The Salient Facts
70 It is necessary to record other salient facts and convenient to do that in chronological order. The evidence was almost entirely uncontroversial. There was a contest as to whether the applicant had consented to be taken from Nauru to Papua New Guinea and the quality of that consent. I will make some findings as to that issue. Otherwise, unless indicated to the contrary and insofar as the evidence dealt with the facts, the evidence which I recount is accepted.
71 Providing a full description of the evidence raises some sensitivity. Some of the facts concern information which is the subject of a non-publication orders made by me pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth). The information the subject of those orders is:
(a) the name of the Applicant.
(b) the boat identification number of the boat on which the Applicant first arrived in Australia.
(c) the age of the Applicant.
(d) the country from which the Applicant came [applicant's ethnicity], and the country in which the Applicant lived prior to her arrival in Australia.
(e) the procedure that the Applicant had when she was seven years old.
72 In view of the non-publication order, I have prepared two versions of my reasons for judgment, a redacted version for publication on the internet and a complete version which is to be provided to the parties.
73 The applicant is of XXXXXXXX ethnicity. She was born in XXXXX and is currently about XX years of age. At the age of about seven, she was subjected to XXXXXXXXX XXXX XXXX. An examination by Dr O'Connor, to whose evidence I shall later return, revealed a XXXX XXXXXX which Dr O'Connor defined as:
XXXXXXXXXX XXXXXXXXXXXX XXXXXXXXX XXXXXXXXX XXXXXX XXXXXX XXXXXX XXXXX XXX XXXXX XXXXX XXXXX XXXX X XXXXXXXXXXX
74 When the applicant was about 16, she witnessed her sister being murdered. She began to suffer seizures soon after. She had some schooling in XXXXXX and learned some English from watching TV. While 16, she was taken to XXXXXXX where her father had arranged her marriage to a 45 year old man with other wives. She was mistreated. She was severely abused, physically, sexually, and emotionally. She said she was bashed and beaten by her first husband. She described the marriage as "very bad". After several years and when pregnant with her first and only child, the applicant ran away to XXXXXX where her mother lived. Her son was born there.
75 The applicant's mother arranged her divorce from her first husband. The applicant met and married a second husband about two years later. Her second marriage was better. She returned to XXXX with her second husband, but her first husband tried to force her to return to him. Her first husband accused her of adultery and threatened to inform the government and XXX XXX. Assisted by her second husband, the applicant fled, fearing that she would be killed by stoning. She left her son with her mother. She sought refuge in Australia, where she thought she could be safe. With that objective, she travelled to Indonesia and then by boat to Australia. The applicant's son remains in XXXX in the care of the applicant's mother.
76 When taken from Australia to Nauru, the applicant was detained in a camp called "Regional Processing Centre - 3" ("RPC3"). The Minister participated in the detention, maintenance and care of the applicant whilst her claim for refugee status was being processed and paid for all aspects of her detention, care and maintenance during that period.
77 Whilst at RPC3, the applicant was housed in tented accommodation. She said she was provided with food and security by guards from "Wilson Security". She described her conditions there as very tough but secure. Health services were also provided to the applicant. IHMS records show that the applicant attended the IHMS clinic regularly, usually at least weekly and often more frequently. Appointments categorised as "mental health" commenced in November of 2013 and became regular thereafter. Furthermore, a case worker was allocated to the applicant whilst she resided at RPC3. She was also given the assistance of a lawyer to help her apply for refugee status. As I have said, it is admitted that the Commonwealth participated in the detention, maintenance, and care of the applicant, and paid for all aspects of her detention. I have already described the level of the Commonwealth's involvement in the applicant's detention.
78 On 11 November 2014, the applicant was found by Nauruan authorities to be a refugee within the meaning of the Convention relating to the Status of Refugees, as amended by the Protocol relating to the Status of Refugees ("the Refugees Convention"), and was granted a temporary settlement visa. At that point the applicant was given a document that confirmed that she had been given refugee status. From that time, she could travel anywhere on the island of Nauru. The document she was given did not enable her to leave Nauru.
79 As a refugee, she moved out of RPC3 and first lived in a house that she shared with eight other women. The Commonwealth has paid and continues to pay for the applicant's accommodation on Nauru. She had also been given a card that she used to obtain cash. She said that she was given an allowance of $200 but did not specify the period of time the $200 related to. Often because she was sick, the applicant's case manager from Connect, Ms Bernice Beaucaine, would bring her money. The money provided was used for basic needs such as food and clothing. The applicant met with Ms Beaucaine often.
80 The applicant found life in the house provided to her very difficult. The main difficulty was security. Thieves came in and stole the residents' belongings. As a result, the applicant was moved to other premises which she was told would be safer. Security guards were provided in the new premises but were ineffective. The guards were "always drunk". In the applicant's evaluation these premises were less safe.
81 I will deal with the medical evidence about the applicant in more detail later, but it is not in contest that the applicant suffers from epilepsy or a psychogenic disorder and has regular seizures. At the time that she lived outside of RPC3, the applicant had seizures often. The applicant could only describe what people told her about her seizures because she does not remember what happened to her whilst experiencing a seizure. If she experienced a seizure, people would call "emergency" and she would be given help. Sometimes she would be taken to the Settlement Clinic and sometimes she would be taken to the Republic of Nauru Hospital ("the Hospital"). Ordinarily, the applicant obtained her medicine from the Settlement Clinic. On occasions she was admitted into the Settlement Clinic and discharged after a day.
82 For the purposes of this proceeding, the Minister has admitted that in about February 2016, the applicant was raped while or shortly after suffering a seizure and became pregnant as a result. Other evidence, to which I shall shortly refer, suggests that the applicant was raped on 31 January 2016. The Minister has further admitted, again for the purpose of this proceeding only, that the applicant has suffered physical and mental harm and continues to suffer mental harm as a result of having been raped.
83 The applicant deposed that whilst having a seizure she was raped. She has no recollection of the rape itself. She realised she had been raped after it had happened. She came to that realisation because there was blood "in my body … and also … a lot of … male discharge". The applicant later reported to Dr O'Connor that the effects of the rape were vaginal bleeding and a painful perineum with no other physical injuries.
