CDO19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2019] FCA 890
•12 June 2019
FEDERAL COURT OF AUSTRALIA
CDO19 v Minister for Immigration, Citizenship and Multicultural Affairs
[2019] FCA 890
File number: NSD 898 of 2019 Judge: FLICK J Date of judgment: 12 June 2019 Catchwords: PRACTICE AND PROCEDURE – application for mandatory interlocutory injunction – principles relevant – serious question to be tried – balance of convenience – injunction granted to require the Respondents to transfer Applicant to Australia where Applicant can be provided with urgent medical treatment
PRACTICE AND PROCEDURE – Departmental decision that Applicant should be transferred to Australia – contrary medical assessments being made in Nauru – utility in granting injunction – Respondent Minister already engaged in taking active steps to give effect to Departmental decision
Legislation: Migration Act1958 (Cth) ss 198AB, 198AD, 198B, 476A, 494AB, Pt 8
Federal Court Rules2011 (Cth) r 30.01
Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46, (2006) 227 CLR 57
AYX18 v Minister for Home Affairs [2018] FCA 283
BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618
BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 761
ELF18 v Minister for Home Affairs [2018] FCA 1368
EUB18 v Minister for Home Affairs [2018] FCA 1432
Plaintiff S99/2016 v Minister for Immigration & Border Protection [2016] FCA 483, (2016) 243 FCR 17
R v Ross-Jones; Ex parte Green (1984) 156 CLR 185
Date of hearing: 7 and 11 June 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 32 Counsel for the Applicant: Mr C Lenehan with Ms L Coleman Solicitor for the Applicant: Colin Biggers & Paisley Counsel for the Respondents: Mr P M Knowles Solicitor for the Respondents: Australian Government Solicitor ORDERS
NSD 898 of 2019 BETWEEN: CDO19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS
First Respondent
COMMONWEALTH OF AUSTRALIA
Second Respondent
JUDGE:
FLICK J
DATE OF ORDER:
12 JUNE 2019
THE COURT ORDERS THAT:
1.As soon as reasonably practicable and within 72 hours the Respondents shall take all reasonable steps to cause the transfer of the Applicant from Nauru to a location in Australia where the Applicant can receive access to treatment as an inpatient at an Australian tertiary hospital, if clinically indicated with access to an accredited interpreter as required during the course of treatment, with such steps including but not limited to the following:
(a)seeking, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral Committee on the basis of an updated assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Shek (of 21 February 2019 and 17 April 2019) and the report of Dr Sullivan (dated 19 March 2019), including (without limitation) by engaging with medical specialists at the Republic of Nauru Hospital as appropriate; and
(b)making an application to the Nauruan Ministry of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Referral Process dispensed with or to secure uplift approval as referred to in the affidavit of Mr Timson sworn on 11 June 2019.
2.The Respondents, whether by their officers, servants, agents, contractors or otherwise, shall not take any steps to return the Applicant to Nauru pending the outcome of the present proceedings unless otherwise agreed between the parties or by further order.
3.By 5.00pm on 17 June 2019, the parties are to refile any documents that have been filed since the commencement of these proceedings that require redactions (or further redactions) in accordance with the non-publication orders issued in these proceedings.
4.Liberty to apply.
5.Costs reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FLICK J:
The Applicant in the present proceeding is identified by the pseudonym CDO19. He arrived in Australia as an unauthorised maritime arrival in July 2013.
The Republic of Nauru has been designated as a “regional processing country” pursuant to s 198AB(1) of the Migration Act1958 (Cth) (the “Migration Act”). In approximately January 2014, the Applicant was compulsorily removed to Nauru pursuant to s 198AD of the Migration Act. On 26 March 2019, the Applicant’s solicitors were informed that an officer of the Respondent Minister’s Department had decided that the Department would “take all reasonable steps to organise the transfer of [the Applicant] as soon as possible…”. In very summary form, the Applicant claimed that his mental health was deteriorating to the extent that he required treatment which was not available on Nauru and only available on the Australian mainland. The decision made on 25 March 2019 was one presumably made pursuant to (at least in part) s 198B of the Migration Act. But the Applicant remains on Nauru.
