depressive illness that is psychotic in nature, and also with post-traumatic stress disorder. Dr Jenkins concludes that the first applicant requires urgent access to a full, comprehensive and holistic psychiatric assessment (which in her opinion may necessitate electroconvulsive therapy, or "ECT"). 23 Ms Peacock's evidence was that Dr Jenkins had told her that because ECT was a possibility, there are likely to have to be extensive consultations and information sessions for the first applicant, probably together with her husband. There will also have to be consultations with an anaesthetist (regarding any ECT), nutritionist and psychiatrist. Dr Jenkins told Ms Peacock that it would be extremely difficult to properly inform a patient about ECT through the use of a phone interpreter, due to its complexities, the length of the consultation (several hours) and the need for properly informed consent prior to its administration. As I also found in EHW18, it is clear that treating psychiatric conditions, and explaining medical procedures so as properly to obtain informed consent, is likely to require face-to-face interpreting. Dr Jenkins also explained to Ms Peacock her opinion about the need for adequate services to assist the first applicant in re-establishing a relationship with her child. Having reviewed the IHMS records, Dr Jenkins' opinion is that she did not see evidence in those records that the level of care required exists on Nauru. 24 Dr Berger is a registered medical practitioner with a background in internal medicine and general practice. He currently works as an emergency medicine doctor, mostly at Broome Hospital in the far north-west of Western Australia. He notes in his report that Broome Hospital is the kind of remote Australian regional hospital often compared to the Republic of Nauru Hospital. 25 He notes, having examined the first applicant's medical records that she has experienced rapid weight loss and her Body Mass Index is at a level significantly below World Health Organisation guidelines for being underweight. His opinion is that she requires urgent access to an ENT specialist (a reference that appears to be to an Ear, Nose and Throat Specialist), as well as a general physician. He states that the: …combination of this woman's psychiatric and physical conditions represents a difficult management scenario, requiring high levels of psychiatric and internal medicine medical and nursing expertise and I do not believe we would try to manage this case in Broome Hospital... 26 Dr Bauert is a paediatrician. His opinion (expressed in his report on or around 29 August 2018) is that the first applicant's daughter is suffering from episodes of severe agitation and aggression, which may be caused by an organic illness. She requires access to a paediatric hospital with EEG and MRI availability for full assessment, in Dr Bauert's opinion. 27 For the purposes of the interlocutory application, I accepted the evidence in the reports of Dr Jenkins, Dr Berger and Dr Bauert, as well as Ms Peacock's evidence of the additional matters they discussed with her. The evidence reveals a dire situation for the first applicant, a worrying and unexplained medical situation for her daughter, and a significant need to help the first applicant re-establish a bond with her daughter that will assist them both to recover.

Other aspects of the evidence 28 The other piece of evidence which should be noted is the evidence about the respondents' proposal to move the family to Taiwan. That is because the Commonwealth and the Taipei Economic and Cultural Office in Australia have entered into a Memorandum of Understanding, to facilitate people in Nauru such as the applicants to be medically evacuated to Taiwan for medical treatment. That Memorandum of Understanding was in evidence. The Memorandum of Understanding expressly states (see cll 5(a)(iii) and paragraphs 7, 18, 22 and 25.3 of the Operational Guidelines annexed to the memorandum) that Taiwan may accept an asylum seeker from a regional processing country only if that person consents to being taken there. Ms Peacock's evidence is that Taiwan is not a signatory to the Refugees Convention. 29 Ms Peacock's evidence is that the first applicant's husband has conveyed the first applicant's opposition to going to Taiwan. She is reported to have said to her husband that she would rather die in her bed in Nauru than go to Taiwan, and that she fears treatment in Taiwan based on stories from people on Nauru who have been treated in Taiwan and returned from Taiwan to Nauru. The husband has also told Ms Peacock that, as her guardian and father, he does not consent to the second applicant being transferred to Taiwan, and he does not consent to any arrangement which would separate the first applicant from her daughter.

Communications between the applicants' legal representatives and the respondents concerning the applicants' medical records 30 The applicants' legal representatives received the first applicant's IHMS records on 23 August 2018. They were current to 13 August 2018. Ms Peacock deposes that the medical records to which she has access show that the first applicant first presented to medical providers on Nauru with symptoms relating to her current urgent physical medical needs on 1 August 2018. 31 The applicants' legal representatives then communicated with the Minister directly on 26 August 2018, seeking that the applicants be urgently evacuated from Nauru. Mrs Peacock sent the respondents a copy of the report by Dr David Berger and a copy of assessment forms of Médecins Sans Frontières prepared in relation to the first applicant. On 27 August 2018, the applicants' legal representatives asked IHMS for the applicants' updated medical records, noting also that the first applicant's condition was deteriorating rapidly. Instead of responding to the suggestion from the applicants' legal representatives that the first applicant, her husband and her daughter be urgently medically evacuated to Australia, on the evidence the Minister continued to pursue the option of sending the first applicant and her family to Taiwan. More correspondence ensued, ending with the applicants' representatives sending a letter of demand on 31 August 2018. There was no proactive response from the respondents in relation to the treatment options put forward by the applicants' legal representatives, other than continuing to refer to the option of transferring the family to Taiwan. The condition of the first applicant's daughter came to the notice of the applicants' instructors on 28 August 2018. It was then that they sought Dr Bauert's opinion.