84 Further details of the rape are contained in a report produced by Connect on 31 January 2016. At approximately 12 noon on that day, the applicant contacted the on-call case manager to report that she had been raped. She told her case manager that she had stepped outside of her room to make a phone call and became unconscious due to a seizure. Transport to the Nauru Hospital was arranged by Connect. After initial medical testing, an assessment was conducted at the Hospital together with an initial counselling session conducted by the Victims Support Service. Thereafter, the applicant was taken to the Nauruan police force where she made a statement.
85 Dr Joseph Songco has been employed as a medical doctor by IHMS at the Settlement Clinic since May 2015. He deposed that he saw the applicant at the Settlement Clinic on 7 March 2016. She told him that she had missed her period. He asked whether she was pregnant and the applicant said she was not. There is some controversy as to whether Dr Songco asked the applicant to take a pregnancy test but the applicant did agree to an ultrasound being conducted and that occurred. Medical records show that an ultrasound was conducted on 18 March 2016. The ultrasound confirmed that the applicant was pregnant.
86 Also on 7 March 2016, Mr George Newhouse, the applicant's solicitor, emailed Dr John Brayley concerning the applicant. Dr Brayley is the Chief Medical Officer and Surgeon General of the Australian Border Force. Mr Newhouse attached a video of the applicant. He said that "[she] is at risk of serious injury. She is fitting regularly and cannot safely even cook for herself because she has fitted in the middle of cooking with the potential for a fire and burns." He said that "[s]he requires urgent trauma and psychological care, an assessment by a neurologist in relation to her fits and this should take place in Australia." He said that "[the applicant] was raped after collapsing after a Grand mal Fit. She has not been adequately cared for as a consequence. … It is obvious that she needs treatment in Australia."
87 On 8 March 2016, Dr Brayley said to Mr Newhouse that he had forwarded Mr Newhouse's email with attachments to a Regional Medical Director at IHMS.
88 Also on 8 March 2016, Dr Brayley emailed Mr Newhouse again and said that he had had a detailed conversation with Dr Peter Rudolph, the Medical Director for Offshore Centres. Dr Brayley said that Dr Rudolph had previously looked at the applicant's case but was "following up again today," and would provide to Dr Brayley an update. Dr Brayley said that he would be in touch with Mr Newhouse shortly - probably the following morning.
89 On 9 March 2016, Dr Rudolph emailed Dr Brayley concerning the applicant. The subject matter of the email was the applicant's seizures and how they ought to be diagnosed. Dr Rudolph said (inter alia) as follows:
As we discussed previously, the diagnosis of epilepsy is essentially a clinical diagnosis in Nauru as there is no access to EEG services; nor is there access to EEG services at PIH [Pacific International Hospital, Port Moresby]. I suppose that Mr Newhouse and Dr Newman need to be aware that [the applicant] is now a Nauruan refugee who will receive good quality primary care and mental health support via the Settlement clinic but will be reliant on the Nauru Hospital for specialist services in accordance with Nauru community standard - and there are obvious limitations when compared to Australian standards.
90 More emails were exchanged as between Dr Rudolph and Dr Brayley on 9, 11, 12, and 14 March 2016 but these are not of any particular moment. As part of the same email chain, on 14 March 2016 Dr Jo Holdaway, a Medical Director of Mental Health Service at IHMS, emailed Dr Brayley. Relevantly, she said this:
There is also a significant and potentially contentious issue of service delivery to refugees 'to a Nauruan standard' and the harm potentially created by providing services to refugees that would not be also available to Nauruans (such as weekend welfare visits), and the lack of automatic right by the Australian government to refugee clinical information.
These complex issues certainly complicating [sic] this case - but too complex to debate in email. It is not simply a case of IHMS leading this patients [sic] care in the same way that might happen on the mainland.
Perhaps this is the type of case we could usefully spend an hour discussing as an example of a complex case, in one of the new Clinical Governance forums.
91 Two days earlier, on 12 March 2016, and in a different email chain, Dr Brayley emailed Mr Newhouse, saying (amongst other things) that the applicant was booked in for a "comprehensive review by a senior IHMS doctor on Tuesday", i.e. on 15 March 2016. An email later that day from Dr Brayley to Mr Newhouse advised the latter that a pregnancy test would be offered to the applicant.
92 Also on 12 March 2016, the email chain containing the two emails to Mr Newhouse was forwarded to Dr Rudolph.
93 On 17 March 2016, as part of the same chain of emails, Dr Brayley emailed Dr Rudolph asking whether there was "any news" about the applicant's comprehensive assessment, which had occurred two days prior. Dr Brayley had received information from a Ms Pamela Curr, concerning the applicant, to the effect that the applicant had been told that she was pregnant, and that she wished to have the pregnancy terminated. He requested that that information be confirmed as accurate.
94 In reply, on 17 March 2016 at 4:46 pm Dr Rudolph emailed Dr Brayley. It does not appear that he had yet confirmed whether the applicant was pregnant. The email is lengthy and not all of it need be set out. He commenced thus:
As you have indicated, further information is required regarding the pregnancy plus a clear indication from the patient as to her wishes and I believe that this is taking place.
Also, as you are aware, if this or any other refugee wishes to have a termination of pregnancy, serious legal and ethical questions are raised. Whilst in Australia termination of pregnancy is widely accepted as an appropriate therapeutic intervention, in Nauru termination of pregnancy is illegal. One might also assume that an individual, as part of the acceptance to become a refugee in a particular country, also accepts to abide by the laws of that nation. Therefore any refugee in Nauru seeking to obtain a termination of pregnancy or others (including health professionals) facilitating the process may be considered as participating in a felony and may be charged; in addition, the action may be seen as an insult to Nauru which has kindly agreed to take these individuals as refugees and allowed Australian government officials and Australian government contractors (e.g. IHMS) to work in Nauru under Nauruan laws and regulations.
