FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection  FCA 63 (9 February 2018)
AYX18 v Minister for Home Affairs  FCA 283 (6 March 2018)
In two recent interlocutory matters, the Federal Court has ordered the Australian Government to remove refugee children from Nauru to Australia in order to receive appropriate mental health treatment.
In both cases, the children began to suffer severe psychological and psychiatric symptoms after their release into the Nauruan community, culminating in acts of self-harm and attempted suicide. Despite repeated consultations with the Australian Government’s health service contractor on Nauru, and recommendations that they be removed to Australia for appropriate inpatient mental health treatment, the Minister for Home Affairs (Minister) refused to transfer the children.
In their urgent interlocutory applications, the applicants relied heavily on the legal principles articulated in Bromberg J in Plaintiff S99/2016 v Minister for Immigration and Border Protection  FCA 483 (‘Plaintiff S99/2016’). In both cases, the Court agreed that the Commonwealth owed the children a duty of care to provide appropriate mental health care treatment, and that it was appropriate to grant a mandatory interlocutory injunction to compel compliance with the requisite standard of care.
FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection
The applicant, by her litigation representative, brought an application for an urgent interlocutory injunction to require the Minister for Immigration and Border Protection, the Australian Government and the Secretary of the Department for Immigration and Border Protection (together, the Respondents) to remove the applicant from Nauru to a place where she could receive specialist child mental health care treatment in an inpatient setting.
The applicant was a young girl who, together with her parents, fled her country of origin and travelled by boat to Christmas Island in 2013. By that fact they were ‘unauthorised maritime arrivals’ (UMAs) under the Migration Act 1958 (Cth) (Migration Act) and, pursuant to the Migration Act, were removed and detained in the regional processing centre on Nauru. The authorities later assessed the applicants to be refugees and they were released to reside in the community on Nauru with temporary settlement visas.
In early 2017, the applicant’s mental health began to deteriorate. Over the ensuing months, she began to experience increasing anxiety, intrusive thoughts and hallucinations, and reported hearing voices telling her to self-harm and complete suicide. Over the course of repeated consultations with doctors and psychologists at the clinic run by IHMS – the contractor providing health services on Nauru on behalf of the Commonwealth – the applicant was assessed as having an ‘adjustment disorder’ which could be adequately addressed in the community on Nauru without specific inpatient mental health treatment.
In December 2017, the applicant twice attempted suicide. Following the second attempt, an independent child psychiatrist reviewed the applicant’s case and concluded: “The child is in need of immediate comprehensive psychiatric health assessment by a qualified specialist in child psychiatry [and] treatment in an inpatient child mental health facility”. No such facilities are available on Nauru.
Following this, the applicant’s representatives made numerous attempts to persuade the Respondents that she must be urgently transferred from Nauru to a place where she could receive appropriate treatment. The Respondents denied those requests.
At an urgent hearing on 22 December 2017, Murphy J granted the injunction and ordered that the Respondents remove the applicant from Nauru to a place where she could receive appropriate mental health care treatment. His Honour later provided written reasons addressing the applicable legal principles.
The legal rights which the applicant seeks to have determined
The applicant alleged that in the exercise of its powers under the Migration Act (and/or the executive power under s 61 of the Constitution) the Commonwealth owes her a duty of care because it:
- transferred her from Australia to Nauru pursuant to the Migration Act;
- maintains a significant involvement in the day-to-day operation of regional processing activities on Nauru; and
- maintains a significant involvement in her day-to-day healthcare, education, housing and welfare.
The applicant alleged that the Commonwealth was in continuing breach of its duty of care because it had failed to provide her with access to safe and appropriate medical facilities and treatment. As a result of that breach the applicant had suffered, and continued to suffer, significant psychiatric harm and was exposed to the risk of further serious harm including death.
In support of her contention, the applicant relied upon the existence and nature of the statutory power and a number of ‘salient features’ identified in Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 NSWLR 649. These included:
- foreseeability of harm – the applicant was a young child at risk of suicide;
- control – under the arrangements with Nauru, the Respondents had significant over the factors able to prevent harm to her;
- vulnerability – the applicant was a young girl unable to take steps to protect herself;
- reliance – the applicant was reliant on the Respondents for a place to live, for appropriate mental health care treatment and for all the necessities of her life; and
- assumption of responsibility – the Respondents had assumed responsibility for the applicant’s mental health through its arrangements with Nauru and by providing her with assistance in relation to her mental health through those arrangements.
