DCQ18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

DCQ18 v Minister for Home Affairs [2018] FCA 918

File number: NSD 1021 of 2018
Judge: ROBERTSON J
Date of judgment: 15 June 2018
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory mandatory injunction – applicant a 30-year-old Somalian woman accepted as a refugee by Australia in 2014 – applicant subsequently granted a temporary settlement visa to live temporarily in Nauru – applicant able to leave and re-enter Nauru subject to visa requirements of destination countries – applicant approximately 12 weeks pregnant – applicant wishing to terminate her pregnancy on the ground that the pregnancy would be detrimental to her mental health – applicant requested an urgent transfer to a medical care facility where this may be safely and legally achieved in her particular circumstances – applicant underwent infibulation in Somalia, infibulation being known as female genital mutilation (FGM) – applicant with history of mental illness, her medical records disclosing a number of suicide attempts in 2014 and a recent decline in her mental health – whether hospital in Taiwan available for applicant’s medical treatment – where medical evidence that a specific FGM clinic is necessary to fulfil applicant’s specific surgical needs and for the applicant to be examined by a practitioner experienced with FGM to establish exactly the type of termination that would be appropriate  
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 37AF, 37AG

Migration Act 1958 (Cth) s 91X

Cases cited:

D7 v Minister for Immigration and Border Protection [2016] FCA 1331; 244 FCR 1

FRX17 as litigation representative forFRM17 v Minister for Immigration and Border Protection [2018] FCA 63

Date of hearing: 15 June 2018
Registry: New South Wales
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 30
Counsel for the Applicant: Mr GM Watson SC with Ms DH Tang
Solicitor for the Applicant: National Justice Project
Solicitor for the Respondents: Mr A Markus of the Australian Government Solicitor

ORDERS

NSD 1021 of 2018
BETWEEN:

DCQ18

Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

SECRETARY OF THE DEPARTMENT OF HOME AFFAIRS

Third Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

15 JUNE 2018

UPON THE UNDERTAKING OF THE APPLICANT BY HER COUNSEL:

(a)To submit to such order (if any) as the Court may consider to be just for the payment of compensation to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

(b)To pay the compensation referred to in (a) to the person there referred to.

THE COURT ORDERS THAT:

1.Under s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c), the publication of any information which would reveal or tend to reveal the identity of the applicant or any officer of the International Health…

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Details
Case
[2018] FCA 918
Decision Date

CaseChat Overview and Summary

In the matter of DCQ18 v Minister for Home Affairs, the Federal Court of Australia was presented with an urgent application for an interlocutory mandatory injunction. The applicant, a 30-year-old Somalian woman who has been a refugee in Australia since 2014, is currently residing in Nauru under a temporary settlement visa. Approximately 12 weeks pregnant and suffering from a history of mental illness, the applicant sought an urgent transfer from Nauru to a medical facility where she could safely and legally terminate her pregnancy, which she believed would be detrimental to her mental health. This application arose from her specific medical needs related to female genital mutilation (FGM) and her deteriorating mental condition.

The primary legal issue before the court was whether the respondents were obligated to transfer the applicant from Nauru to a medical facility in Taiwan or another suitable location for the termination of her pregnancy. The respondents argued that Taiwan was an appropriate destination for the applicant's treatment, despite the applicant's refusal to consent to treatment there. The court had to determine whether the respondents' contention about Taiwan being a suitable location was valid, given the applicant's specific medical needs and her refusal to consent to treatment in Taiwan.

The court found that there was a serious question to be tried regarding the respondents' duty of care towards the applicant, which included providing her with necessary medical care, including mental health care, and transferring her to a location where she could receive appropriate treatment. The court was persuaded by the medical evidence indicating that the Taiwan Adventist Hospital did not have the specific facilities or expertise required to address the applicant's unique medical needs, which included an FGM clinic and a practitioner experienced with FGM. The court also noted the urgency of the situation, as the applicant's pregnancy had progressed to a stage where surgical termination was most appropriate and any delay could increase the risks and complexities of the procedure.

In light of these findings, the court granted the applicant's application, ordering the respondents to transfer her to a suitable medical facility as soon as reasonably practicable. The court also prohibited the publication of any information that would reveal the identity of the applicant or the medical officers involved in her treatment. The court reserved the costs of the interlocutory application, allowing for potential future assessment based on the outcome of the proceedings.

Orders

Orders of the court

1. Under s 37AF of the Federal Court of Australia Act 1976 (Cth), on the grounds in s 37AG(1)(a) and (c), the publication of any information which would reveal or tend to reveal the identity of the applicant or any officer of the International Health and Medical Services involved in treating the applicant or reporting in respect of the condition of the applicant be prohibited.