Dr Rudolph continued, later in the same email, as follows:
With regard to [the applicant's] seizures: whilst the assessment this week was not that of a specialist in seizures, it was undertaken by a very experienced general practitioner. The physical examination was normal and it was recognised that there is a significant functional component to the presentation. However, certain elements of the history are such that epilepsy cannot totally be ruled out. As we previously discussed, if this lady were in Australia, she would have an EEG and probably admitted to a neurology ward for observation if the EEG was inconclusive. As you know, this is not available in Nauru and referral to the Nauru hospital for 'specialist' assessment was totally unsatisfactory. There is no EEG or neurology capability at PIH either. Under the current arrangements for specialist medical care for Nauruan refugees, [the applicant] will not get the care that I believe she requires (using Australian standards as a baseline); nor would a Nauruan local with the same presentation for that matter. If she were a transferee, there would be additional options although I suspect that ultimately IHMS would be requesting transfer to Australia for EEG and possible admission to a neurology ward for observation to identify a definitive diagnosis (and institute appropriate treatment).
95 On 18 March 2016 at 11:12 am, Dr Brayley replied to Dr Rudolph's email, saying (inter alia) the following:
I can reply in more detail at a later stage - we certainly have details of the laws in different countries.
I haven't seen it as inconsistent that Nauru while not offering termination of pregnancy through its own health system is prepared to see people travel to another country for this procedure similar to a practitioner in one hospital who conscientiously objects and refers a patient to another hospital.
PNG has been prepared to provide this procedure subject to a review of the circumstances of each patient to ensure that their legal requirements are met.
96 Also on 18 March 2016, at 9:19 pm, Mr Newhouse emailed Dr Brayley saying that he was extremely concerned about the fact that the applicant was pregnant and required a termination, and said that he "wonder[ed] whether her case could be fast tracked."
97 On 19 March 2016 at 10:24 am, Dr Brayley replied to Mr Newhouse's 18 March email, saying that Dr Brayley was aware of the applicant's request for a termination of pregnancy, that he expected that the overseas medical referral for that termination would be "actioned expeditiously by the doctors and manager on Nauru at the IHMS settlement clinic" and that he would confirm that.
98 On 21 March 2016 at 9:00 pm, Dr Rudolph replied to Dr Brayley's 18 March email, extracted under [95] above. Dr Rudolph's email states that the applicant received an ultrasound on 18 March 2016 and the ultrasound showed that she was pregnant. He also said that the "IHMS mental health team will be following [the applicant] up in relation to her psychological state and the IHMS gynaecologist will be following [the applicant] up in relation to the viability of the pregnancy and [the applicant's] intentions."
99 On 22 March 2016 at 12:02 pm, Dr Brayley emailed Mr Newhouse saying that the applicant had undergone an ultrasound on 18 March 2016 and was confirmed to have a "very early pregnancy," which could not be identified as viable or dated as yet. He said that a repeat ultrasound was planned in around 1-2 weeks. He indicated that an IHMS gynaecologist would follow up with the applicant in relation to the pregnancy's viability and the applicant's intentions, and that a mental health team would follow up with the applicant concerning her mental state.
100 As earlier stated, there is some conflict in the evidence about whether the applicant was taken by the Minister from Nauru to Papua New Guinea for the purpose of having an abortion with her consent or her informed consent. The following evidence is recounted including because it is relevant for resolving that issue.
101 The applicant deposed that sometime after the ultrasound was conducted, she went to the Hospital because she wasn't feeling well. At that time she was told she was pregnant. It was suggested to the applicant that a female doctor, Dr Sewell, informed her that she was pregnant and that she told Dr Sewell that she wanted to have an abortion. The applicant did not recall any appointment with any female doctor. She said she told Dr Songco that she wanted an abortion. The applicant denied that during the appointment suggested to her with Dr Sewell she was told by a mental health officer that an abortion might take place in Papua New Guinea. The applicant insisted in her evidence that she had only discussed an abortion with two male doctors, Dr Songco and another doctor whom she called "Dr Nick". On her evidence each of those doctors had said to her that she would be going to "a third country" to have an abortion. She denied that she had been told that an abortion might take place in Papua New Guinea and that she had said that she did not care, that she just wanted the abortion or words to that effect.
102 The Minister did not call Dr Sewell. He relied upon a record of an appointment for the applicant at the Settlement Clinic. The record appears to detail a consultation that "Sewell SMD" had with the applicant. It does provide some foundation for the allegations put in cross examination as to what the applicant was told, but the record is not clear. There are other records in evidence which support the Minister's position that the applicant was seen by a psychologist Ms Margaret La Freng on 21 and 23 March 2016, and also on 30 March 2016, and a psychiatrist Dr Argyle on 24 March 2016. I accept that in those consultations an abortion was discussed with the applicant. To the extent that that evidence contradicts what the applicant said in cross examination, I prefer the documentary evidence.
103 Whilst the following evidence of Ms Noora Ali supports a finding that a mental health officer said an abortion might take place in Papua New Guinea, neither Ms Ali or the record of the appointment with Dr Sewell suggests that the comment was made whilst the applicant saw Dr Sewell.
104 Ms Ali is an interpreter working in Nauru. She deposed that she remembered translating for meetings or appointments that the applicant had on at least two occasions. She does not remember the dates of those meetings. She recollects that one was at the applicant's home and that the other was at the Hospital. She recalls that each meeting was with a person from the Settlement Clinic mental health unit and a psychologist. Ms Ali deposed that she recalls that the applicant told the mental health unit person and the psychologist that she was pregnant. She described to them how the pregnancy had happened. The applicant said that she wanted to have an abortion as soon as possible. Ms Ali does not recall a reply given to the applicant but thinks that something was said along the lines that they would do their best or that they needed to work on it. Ms Ali also deposed that on the second occasion she translated for the applicant. The applicant again said she was pregnant and that she wanted to have an abortion as soon as possible. The applicant said it needed to happen quickly. Ms Ali recalls that the mental health unit person said that maybe the abortion would happen in Papua New Guinea. Ms Ali deposed that the applicant said in response that she didn't care, wherever.
105 The applicant accepted that during an appointment with Dr Songco she was given some forms to sign. She did not recall the date of the meeting but other evidence confirms that the appointment occurred on 22 March 2016. The two forms in question are in evidence. The first is headed "Consent for Medical Transfer to Port Moresby". Relevantly it purports to record the applicant's agreement to "transfer to Port Moresby for the purposes of medical treatment/investigation". The document states:
I have made this decision on my own free will, with no threat or punishment made to me. I understand I will return to Nauru upon completion of medical treatment/investigation.