The applicant submitted that these factors supported the existence of a duty of care, the scope of which included a duty to provide her with appropriate mental health treatment.
A serious question to be tried
For the purposes of the interlocutory application, the Respondents conceded that a prima facie case existed. Murphy J took this as a concession that there was a serious question to be tried that:
- the respondents owe the applicant a duty of care to provide her with a level of medical care reasonably designed to meet her mental health care needs;
- that the content of the duty includes an obligation to remove her from Nauru to a place where she can be admitted for appropriate mental health care treatment; and
- that the Court has the power to grant the injunction sought.
It was therefore unnecessary for the Court to deal further with this issue. However, his Honour noted that many of the considerations underpinning the decision of Bromberg J in Plaintiff S99/2016 applied in the present case - these included close factual similarities between the cases and the existence of the ‘salient features’ described above.
The balance of convenience favours granting the injunction
The Respondents argued that the balance of convenience weighed against granting the injunction. Murphy J disagreed. His Honour noted that the evidence demonstrated that the applicant posed an extreme suicide risk which required immediate admission to a specialist child mental health facility. Such specialist care is not available on Nauru. His Honour also expressed his scepticism that the Commonwealth’s existing processes and arrangements were adequate to protect the applicant.
His Honour noted that were the injunction granted and the applicant ultimately unsuccessful at trial, at best it can be argued that the Commonwealth’s financial resources have been wasted. If it were not, there was an extreme risk that the applicant’s mental health would further deteriorate and that she would complete suicide. In that event, the relief sought would be rendered nugatory. In his Honour’s view, the very real possibility of fatal consequences for the applicant if the injunction were refused carried far more weight than the Commonwealth’s wasted expenditure, and he therefore made orders granting the relief sought.
AYX18 v Minister for Home Affairs  FCA 283
The applicant (AYX18), by his litigation representative, brought an application for an urgent interlocutory mandatory injunction to require the Minister to immediately remove him and his mother from Nauru to Australia so that he may receive specialist psychiatric care.
In 2013 AYX18, a 10-year old boy, travelled with his mother on a boat from Iran that was intercepted in Australian waters. As such, both were UMAs and were taken to Christmas Island and later Nauru pursuant to the Migration Act. In 2014, both were granted temporary settlement visas and released to live in the Nauruan community.
After moving into the community, AYX18’s mental health began to deteriorate. By October 2014 he had experienced a two-week episode of suicidal ideation together with other threats of self-harm. He was also suffering from a physical health condition that caused him severe chronic pain. While treatable, surgery on Nauru was not recommended and the Australian Government refused the IHMS recommendation that he be transferred to Australia for the procedure.
In early 2018, AYX18 attempted suicide and was admitted to hospital. While in hospital, he made two further attempts. He was then examined by a child psychiatrist, who concluded that he was suffering from a chronic, major depressive illness and required “specialist child psychiatry assessment, monitoring and treatment … attended by staff that have the specialist skills and resources to assist children in crisis who have underlying serious and complex mental health needs”. It was recommended that AYX18 be removed to Australia to receive treatment in an appropriate child psychiatric facility. The Minister denied that request.
On the facts, Perram J noted that the case was very closely analogous to both Plaintiff S99/2016 and FRX17. As the legal principles to be applied for the interlocutory injunction were the same as in FRX17, his Honour accepted that the applicant had made out a sufficiently arguable case. His Honour therefore granted the injunction, ordering that the Minister transfer AYX18 and his mother immediately from Nauru to Australia to receive specialist inpatient child psychiatric care.