On 3 June 2019 the Applicant lodged in this Court an Originating Application and a Statement of Claim, which were accepted for filing on 6 June 2019. The First Respondent was named as the Minister for Immigration, Citizenship and Multicultural Affairs; the Commonwealth of Australia was named as the Second Respondent. The Statement of Claim pleads (inter alia) that the Respondents “at all relevant times owed, and continue to owe, the Applicant a duty of care to exercise the powers under the Act (as vested in the Minister) and/or the executive power of the Commonwealth with reasonable care by discharging the responsibility that they assumed…”.
An Interlocutory Application was also sought to be filed. An Amended Interlocutory Application was filed in Court on 7 June 2019. The principal relief there sought was expressed as follows (without alteration):
…
3.As soon as reasonably practicable and within 48 hours the Respondents shall take all reasonable steps to
causeensure the Applicant is transferredof the Applicantfrom Nauru to a location in Australia where the Applicant can receive access to treatment as an inpatient at an Australian tertiary hospital, with access to an accredit interpreter as required during the course of treatment.4.The Respondents, whether by their officers, servants, agents, contractors or otherwise, shall not take any steps to return the Applicant to Nauru pending the outcome of the present proceedings unless otherwise agreed between the parties or by further order.
The hearing of the Amended Interlocutory Application was adjourned from 7 June to 11 June 2019 to enable the Minister to consider the application and file evidence.
It is concluded that interlocutory relief should be granted, albeit in a form different to that as sought in the Amended Interlocutory Application.
The principles to be applied
The principles to be applied in circumstances where an Applicant seeks interlocutory relief are well-established.
In summary form, there are two interrelated question – first, whether an Applicant has established a prima facie case or a serious question to be tried; the second, being an assessment of the balance of convenience: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622 to 623 per Kitto, Taylor, Menzies and Owen JJ. The interrelationship between the questions is such that where the balance of convenience favours a respondent the stronger must be the prima facie case that the applicant must establish; conversely, the stronger the balance of convenience favours the applicant, then the strength of the prima facie that must be established diminishes: Australian Broadcasting Corporation v O’Neill [2006] HCA 46 at [19] and [65] – [72], (2006) 227 CLR 57 at 68 to 69 per Gleeson CJ and Crennan J; at 83 to 84 per Gummow and Hayne JJ.
Where the interlocutory relief which is sought extends beyond the preservation of the status quo and seeks mandatory relief, particular attention needs to be given to the strength of an applicant’s case: BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060 at [9] per Bromberg J.
A preliminary question – jurisdiction
The Respondents’ formal position is that this Court has no jurisdiction with respect to such matters. The absence of jurisdiction is said to arise by reason of s 494AB of the Migration Act. The only Court that has jurisdiction, so the Respondents’ contend, is the High Court of Australia. The only jurisdiction that this Court could entertain, so the Respondents’ contend, would be in respect to a proceeding commenced in the High Court and remitted by that Court to this Court.
Section 494AB provides in relevant part as follows:
Bar on certain legal proceedings relating to transitory persons
(1)The following proceedings against the Commonwealth may not be instituted or continued in any court:
(a) proceedings relating to the exercise of powers under section 198B;
…
(2) This section has effect despite anything else in this Act or any other law.
(3)Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.
…
Whether or not the present proceeding falls within s 494AB(1)(a) is not, with respect, susceptible to an easy answer. On one view, the present proceeding is not one “relating to the exercise of powers under section 198B” – that power has already been exercised and the present proceeding is simply one seeking to compel the Respondent Minister to give effect to the decision taken on 25 March 2019. An opposing view, founded upon the width of the phrase “relating to”, is also available.
The question as to the jurisdiction of this Court to entertain claims comparable to those advanced in the present proceeding has also arisen in other cases, including in FRX17 as litigation representative for FRM17 v Minister for Home Affairs (VID1388/2017). On 1 March 2019, an order was made in that proceeding pursuant to r 30.01 of the Federal Court Rules2011 (Cth) raising for resolution the question as to whether s 494AB precluded that proceeding being instituted or continued in this Court. Those questions were the subject of a hearing before three Judges of this Court on 7 May and 8 May of this year. Judgment has been reserved.