There is no issue that the signature of the applicant is shown on the form. The form is dated 23 March 2016.
106 The second form is headed "Consent to Share Medical Information". This form also contains the applicant's name and her signature. It records the following consent:
I give my consent for Pacific International Hospital (PIH) &/ Port Moresby General (POMG) Hospital to share my personal medical information with the Department of Immigration and Border Protection, the Australia Border Force, and International Health and Medical Services, whilst I am undergoing treatment or assessment in the PIH or POMG Hospital.
The form is dated 22 March 2016.
107 The applicant denied that prior to arriving in Papua New Guinea, she had any understanding that she would be transferred to Papua New Guinea in order to have an abortion. She said that prior to arriving in Papua New Guinea she did not know where Port Moresby was. She said that she did not read either of the consent forms when she signed them. Although she accepted that an interpreter was present during her appointment with Dr Songco, she denied that the content of the consent forms had been interpreted for her. Her evidence was that Dr Songco discussed with her health issues including her mental health, her seizures and her dental health and told her that these would be addressed in another country and that she needed to sign the consent forms. To the applicant's recollection, she signed both of the consent forms at the same time. She did not recall coming back on a later occasion to sign one of the forms. She denied that Dr Songco read out the content of the forms and told her that by signing the forms she was agreeing to a medical transfer to Port Moresby. She insisted that all that Dr Songco did in relation to the forms was point to the spot on the forms where she should put her name and sign.
108 Dr Songco deposed that he had an appointment with the applicant on 22 March 2016. Prior to the appointment, another doctor at the Settlement Clinic had told him that the appointment had been made because the applicant was going to be transferred to Port Moresby so that she could receive an abortion and that she needed to sign the consent forms to be transferred. He said he had not spoken to the applicant about the abortion and was not involved in the decision to transfer her to have that procedure. It is not in dispute that the applicant attended the appointment with her case officer and an interpreter. Dr Songco says that at the beginning of the appointment the applicant told him that she wanted to have an abortion as soon as possible. He deposed that he did not discuss the abortion procedure itself with her. He said that he told the applicant that he had been informed that she was to be transferred "to another country" to have the abortion done. He deposed that he then gave the interpreter the consent form for the transfer to Port Moresby and the second consent form for the sharing of medical records. He deposed that he then told the applicant that the forms "were for her to be transferred to Port [Moresby] General Hospital, for the abortion". He asked the interpreter to translate the consent forms and for the applicant to put her name and signature on the forms if she agreed. He further deposed that he heard the interpreter reading both consent forms to the applicant. When the interpreter had finished he saw the applicant print her name on the consent form for the sharing of medical information and saw her sign that form. He says he also saw her print her name on the consent to be transferred to Port Moresby. However, he deposed that the applicant did not sign the consent to be transferred form and that he did not notice that at the time. The forms were then given back to Dr Songco and he deposed that he asked the applicant about her condition. He discussed referrals with the applicant and ultimately referred her to a psychologist, a psychiatrist and also an obstetrician/gynaecologist.
109 Dr Songco deposed that, later, when he realised that the consent to transfer form had not been signed he contacted the applicant and asked her to come in the next day to the Settlement Clinic. He said that she came in on 23 March 2016 for her appointment with the psychologist. Before that appointment he spoke to her and again told her that she had forgotten to sign the second consent form. He said he gave her the form and asked her to sign it. He deposed that she then wrote her name on the form and signed it. The applicant was not accompanied by an interpreter on 23 March 2016.
110 There is one possible inconsistency in Dr Songco's evidence. He said that he saw the applicant print her name on the consent to transfer form on 22 March. He also said that she did that again on the next day. That is unlikely and inconsistent with what appears on the form. However, Dr Songco was not cross examined. I have no reason to reject the substance of his account of his meetings with the applicant on 22 and 23 March 2016. But, given the applicant's background and limited education, I do not have a basis for disbelieving the applicant's evidence that she did not know at the time where Port Moresby was. Perhaps the name Papua New Guinea might have been more familiar to her but nothing in what was said to her either by Dr Songco nor in the consent forms mentioned by name the country of intended destination. Nor, given her state of mental health at the time, would it be surprising if the applicant misunderstood the detail of what was being put to her.
111 The evidence does support a finding that the Minister offered and the applicant agreed to be taken to another country so that her pregnancy could be terminated. There is no suggestion that the applicant was removed from Nauru against her will or misled as to where she would be taken. The evidence does not support a finding that the applicant was offered a choice of destinations, or had any choice other than that provided by the Minister, as to obtaining a termination of her pregnancy. It was not in contest that an abortion was not safe and lawful in Nauru, and could not be there obtained. The Minister admitted that it would not be possible for the applicant to obtain an abortion without the assistance of the Commonwealth. In other words, if an abortion was to be procured, the Commonwealth had to procure it in a country other than Nauru. The evidence does not support a finding that the applicant was given any opportunity to make an informed decision that Port Moresby was an appropriate location for the abortion that she desired. Dr Songco was told that the applicant "was going to be transferred to Port Moresby" before he saw her. He was not there to consult with the applicant about possible alternatives and did not do so. Nor did he explain to the applicant the standard of care that would be available to her or say anything about the lawfulness of the applicant's pregnancy being terminated in Papua New Guinea. Whilst the applicant gave her consent to be taken to another country, she did not give her approval to having an abortion in the medical and legal setting in relation to which she now complains. In that regard she did not give informed consent.
112 When a refugee requests a termination of pregnancy, a Request for Medical Movement ("RMM") is prepared by IHMS. It is approved by an IHMS Medical Director, and submitted to the Offshore Health Operations Section ("Operations Section") of the Detention Services Division ("Division") of the Australian Border Force for approval. That is consistent with cl A.2.2(a)(viii) of Sch 1 to the Agreement entered into between the Commonwealth and IHMS, which provides as follows (emphasis added):
A.2.2 The Services available to Refugees under the Agreement, to be delivered by the Service Provider in the Nauruan community at the Settlement Health Clinic(s) on a needs-basis, comprise:
a. Primary Health Services (available to Refugees for the duration of the Agreement, or as advised by the Department):
...
viii. facilitation of timely transfer of Refugees for urgent medical care not available in Nauru, location and extent of which to be agreed by the Department, and where required and available provide Referral to an appropriate medical assistance provider and medical escort services.