2. The applicant hereafter be identified as DCQ18.

3. As soon as reasonably practicable, the first respondent is to cause the transfer of the applicant to a place where she can receive medical assessment and treatment for the termination of her pregnancy, consistent with the recommendations made by Professor Caroline de Costa in her telephone conversation with Anna Camille Talbot on 12 June 2018 and consistent with the recommendations made by Professor Louise Newman in her telephone conversation with Anna Camille Talbot on 13 June 2018, or to such other place of treatment as agreed between the parties.

4. Liberty to restore on short notice.

5. Costs of the interlocutory application be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

I find that there is 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 designed to meet her needs, including her mental health care needs. In the present circumstances, the content of that duty includes an obligation to remove the applicant from Nauru to a place where she can be admitted for appropriate medical treatment. The principal issue was whether, as the respondents contended, Taiwan was a place where the applicant could and should be moved for the treatment she needed.Evidence The applicant moves on the affidavit of Ms Anna Camille Talbot, solicitor, affirmed 14 June 2018. The respondents rely on an affidavit made by Ms Vanessa Jane Holben, Assistant Commissioner, Detention and Offshore Operations Command within the Australian Border Force which is part of the Department of Home Affairs, affirmed today, 15 June 2018. From that affidavit it appears that an IHMS psychologist has examined the applicant and said that the applicant would require referral to a psychologist. On 30 May 2018, IHMS recommended that the applicant be transferred to Australia or a third country for family planning and counselling with potential medical/surgical intervention, noting that the treatment required was not available on Nauru. The treatment required was a termination of the applicant’s pregnancy, on the ground that such treatment would be detrimental to the applicant’s mental health. That affidavit also refers to various medical observations of an IHMS obstetrician and an IHMS psychiatrist. The obstetrician records that the applicant has FGM Type 3 with signs of de-infibulation. The same note states that the applicant is not interested in having the termination of pregnancy in Taiwan and that she refused to sign the consent form for the Taiwan Adventist Hospital. The affidavit also contains some further medical material from another medical practitioner of IHMS to the effect that the applicant has FGM Type 3 with de-infibulation and that there was “adequate vaginal outlet”. I find that this does not relevantly qualify the evidence of Professor Newman, to which I refer in more detail later. I also find, for the purposes of this application, that for a woman at the late stage of the first trimester, surgical treatment to terminate a pregnancy is most appropriate. Also, as time goes on, terminations become increasingly complex and dangerous and any termination should take place by 14 weeks at the latest. It was common ground before me that the assessment and related treatment needed to commence no later than 22 June 2018, a week from today. The respondents did not contend that there was any issue of transport logistics standing in the way of that timetable. This appeared to be common ground. The applicant also has a history of mental illness, her medical records disclosing a number of suicide attempts in 2014 and a recent decline in her mental health. She has been diagnosed with dysthymia and a depressed mood in the last six months. She has told her solicitor that her existing stress and depression is getting worse since she became pregnant and she is unable to sleep or eat.

Decision

Reasons for decision

I also observe that the indications from the Taiwan Adventist Hospital that it will accept the applicant are conditional and qualified: I refer in particular to paragraphs [31] and [51] of Ms Holben’s affidavit where there is reference to that hospital’s “preliminary indication”.Conclusion and orders The applicant, by her counsel, has given the usual undertaking as to damages. I note a particular form of order used in FRX17 as litigation representative forFRM17 v Minister for Immigration and Border Protection [2018] FCA 63 by Murphy J and counsel have agreed on the following form of undertaking:Upon the undertaking of the applicant by counsel:(a)To submit to such order (if any) as the Court may consider to be just for the payment of compensation to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and(b) To pay the compensation referred to in (a) to the person there referred to. I gave counsel the opportunity to frame orders that are not unduly inflexible or restrictive. I suggested as indicative a form of order based on the orders made by Perram J in D7 v Minister for Immigration and Border Protection [2016] FCA 1331. In light of my conclusions, counsel agreed on the following form of order:1.As soon as reasonably practicable, the first respondent is to cause the transfer of the applicant to a place where she can receive medical assessment and treatment for the termination of her pregnancy, consistent with the recommendations made by Professor Caroline de Costa in her telephone conversation with Anna Camille Talbot on 12 June 2018 and consistent with the recommendations made by Professor Louise Newman in a telephone conversation with Anna Camille Talbot on 13 June 2018, or to such other place of treatment as agreed between the parties.2.Liberty to restore on short notice.3.Costs of the interlocutory application be reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.