For present purposes, it is sufficient to note that:
(a)the Respondents do not dispute that in the circumstances of the present case the Court has jurisdiction to grant urgent interlocutory relief: cf. BKP19 v Minister for Immigration, Citizenship and Multicultural Affairs (No 2) [2019] FCA 761 at [12] to [14] per Robertson J. His Honour there relied upon the observations of Gibbs J in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 202 that where there is a question as to jurisdiction “it may be right to keep matters in statu quo by the grant of an interlocutory injunction”; and
(b)other Judges of this Court have assumed jurisdiction in like cases: cf. AYX18 v Minister for Home Affairs [2018] FCA 283 (“AYX18”); ELF18 v Minister for Home Affairs [2018] FCA 1368 (“ELF18”).
It may nevertheless be presently observed that an action seeking to enforce a common law duty of care or to question the manner in which the executive power of the Commonwealth is being discharged is not self-evidently a proceeding falling within the exclusion in s 494AB(1)(a). The more so is that the case where the Respondents have already decided that the Applicant should be returned to Australia for medical treatment.
Albeit a matter which is not pleaded, in circumstances where the Minister has already decided that the Applicant should be brought back to Australia pursuant to s 198B of the Migration Act, it could also be suggested that the Minister has thereby assumed a duty (perhaps incidental to the exercise of a statutory power) to take all reasonable steps to secure his return. A proceeding seeking to enforce the decision of the delegate of the Respondent Minister made on 25 March 2019 and possibly a duty thereby assumed by the Minister, may not fall within the exclusion of jurisdiction of this Court by reason of either ss 494AB or 476A of the Migration Act. For the purposes of s 476A, such a proceeding would not be a proceeding in the nature of “judicial review”, namely the subject matter of Pt 8 of the Migration Act. Such a cause of action may overlap with that which is presently pleaded but would potentially be a separate and distinct cause of action.
It thus accepted that, for the purposes of resolving the present urgent interlocutory application, the Court has jurisdiction to make an appropriate order.
A serious question & balance of convenience
The question as to whether there is a serious question to be tried as to whether the Minister owes a duty of care to those compulsorily removed to a regional processing country has been addressed in a series of decisions in this Court.
Although the existence of a duty of care and breach necessarily depends upon the facts and circumstances of each individual case, a series of decisions of this Court have, for the purposes of an interlocutory application, been satisfied that there has been established a serious question to be tried in circumstances where the health and safety of an applicant has been made out: e.g., AYX18 [2018] FCA 283 at [24] – [28] per Perram J; ELF18 [2018] FCA 1368 at [60] per Mortimer J; cf. Plaintiff S99/2016 v Minister for Immigration & Border Protection [2016] FCA 483 at [250] to [252], (2016) 243 FCR 17 at 85 per Bromberg J (“Plaintiff S99/2016”).
In the present case it is similarly concluded that there is a serious question to be tried and that the balance of convenience favours the grant of the mandatory relief sought when consideration is given to both:
·the email of 26 March 2019 stating the “Department’s delegate” had approved the transfer of the Applicant to Australia and that the Department would “take all reasonable steps to organise the transfer of [the Applicant] as soon as possible…”; and
·the medical assessment of the Applicant being that his condition is deteriorating.
For the purposes of the latter consideration, it is sufficient to refer to two medical reports.
The first report is that of Dr Annie Shek, a Consultant Psychiatrist at the Mater Hospital in Brisbane. Dr Shek provided on 21 February 2019 an expert’s report “based only on the clinical documentation”. Dr Shek has not had the opportunity to assess the Applicant personally. Albeit subject to that qualification, Dr Shek expressed the following opinion:
4.D Does [the Applicant] require urgent review and treatment at an appropriately certified Australian hospital?
It is my opinion that [the Applicant] requires urgent review and treatment at an appropriately certified Australian hospital.
It is my opinion that [the Applicant] requires continuing psychiatric assessment and treatment given he is highly symptomatic, in distress, and is at high risk of self harm and suicide.
He will also require continuing treatment if he is still symptomatic with orchitis and cellulitis.
[The Applicant] has already had four years of community treatment available in Nauru with no documentation of any clinical improvement. In addition, he has deteriorated acutely in the last four months due to multiple concurrent new stressors. The risk of self harm has increased.