113 An RMM contains the following information:
(1) the refugee's personal information including name and date of birth;
(2) the refugee's current location;
(3) the recommended timeframe for movement;
(4) the recommended destination for medical treatment;
(5) the reason for referral; and
(6) the refugee's provisional diagnosis and relevant medical history.
114 On receipt of an RMM, an officer of the Australian Border Force checks the request to ensure that all required details have been provided. The officer checks scheduled upcoming charters, timetables for visiting medical specialists, and "Departmental policy about medical transfers". If "everything is in order," the request is escalated for approval, ultimately to the First Assistant Secretary of the Division.
115 Mr Nockels is the First Assistant Secretary of the Division. Mr Nockels has been in his position since 4 April 2016. Prior thereto, he was Commander of the Immigration and Customs Enforcement Branch of the Australian Border Force. That involved the management of around 130 investigators in Australia's capital cities. Investigations focused on customs and immigration offences, including importation of prohibited items and identity fraud. Earlier, commencing in around January 2014, he had been Assistant Secretary in the Offshore Infrastructure Branch. He described his expertise as being "primarily around public policy."
116 A responsibility of the Operations Section is the arrangement of medical transfers and medical evacuations of transferees and refugees located in Nauru and Manus Island in Papua New Guinea. This requires liaison with Australian Border Force health officers in those locations, as well as with IHMS.
117 It is ordinarily Mr Nockels's responsibility to determine whether an RMM should be approved. If approved, the Operations Section informs IHMS by email of the approval and informs other areas of the Department which organise transfer logistics and government approvals. The Operations Section is not responsible for informing a refugee about transfer details.
118 Mr Nockels's expectation was that IHMS would make an RMM only after a refugee had been fully informed of their medical condition and health care options, and had consented to the treatment proposed by IHMS. He stated that it was not the role of the Operations Section to discuss a refugee's health care options or treatment plan with a refugee.
119 On 4 April 2016 at 4:52 pm, Ms Antonia Graham, registered nurse with IHMS, emailed "RPC HLO" - which evidently stands for "Regional Processing Centre Health Liaison Officer" - attaching an RMM, described in the email as being "semi-urgent." That RMM contained under a heading "Clinical Condition of Client, Treatments to Date & Recommendations" a statement to the effect, "IHMS are requesting urgent transfer to Australia … ." The evidence was that the reference to Australia was a mistake. At 5:11 pm the same day, Ms Graham sent another email to RPC HLO saying "[a]pologies for the mistake!" and attaching an updated RMM in relation to the applicant. The updated RMM appears to be identical save that the first line of the "Clinical Condition" section read "IHMS are requesting urgent transfer to Port Moresby." I will call the updated RMM sent 4 April 2016 "the First RMM."
120 The First RMM gave 1 April 2016 as the date of recommendation. It was authorised by Dr Rudolph. The "Recommended Destination" was "Pacific International Hospital - PNG (based on DIBP policy to utilise PIH where possible)." The applicant's "provisional diagnosis" was a gestational age as at 1 April 2016 of 7 weeks. Under the "Clinical Condition" heading, the First RMM provided thus (emphasis added):
IHMS are requesting urgent transfer to Port Moresby on behalf of [the applicant] for the requested procedure. Termination of pregnancy (TOP) is not legal in Nauru. As per update provided to IHMS by ABF on 28/01/16; ABF have advised that Pacific International Hospital have agreed to perform the termination of pregnancy for transferees and refugees. As per ABF - PIH are able to perform the requested procedure under current legal requirements.
A medical termination of pregnancy is a safer way to terminate an early pregnancy using medication instead of surgery. A medical termination of pregnancy can only be performed when the pregnancy is less than 7-9 weeks depending [on] the provider's protocol, after which surgical termination would be required.
Should there be delays in performing the termination of pregnancy at an early stage, there are increased risks of mental health issues as well as intraoperative and post-operative complications such as bleeding and infection. [The applicant] is also at risk of significant mental health issues prenatally and postnatal which includes potential risks of post-natal depression and disengagement from the baby, should the termination not proceed.
121 Lower in the RMM, under the heading "Pacific International Hospital Treatment Options" appears the following:
Comments: Termination of pregnancy is not legal in Papua New Guinea unless two doctors agree a woman life [sic] is at risk. ABF have advised that Pacific International Hospital have agreed to perform the termination of pregnancy for transferees and refugees. As per ABF - PIH are able to perform the requested procedure under current legal requirements.
122 On 4 April 2016 at 5:22 pm, Ms Karen Newton, the Assistant Director, Health Capability and Scrutiny Section, of the Australian Border Force, emailed Ms Leonie Nowland, an Assistant Secretary within the Detention Health Services Branch of the Australian Border Force. Ms Newton attached an "approval spreadsheet" in relation to the applicant. The content of the spreadsheet appears to have been drawn from the First RMM. In particular, under a heading "Clinical Summary," there appeared everything that I have set out under [120] above.
123 Also on 4 April 2016, Ms Nowland forwarded the approval spreadsheet, and it seems also the First RMM, to Mr Nockels, saying "Please see attached for your approval; I have approved this at my level." Mr Nockels approved the First RMM at 6:38 pm that day.
124 "PIH" is reference to the Pacific International Hospital located in Port Moresby. PIH is a private hospital which operates 24 hours a day, seven days a week, and provides a range of private emergency and hospital services. It has specialists in general surgery, general medicine, thoracic, orthopaedics, cardiology, urology, ear, nose and throat, ophthalmology, anaesthesia, radiology, dental, paediatrics and OBGYN. The hospital has 79 beds and four fully-equipped operating theatres and a catheterization laboratory. The theatres are fully staffed, including by three anaesthetists and specially-trained nurses and technicians. There is also a maternity wing, a blood bank service, laboratory services and medical imaging facilities. PIH is licensed by Papua New Guinean authorities as a "Level 7" hospital which is the highest level of tertiary health care facilities available in Papua New Guinea. Transferees and refugees from Manus Island and Nauru are regularly treated at PIH and staff at the hospital are familiar with the use of interpreters and cross-cultural treatments. All four operating theatres at PIH are fully equipped for a surgical abortion, including with suction cutterage equipment.