The duty of care owed by the Commonwealth to UMAs in regional processing countries
Both of these decisions affirm, and build upon, the legal principles developed by Bromberg J in Plaintiff S99/2016 in relation to the nature and scope of the duty of care owed by the Commonwealth to UMAs in regional processing countries. In that case, the applicant alleged that the Minister owed her a duty of care to procure a safe and lawful abortion, and sought an injunction to compel the Minister to move her to Australia where she could receive such a procedure. His Honour concluded that the Minister owed the applicant a duty of care, which required him to exercise reasonable care in discharging the responsibility he had assumed to procure a safe and lawful abortion for her.
In AYX18, the Minister argued that Plaintiff S99/2016 was effectively limited to its facts because Bromberg J did not decide broader question whether UMAs - as a class - are owed a general duty of care by the Commonwealth. However, for both Perram J in AYX18 and Murphy J in FRX17, this was beside the point. In Plaintiff S99/2016, critical to Bromberg J’s finding that a duty of care was owed was the very substantial contribution made by the Commonwealth to the conditions of existence of UMAs on Nauru. By virtue of the regional processing arrangements, the applicant in that case “had no means of survival independent of the services provided by the Commonwealth through its Service Providers. She was dependent on upon the Commonwealth for her very existence” (at , emphasis added). In the view of Perram J, the existence of this ‘relationship of dependence’ was the critical contextual factor (or ‘salient feature’) that gave rise to a duty of care in the circumstances. As such a relationship also clearly existed in relation to the applicants in AYX18 and FRX17 (and indeed, arguably exist in relation to all UMAs in that class), their Honours respectively did not consider Plaintiff S99/2016 to be relevantly different for the purposes of finding that a duty of care was owed.
In this respect, the cases represent an important development in the law concerning the Australian Government’s legal responsibilities to asylum seekers and refugees subject to regional processing arrangements. In accordance with established principles of common law, the courts are unwilling to accept that the Commonwealth may effectively abdicate its responsibility for the due care of such persons merely because they are out of jurisdiction. Through the statutory scheme erected by the Migration Act - and the complex web of arrangements comprising the offshore processing regime - the Commonwealth voluntarily assumes effective control over the lives of those falling within its purview. As Bromberg J stated in Plaintiff S99/2016, that regime:
…“erects or facilitates a relationship” [c.f. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at ] between the Commonwealth and UMAs, in which the Commonwealth is empowered to provide assistance in relation to the processing in the regional processing country of protection claims of UMAs made under the Refugees Convention. The Commonwealth may or may not enter that relational field (at ).
To the extent the Commonwealth does, however, enter that field, these cases make clear that it will be held to account in accordance with the duties and standards of care required by the common law.
The Court’s power to grant injunctive relief
Importantly, the cases also affirm the finding in Plaintiff S99/2016 that the courts have power to grant injunctive relief in relation to apprehended or continuing torts committed by the Minister in connection with the offshore processing regime. In Plaintiff S99/2016 the Minister argued that, despite the finding of a breach of duty, the Court was barred from granting a mandatory injunction to compel the Minister to take appropriate action in relation to the applicant. The Minister argued that to issue a mandatory injunction would be to require the Commonwealth to take actions authorised by ss 198B or 198AHA of the Migration Act – such actions being ‘private clause decisions’ under s 474 of that Act. Section 474 precludes a private clause decision from being ‘subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account’.
Bromberg J rejected the proposition that to issue an injunction in the circumstances would violate the ouster clause in s 474. After a review of the case law and extrinsic materials applicable to the Migration Act, his Honour concluded that the “general purpose and policy of [the] provision” is concerned with judicial review (at ). To that end, “[c]onsistently with the principle of legality, ‘irresistibly clear words’ would be required” before the Court would construe s 474 as precluding the issue of injunctive relief in the case of a tortious wrong.
The Court’s power to grant the injunction sought was still at issue in both FRX17 and AYX18. However, the decision in both cases to follow S99/2016 on this point demonstrates that despite the efforts of legislators, the courts continue to take a strict approach to construing provisions that purport to oust their jurisdiction to grant relief to an injured party– especially where a failure to do so would yield “irrational and draconian” results that are “inconsistent with fairness” and depart from long-established principles of common law and equity (Plaintiff S99/2016 at ).
The full decision in FRX17 can be found here.
The full decision in AYX18 can be found here.
James Campbell is a Solicitor at King & Wood Mallesons.