Although [the Applicant] has had access to mental health clinicians, psychologists and psychiatrists, he has not responded significantly to various medication combinations and supportive psychotherapy.
…
It would be very difficult to treat [the Applicant’s] depression while he continues to be immersed in the very stressful environment that is the primary contributor to illness. This factor alone would indicate that treatment be best provided in an Australian hospital.
The second report is that of Dr Danny Sullivan, a Consultant Forensic Psychologist. Dr Sullivan had the benefit of a video conference with the Applicant (and an interpreter) on 16 March 2019. His report is dated 19 March 2019 and concludes, in part, as follows (without alteration):
[42][The Applicant’s] reported self-harm and suicidal ideation appear related to distress. He has no overt protective factors since the death of his mother, and does not describe any personal affiliation which might influence him not to harm himself. Notwithstanding the melodramatic aspect of his descriptions of self-harm, his ideation, hopelessness and lack of protective factors places him at clearly escalated chronic risk of completed suicide. I do not think this would be ameliorated by medication in the longer term.
[43]Due to his risk of suicide, I would recommend initial treatment would be as an inpatient in a hospital which had access to psychiatry, psychology and mental health nursing as well as to occupational therapy staff. He also requires a specialised psychosocial chronic pain intervention; sometimes a rehabilitation focussed setting will offer all of these modalities, or a day hospital program with attached accommodation. It is likely he would require some months of intervention, but not necessarily as an inpatient so long as followup was available and he was engaged in treatment. If he declined engagement and remained suicidal, consideration could be given to involuntary treatment under mental health legislation (if he met local criteria).
For present purposes it is sufficient to conclude that there is a serious question to be tried as to whether the Respondent Minister has failed to discharge a duty of care owed to the Applicant by failing to have him removed from Nauru to Australia for treatment. It is not of present relevance to determine or form any preliminary view as to whether the Respondents may owe a more broadly expressed duty of care to those who arrive in Australia and are compulsorily transferred offshore. Such was the like conclusion of Perram J in AYX18 [2018] FCA 283. His Honour was there referred to the decision of Bromberg J in Plaintiff S99/2016 and concluded:
[26]The Minister submitted that his Honour did not decide the broader question of whether unauthorised maritime arrivals (or, more formally, transitory persons) were owed a duty of care. I accept that but it is beside the point. As in S99/2016 the evidence suggests an arguable case that the boy and his mother are dependent on the Commonwealth either directly or indirectly for their survival and sustenance. Further, there appears to be an arguable case that it is the Minister who is providing the medical care which the boy has been receiving (either directly or indirectly). If that be arguable then it is arguable also that if the Minister wishes to be engaged in the medical treatment of persons such as the boy, it should do so competently.
In circumstances where the Minister has already approved the removal of the Applicant from Nauru for treatment in Australia, and where the medical evidence continues to support the necessity to have the Applicant brought to Australia, there is a serious question to be tried as to whether the Minister is currently in breach of the duty of care he owes. The balance of convenience clearly favours relief substantially in the form sought.
Potential administrative difficulties which may be faced by the Respondents in securing his removal are not sufficient to occasion the refusal of relief. As noted by Mortimer J in EUB18 v Minister for Home Affairs [2018] FCA 1432:
[35]On the evidence — or at least on the instructions conveyed to the Court by the respondents’ legal representatives — the position of the government of Nauru remains one that is capable of interfering with the respondents being able to carry out the orders of this Court. That, however, is a matter for the government of Nauru and, if at all, for a political resolution as between it and the Commonwealth of Australia.
[36]The Commonwealth has created this situation by establishing an arrangement of this kind for regional processing with another sovereign state. Having elected to do that, there inevitably may be risks about the decision-making of that sovereign state from time to time. Those arrangements, at least on an urgent application such as this, cannot and should not stand in the way of orders being made to preserve the life and wellbeing of an individual such as the applicant, as much as is possible on the Court being persuaded that the balance of convenience favours that occurring.
The order sought by the Applicant in the present case is one which requires the Respondent Minister to “take all reasonable steps…”. That qualification is a sufficient answer to any administrative difficulties which may be encountered as a practical matter in securing the Applicant’s removal to Australia.