Resolution 32 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; DWE18 as litigation representative for DWD18 v Minister for Home Affairs [2018] FCA 1121; and EHW18 v Minister for Home Affairs [2018] FCA 1350. 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. 33 The issue before me was confined to the grant of interlocutory relief. The broader question of where the applicants should remain in the medium to longer term, so as to ensure their medical and psychiatric needs are properly and sustainably addressed, is not for the Court's determination on this application. I have made an order concerning reasonable notice prior to any removal from Australia, but given the medical evidence, there would seem no prospect of the first applicant in particular being fit to return to Nauru in the foreseeable future. 34 While none of the evidence has been tested, I was satisfied it provided a firm foundation for interlocutory orders. The medical records in relation to the first applicant make for sobering reading. Her daughter's more recent presentation is a cause for significant concern, especially in such a very young child. The three medical opinions are unanimous in their views about what needs to happen. 35 Accordingly, for the purposes of the interlocutory application, I found the applicants' claims that the respondents owe them 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 both of the applicants. I accepted, for the purposes of interlocutory relief, the applicants' claim that compliance by the respondents with their duty of care, in terms of its content, necessarily involved removing them from Nauru, and necessarily involved the first applicant's husband accompanying them, both as a carer to their daughter, a support for the first applicant, and as a person able to make decisions for both of them, at least about this litigation, but probably also about medical care and treatment. That is certainly the case for their daughter, as the first applicant is clearly in no state to make decisions for her, and probably also not for herself. 36 I also placed some weight on the need for ready access to face-to-face interpreters, to ensure that the first applicant could be effectively treated for both her medical and psychiatric conditions, and so she could - if well enough - give informed consent to any procedures. The evidence suggests her husband also needs an interpreter for anything beyond ordinary day-to-day communications, and communications about medical treatments and options certainly fall into this category. As I noted in EHW18, persons in the position of the first applicant, provided she is well enough, are no less entitled to understanding in a full and proper way the medical treatment proposed for her, her options and the likely risks and consequences of any such treatment, and professional face-to-face interpreting is required for any such significant communications. 37 As to the balance of convenience, I found the evidence readily established that there was a real likelihood of further harm occurring to both of the applicants, and I was also prepared to find that the nature of the harm included a serious risk that the first applicant may take her own life, or attempt to do so. There are substantial interests of the first applicant's daughter at stake: not only in herself being healthy and well cared for, but also in having a mother who is well and able to care for her, and to bond appropriately with her. There is a great deal at stake for this family, and the risk of harm, and risk of injustice, to both applicants if the interlocutory orders were not made was overwhelming. 38 I refer to my findings in EHW18 at [53] to [54], explaining why I give little weight to the fact that the Commonwealth would incur expense, and some diversion of its resources, in complying with the orders sought. Those findings are also relevant to the present application, and I adopted the same approach. 39 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. Senior counsel for the applicants sought an outer time limit in the orders by which the family needed to be brought to Australia. Counsel for the Minister had informed the Court that the family would be medically evacuated and that this would occur as soon as possible and perhaps as early as Saturday 1 September 2018. In those circumstances, I did not consider it appropriate to impose any specific time limits on the respondents. The Court is entitled to accept what is said by counsel on behalf of the Commonwealth and a Commonwealth Minister as accurate, and to rely on the respondents conducting themselves in accordance with what the Court has been told. This is a basic matter of respect between branches of government. Unless there is evidence that the actual situation differs from that presented to the Court, the Court should be able to expect that where it orders that something happen "as soon as practicable" or "as soon as reasonably practicable", when the subject matter of the orders are the lives, health and welfare of individuals, the Commonwealth and a Commonwealth Minister will act as quickly as they can to comply with those orders. ORDERS OF MORTIMER J (31 August 2018)

1. On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), that publication of any name of the applicants and their family members, or any information which would reveal or tend to reveal the identity of the applicants and their family members, be prohibited under s 37AF of the Federal Court Act.
2. The first applicant is to be identified as EMK18, the second applicant is to be identified as EML18 and the first applicant's husband is to be identified as EMM18.
3. EMM18 be appointed as the litigation representative of EML18 and, until further order and until the legal capacity of EMK18 can be clearly ascertained, as the litigation representative of EMK18.
4. As soon as reasonably practicable from the time of this order the respondents transfer EMK18, EML18 and EMM18 to a location in Australia where EMK18 and EML18 can be assessed at a tertiary hospital and can receive appropriate and necessary treatment, as recommended by the clinicians and practitioners assigned to treat them.
5. The respondents provide to the applicants' solicitors at least two clear business days' notice before taking any steps to remove EMK18, EML18 and EMM18 from Australia.
6. As soon as reasonably practicable and within three weeks, the respondents provide to the applicants' solicitors their complete medical records and all documents relating to their medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation: (a) Full medical reports; (b) All clinical/progress notes in respect of the applicants' medical conditions; (c) Copies of any recording or film or other test records in respect of the applicants' medical conditions including mental health; (d) Referral letters; (e) Specialist assessments; (f) Medical assessment records; and (g) Correspondence with the Department, officers, agents or delegates of the respondents in relation to the applicants' medical conditions and treatment.
7. The proceeding be listed for a case management hearing on a date to be fixed and agreed between the parties and the Court.
8. Costs be reserved. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mortimer.