125 As Mr Nockels records in his affidavit, "[t]he Operations Section then took steps to add the applicant to the next available charter … and to liaise with PIH about the Applicant. In particular, on 5 April 2016, Ms Carol Crivici contacted Dr Sapuri at PIH about the applicant … ."
126 On 5 April 2016, at 10:01 am, Ms Crivici of the Australian Border Force emailed Dr Kishor Pujari and Dr Mathias Sapuri, both of PIH. The email contained the following:
I would like to enquire about the ability for PIH to treat a patient who is currently a refugee on Nauru and is requesting a termination of pregnancy. Below is the summary of her current condition:
• the patient is a XX year old female
• the patient is approx. 7 weeks and 4 days pregnant (as of 05/04/2016)
• patient has requested the procedure, advice received overnight from IHMS on Nauru indicates a decline in the patients mental health (self harm attempt).
IHMS have also provided clinical advice indicating that the patient is at risk of significant mental health issues prenatally and postnatal which includes potential risks of post-natal depression and disengagement from the baby, should the termination not proceed.
Also on 5 April 2016, Dr Pujari asked Dr Sapuri to respond to the inquiry
127 On 5 April 2016 at 11:45 am, Dr Sapuri replied, saying (inter alia) as follows:
I am happy to assist and PIH can manage this case as we have done in the past. Please send me details of the self harm report. This is necessary to comply with our Laws in PNG.
128 On 5 April 2016 at 12:10 pm, Ms Crivici responded to Dr Sapuri's email. She provided the self-harm report and said that she would "advise transfer details as soon as they have been confirmed." Dr Sapuri responded that same day that he was "[h]appy to progress as planned" and that he would book a room at PIH, on being told the applicant's arrival time.
129 Dr Sapuri said that "since that time," a Dr Rageau had reviewed the applicant's case and agreed that the termination was necessary to preserve her life. Also, Dr Sapuri had considered the psychiatric assessment report of a Dr Priscilla Nad, dated 9 April 2016, in relation to the applicant, which stated that the applicant had an Adjustment Disorder with Depressive Features and Acute Stress Disorder.
130 Mr David Thompson is an officer of the Australian Border Force stationed in Nauru who is employed as part of its Nauru Operations Support area. On the morning of 5 April 2016, he received an email telling him that the applicant was to be included on a charter flight travelling to Papua New Guinea and leaving on 6 April 2016. He included the applicant's name on the manifest for the 6 April flight. Also on the plane were seven other people who had been determined to be refugees. Mr Thompson made a number of arrangements in relation to the applicant's travel. He contacted and obtained from IHMS a fitness to travel certificate in relation to the applicant. He arranged for Connect to bring the applicant to the airport. He prepared a Statement of Identity document for the applicant. Such a document is required to allow a person travelling to leave Nauru and to enter another country.
131 On 6 April 2016, Mr Thompson travelled to the airport with another Australian Border Force officer. He met with the applicant and her case manager and provided the applicant with a boarding card and a consent form relating to the applicant's medical records. He told the case manager that it was important that she go through all parts of the card and the consent form with the applicant and that these be completed and signed. After witnessing the case manager talking to the applicant with an interpreter, although not hearing the conversation, Mr Thompson deposed that the signed card and consent form were returned to him and he countersigned the passenger card. He then assisted with checking in the luggage of the applicant after clearing immigration. He gave to the applicant her Statement of Identity document which he had prepared.
132 The applicant confirmed that she was brought to the airport by her Connect case manager. She said that at the airport she was met by a man and a woman from Australian Immigration. I presume the man was Mr Thompson. She was given a "paper" by the Immigration officials. She stated that she did not know where she was going. She did not initially remember signing any document at the airport. However on being shown an outgoing passenger card, the applicant agreed that her signature appeared on that document. She accepted the card as the document that the two immigration officers had asked her to sign. The applicant denied that the document had been given by the immigration officers to the interpreter and that it had been interpreted to her. The boarding pass in question was in evidence. Next to the subject "Country of destination", a hand written entry is made which mistakenly states "Port Moresby". The applicant deposed that she boarded the plane.
133 When the plane landed she was met by a "security lady" who took her from the airport to the hotel. This person was called Susie and worked for "Wilson".
134 The Minister admitted that the Commonwealth facilitated the applicant travelling to Papua New Guinea including by facilitating the transport of the applicant from the airport in Port Moresby to a hotel in Port Moresby, procuring a visa for the applicant to enter and remain in Papua New Guinea for the purpose of having an abortion, and admitted that the Commonwealth has paid all costs of and incidental to the applicant's travel to, and care and maintenance in, Papua New Guinea. Furthermore, the Minister has admitted that the Commonwealth made arrangements for the applicant to have an abortion in Papua New Guinea.
135 On 7 April 2016 a Writ of Summons was filed in the High Court of Australia. The transcript of the hearing before Keane J shows it commenced at 3:28 pm and ended at 3:56 pm. Before that, at 12:56 pm an email had been sent by Ms. Crivici to "IHMS Assistance", copying various others including Ms Newton and Ms Nowland, saying "[p]lease suspend (halt) all arrangements for medical appointments or procedures for [the applicant] at PIH." Perhaps that was done upon the respondents becoming aware of the commencement of proceedings.
136 On 7 April 2016 interim orders were made by Keane J. On 14 April 2016 I made similar orders and set down a timetable to hearing.
137 The applicant deposed that since arriving in Port Moresby she has been living in a hotel. Food is delivered to her by Wilson Security. She is provided with three meals a day. The security guards have a master key to her room which they use to enter her room if it is locked. After arriving in Port Moresby two people came to see the applicant and said to her that she was going to have an abortion. She deposed that she told those persons about her other issues and was told that she would have all of her other health matters checked. Some ten days prior to giving her evidence the applicant deposed that she felt sick. Her illness was noticed by the security guards who took her to the hospital. The evidence of Dr Sapuri confirms that she was taken to PIH. The applicant's recollection of events at PIH are unclear. She deposed that she was not well and has little recollection of what occurred. She was told by the security guards at the hotel and others that whilst at PIH she removed a drip that had been inserted into her hand and left the hospital. She has no recollection as to how she got back to the hotel.