One further cause for reservation should be expressly addressed. The evidence presently relied upon by the Respondents establishes a concerted effort already being undertaken by officers of the Minister’s Department to secure the return of the Applicant to Australia. Those administrative steps include compliance with the Health Practitioners (Overseas Medical Referrals Compliance) Regulations 2019 (Nauru), assuming those Regulations are presently in force. Those Regulations involve (inter alia) the assessment in Nauru of a person’s medical health by an Overseas Medical Referral Committee (“OMR Committee”). The impasse seems to be that the medical assessments being undertaken on behalf of the OMR Committee, and the advice that it is being given, is that the Applicant can be adequately treated in Nauru. The review being undertaken by the authorities in Nauru is ongoing. The assessments made by Drs Shek and Sullivan, of course, is to the contrary to the OMR Committee’s own medical assessments. What more, contends Counsel on behalf of the Respondents, can be done other than to repeatedly press those in Nauru to allow the Applicant to leave.
The impasse, with respect, is not adequately answered by not making any order. The impasse is to be met by trying to give specific content to the steps which the Respondents should undertake to give effect to the order to be made. Those steps include requiring the Respondents to pursue all reasonable steps to secure the return to Australia of the Applicant, those steps including but not limited to:
(a)seeking, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral Committee on the basis of an updated assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Shek (of 21 February 2019 and 17 April 2019) and the report of Dr Sullivan (dated 19 March 2019), including (without limitation) by engaging with medical specialists at the Republic of Nauru Hospital as appropriate; and
(b)making an application to the Nauruan Ministry of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Referral Process dispensed with or to secure uplift approval as referred to in the affidavit of Mr Timson sworn on 11 June 2019.
CONCLUSIONS
The formal submission of the Respondents that this Court lacks jurisdiction to make the interlocutory order sought is noted. But no submission was made that this Court could not (in the circumstances of the present case) make an order – assuming that a serious question to be tried was made out and if the balance of convenience favoured the making of such an order.
In circumstances where this Court has assumed jurisdiction and granted relief in other like cases, it is presently considered that there is no reason to now refrain from making an order which attempts to secure the mental and physical health of the Applicant. It would be inappropriate to attempt to conclusively determine on an interlocutory basis the Respondents’ submissions as to jurisdiction.
There is a serious question to be tried and the balance of convenience favours the grant of mandatory relief.
The Respondents’ acceptance that there is a serious question as to whether there is owed a duty of care to the Applicant is solely for the purposes of the present interlocutory application. At any final hearing, Counsel for the Respondents expressly reserved his position to contend that no duty of care was owed.
Costs of the interlocutory application should be reserved.
THE ORDERS OF THE COURT ARE:
1.As soon as reasonably practicable and within 72 hours the Respondents shall take all reasonable steps to cause the transfer of the Applicant from Nauru to a location in Australia where the Applicant can receive access to treatment as an inpatient at an Australian tertiary hospital, if clinically indicated with access to an accredited interpreter as required during the course of treatment, with such steps including but not limited to the following:
(a)seeking, whether by the Respondents’ officers, servants, agents, contractors or otherwise, to have the Applicant’s case considered by the Overseas Medical Referral Committee on the basis of an updated assessment which draws to the Committee’s attention the conclusions and recommendations in the reports of Dr Shek (of 21 February 2019 and 17 April 2019) and the report of Dr Sullivan (dated 19 March 2019), including (without limitation) by engaging with medical specialists at the Republic of Nauru Hospital as appropriate; and
(b)making an application to the Nauruan Ministry of Health and/or the Nauruan Ministry of Multicultural Affairs to have the Overseas Medical Referral Process dispensed with or to secure uplift approval as referred to in the affidavit of Mr Timson sworn on 11 June 2019.
2.The Respondents, whether by their officers, servants, agents, contractors or otherwise, shall not take any steps to return the Applicant to Nauru pending the outcome of the present proceedings unless otherwise agreed between the parties or by further order.
3.By 5.00pm on 17 June 2019, the parties are to refile any documents that have been filed since the commencement of these proceedings that require redactions (or further redactions) in accordance with the non-publication orders issued in these proceedings.
4.Liberty to apply.
5.Costs reserved.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate:
Dated: 12 June 2019
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