138 On 12 April 2016 at 3:42 pm, Mr Ben Willis, an Assistant Director of the Health Capability and Scrutiny Section of the Australian Border Force, emailed "IHMS Assistance" concerning the applicant's case. He asked for a response to the following questions (errors in original, emphasis added):
1. Was [the applicant] afforded adequate psychological counselling prior to agreeing for the terminations of pregnancy procedure, please provide details of recent psychiatric assessments.
2. Could you please confirm there is a qualified neurologist to treat [the applicant's] epilepsy at PIH, PNG and on her return to Nauru.
3. If [the applicant] wishes to proceed with the terminations of pregnancy what steps will be taken and what support will IHMS provide.
RE: terminations of pregnancy at PIH
Grateful if you could advise on the following:
1. Current psychological counselling services at PIH, PNG
2. What are the requisite steps to be taken in order to facilitate a termination in PNG
3. Can a termination be lawfully perform under PNG law
139 On 13 April 2016 at 3:41 pm, Ms Sybil Wishart, the Director of Corporate Affairs for IHMS, sent a rather lengthy email in reply to Mr Willis's. Ms Wishart said as follows in relation to Mr Willis's question concerning whether there was a neurologist at PIH:
Specialist neurology services are not currently available at PIH or on Nauru. Furthermore, electroencephalograms (EEGs) are not able to be performed at PIH or on Nauru. An MRI brain could be performed at PIH however this comprises only one part of the work-up for epilepsy. It should be reiterated that epilepsy is just one possible diagnosis that might explain [the applicant's] history / presentations she has not been definitively diagnosed with epilepsy.
Ms Wishart said as follows in relation to Mr Willis's question in relation to psychological services:
PIH does not currently offer psychological counselling services. Mental health support will be provided by IHMS clinicians in POM [Port Moresby].
Importantly, she said as follows in relation to Mr Willis's question concerning legality of abortion under Papua New Guinean law (emphasis added):
IHMS has previously expressed its concern to the Department around the legality of performing terminations of pregnancy under PNG law. It is our understanding that such procedures are illegal unless certain conditions are met. The Department has advised IHMS that PIH is responsible for ensuring that any termination it provides is in accordance with PNG law and any other relevant PNG Government and medical authority requirements and that if PIH, following clinical review, accepts a patient for termination of pregnancy, then IHMS is not to concern itself with the legality or otherwise of the procedure. Please refer to supporting attachments.
140 There is then a reference in Ms Wishart's email to a "separate email" from Mr Willis of 13 April 2016. That email does not appear to be in evidence. However, Ms Wishart's email adopted the course of re-stating, in bold type, the questions that she had been asked by Mr Willis in his email and so it appears that the question Mr Willis asked in his separate 13 April email was as follows:
4. In your response to this request could you please confirm the below.
To my understanding grounds on which termination of pregnancy is permitted in PNG:
To save the life of the woman Yes
To preserve physical health Yes
To preserve mental health Yes
Rape or incest No
Foetal impairment No
Economic or social reasons No
Available on request No
Additional requirements:
A legal abortion is permitted within 12 weeks of gestation. It should be performed by a registered physician in a government health-care institution.
To that, Ms Wishart replied as follows:
IHMS has on numerous occasions requested clarification from DIBP as to grounds on which termination of pregnancy is legal in PNG. IHMS has not recommended terminations of pregnancy in PNG due to lack of confirmation. Please refer to supporting attachments.
141 On 15 April 2016 the applicant filed her statement of claim. That statement of claim included allegations, inter alia, that:
(1) the applicant suffers from epilepsy or psychogenic disorder and has regular seizures, was subject to XXX as a child;
(2) the applicant was raped while or shortly after suffering a seizure, became pregnant as a result, and as a consequence had suffered and continued to suffer serious mental and physical harm;
(3) the Commonwealth had a duty of care to procure for her a safe and lawful abortion;
(4) a safe and lawful abortion required a surgical abortion carried out with reasonable care and skill, after receiving proper psychiatric and neurological examination and counselling, and with the necessary neurological, surgical, and anaesthetic expertise made available to her;
(5) abortions were legal in Papua New Guinea only if performed in good faith and with reasonable care and skill, for the preservation of the mother's life, and where reasonable having regard to the patient's state at the time and all the circumstances of the case; and
(6) a safe and lawful abortion could not be procured in Papua New Guinea.
142 The applicant's material, including expert reports, was filed on 21 April 2016. That included the reports of Professor Louise Newman, Professor Caroline de Costa, Dr Miriam O'Connor, Assoc. Professor Ernest Somerville, and Dr Gregory Purcell.
143 On 22 April 2016 at 6:06 pm, Ms Laura Zhai, a Co-ordinating Registered Nurse with IHMS, emailed "RPC HLO", copying Dr Rudolph, saying:
Please find attached, updated RMM, Summary of Clinical Risks and obstetric USS report for [the applicant].
Transfer to Australia.
144 Attached was a document dated 22 April 2016 headed "Summary of Clinical Risks." It contained the following:
The risks to [the applicant] if she is not transferred for the termination are risk of deterioration in mental health and increased psychological distress. [The applicant] has expressed thoughts of self-harm if her pregnancy is not terminated. These mental health issues will be significant in the antenatal and postnatal period.
[The applicant] will require transfer to Australia to undergo the termination of pregnancy. [The applicant] is currently 9 weeks and 5 days as confirmed by obstetric ultrasound on 18/04/16. Her pregnancy is beyond the timeframe for a medical termination of pregnancy, therefore a surgical termination will be required.
Surgical termination is associated with higher clinical risk with post-operative complications such as bleeding and infection. These risks increase with gestational age.
It is therefore recommended [the applicant] is transferred as soon as possible, in order for this procedure to occur.
145 Also attached was an RMM ("Second RMM"). It continued to be dated 1 April 2016, but under the heading "recommended destination," the words "Pacific International Hospital - PNG (based on DIBP policy to utilise PIH where possible" had been struck out and "Australia" inserted. Further, under the "Clinical Condition" heading, underneath the material that had been set out in the First RMM (quoted at [120] above), there had been inserted a further three paragraphs, as follows:
Update 19/04/16:
[The applicant's] gestational age is currently 9 weeks and 5 days as confirmed by obstetric ultrasound on 18/04/16. [The applicant] has verbalised that she would like to proceed with the previously requested termination of pregnancy.
IHMS are requesting urgent transfer to Australia on behalf of [the applicant] for the requested procedure. Termination of pregnancy (TOP) is not legal in Nauru.
Further delays in performing the client's requested termination of pregnancy will lead to increased risks, as previously outlined. These include mental health issues as well as intraoperative and post-operative complications such as bleeding and infection. [The applicant] is also at risk of significant mental health issues prenatally and postnatal which includes potential risks of post-natal depression and disengagement from the baby, should the termination not proceed (Update compiled by IHMS CRN, M Enrile; Approved by OPC MD Dr Katie Gardner).
146 There had been other minor alterations including that under the heading "In-patient admission," information relating to PIH had been deleted and "Hospital: TBC" inserted.
147 Mr Nockels's evidence was that the Operations Section had been in close contact with IHMS about the applicant's situation after her transfer to Port Moresby, but "there was no indication from IHMS", as far as he was aware, "that they were considering amending their recommended destination for the applicant's medical treatment."
148 Mr Nockels then arranged a meeting for the following day with Mr Damien Johnson, the Operations Director - Offshore at IHMS, Ms Nirvana Luckraj, the Medical Director - Offshore at IHMS, and Ms Nowland, to discuss the updated RMM.
149 At around 3:00 pm on 23 April 2016, a teleconference occurred between those people. Mr Nockels said that he wanted to understand why IHMS had changed its recommendation. Mr Johnson and Ms Luckraj said that the amended recommendation was due to the applicant now requiring a surgical rather than a medical abortion, and also because a delay in the termination could "impact her mental health issues." Mr Nockels said that "it was not clear to [him] that the Applicant's situation had changed aside from her pregnancy being more advanced." He asked IHMS to make the basis of its opinion clear in writing. He also asked IHMS to advise whether there were countries other than Australia where the applicant could undergo a termination procedure.
150 A few hours later, at 5:30 pm on 23 April 2016, Ms Graham of IHMS emailed "RPC HLO", Ms Nowland, and Mr Nockels, attaching an "updated urgent recommendation for movement" ("Third RMM"). The Third RMM was the same as the Second RMM except that, under the "Clinical Condition" heading and under the 19 April update, had been inserted these paragraphs:
Update 23/04/16:
[The applicant's] gestational age is currently 10 weeks and 3 days as confirmed by obstetric ultrasound on 18/04/16.
IHMS wish to advise DIBP that an urgent solution needs to be found to accommodate [the applicant's] request to have a termination of pregnancy as a legal abortion is permitted within 12 weeks gestation in PNG. The mental health risks are greater the longer the pregnancy proceeds against her will.
[The applicant] could be referred to a country where her termination could be facilitated with her full consent and the minimum requirements that a termination would be accepted within the legal regulatory framework of that country, with all necessary visa and entry requirements in place as the standard pre-requisite for transfer to a third country.
(Update compiled by IHMS Senior Medical Director, Dr. N. Luckraj)
151 Mr Nockels said in his affidavit that the Third RMM "did not explain to [his] satisfaction why the amendment to the recommendation destination was required." He continued:
In particular, it still did not make clear what had changed in terms of the Applicant's medical condition or circumstances such that an urgent transfer to Australia was needed. The further updated RMM also did not address whether there were countries other than Australia in which the Applicant could potentially receive the medical treatment she requires. Further, it had also been my understanding that an abortion could be legally carried out in PNG after 12 weeks' gestation, and I was uncertain whether the reference in the RMM to 12 weeks was correct.
152 He also considered the applicant's medical evidence, as filed in the proceeding. He said, "In light of these uncertainties in the updated RMM, and the clinical issues raised by the medical evidence in this proceeding, I have decided that I require more information and further input from Dr Brayley and the relevant medical practitioners at PIH before making a decision about the recommendation in the updated RMM." As at the making of his affidavit on 25 April 2016, he said that he was "in the process of seeking that information."
153 At around 8:00 pm on 25 April 2016, Mr Nockels telephoned Dr Sapuri to discuss the applicant's case. He said, "Dr Sapuri explained to me that PIH had the necessary facilities and resources to perform a surgical termination of pregnancy on the Applicant." He continued:
He also mentioned that he had performed the procedure around 1 month ago on a woman who had been transferred from Nauru, and that there had been no complications. I asked Dr Sapuri if it was his understanding that 12 weeks' gestation was the legal limit in PNG for a termination of pregnancy to be performed. Dr Sapuri told me that he could perform the operation up to 20 weeks' gestation.
154 Mr Nockels read the affidavit of Dr Sapuri filed in this proceeding. At [5] of his second affidavit, Mr Nockels said that, "based on [his] discussion with Dr Sapuri and [his] understanding of the facilities and resources at PIH, I am satisfied that the applicant can obtain the medical treatment that she requires to terminate her pregnancy in PNG".
155 On 26 April 2016, Mr Nockels decided to reject a request that the applicant be transferred to Australia for the purpose of her having an abortion in this country. At 9:02 pm that day, he wrote to Ms Graham of IHMS, saying this:
I refer to your email below (23 April 2016 at 5.30pm) and the updated Request for Medical Movement. I note your 'Recommended Destination' of 'Australia'.
After careful consideration, I am still of the the [sic] view that the Pacific International Hospital in PNG remains the appropriate place for [the applicant's] treatment, and accordingly I do not propose to follow your recommendation at this time.
156 On 28 April 2016 Mr Nockels affirmed his second affidavit which detailed the matters set out in the previous three paragraphs. On 29 April 2016 he gave oral evidence in this proceeding. In his oral evidence he indicated that, because of information that had come to his knowledge during the course of the proceeding, he intended to speak further with IHMS and Dr Sapuri and consider whether he abided by his original decision.
157 Later that evening, sometime around 6:30 pm, I was informed from the bar table by Senior Counsel for the Minister that Mr Nockels had looked at the further material and decided not to change his position on the proposal to bring the applicant to Australia.