EMK18 v Minister for Home Affairs

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FEDERAL COURT OF AUSTRALIA

EMK18 v Minister for Home Affairs [2018] FCA 1357

File number: VID 1076 of 2018
Judge: MORTIMER J
Date of judgment: 31 August 2018
Date of publication of reasons: 6 September 2018
Catchwords: PRACTICE AND PROCEDURE – application for interlocutory injunction requiring the provision to the applicants of urgent medical treatment – duty of care allegedly owed by respondents to applicants brought to Nauru under the Migration Act 1958 (Cth) – principles relevant to the grant of an interlocutory injunction – whether sufficient likelihood of success to justify grant – where the balance of convenience lies – injunction granted to require the respondents to transfer applicants to a location in Australia where they can be provided with urgent medical treatment
Legislation:

Federal Court of Australia Act 1976 (Cth), ss 37AF, 37AG(1)(a)

Migration Act 1958 (Cth), s 198AD, Subdiv B, Subdiv C, Pt 2

Cases cited:

AYX18 v Minister for Home Affairs [2018] FCA 283

BAF18 as litigation representative for BAG18 v Minister for Home Affairs [2018] FCA 1060

DCQ18 v Minister for Home Affairs [2018] FCA 918

DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050

DRB18 v Minister for Home Affairs [2018] FCA 1163

DWE18 as litigation representative for DWD18 v Minister for Home Affairs [2018] FCA 1121

EHW18 v Minister for Home Affairs [2018] FCA 1350

FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63

Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483; 243 FCR 17
Date of hearing: 31 August 2018
Registry: Victoria
Division: General Division
National Practice Area: Administrative and Constitutional Law and Human Rights
Category: Catchwords
Number of paragraphs: 39
Counsel for the Applicants: Ms L De Ferrari SC, Ms S Gold
Solicitor for the Applicants: Marque Lawyers
Counsel for the Respondents: Mr J Forsaith
Solicitor for the Respondents: Australian Government Solicitor

ORDERS

VID 1076 of 2018
BETWEEN:

EMK18 BY HER LITIGATION REPRESENTATIVE EMM18

First Applicant

EML18 BY HER LITIGATION REPRESENTATIVE EMM18

Second Applicant
AND:

MINISTER FOR HOME AFFAIRS

First Respondent

COMMONWEALTH OF AUSTRALIA

Second Respondent

JUDGE:

MORTIMER J

DATE OF ORDER:

31 AUGUST 2018

THE COURT ORDERS THAT:

1.On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), that publication of any name of the applicants and their family members, or any information which would reveal or tend to reveal the identity of the applicants and their family members, be prohibited under s 37AF of the Federal Court Act.

2.The first applicant is to be identified as EMK18, the second applicant is to be identified as EML18 and the first applicant’s husband is to be identified as EMM18.

3.EMM18 be appointed as the litigation representative of EML18 and, until further order and until the legal capacity of EMK18 can be clearly ascertained, as the litigation representative of EMK18.

4.As soon as reasonably practicable from the time of this order…

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Details
Case
[2018] FCA 1357
Decision Date

CaseChat Overview and Summary

The case of EMK18 v Minister for Home Affairs involved applicants seeking an interlocutory injunction to compel the respondents to transfer them from Nauru to Australia for urgent medical treatment. The applicants alleged that they were unable to receive adequate medical care on Nauru due to the absence of tertiary level hospitals. The case was heard in the Federal Court of Australia, where the applicants sought relief on the grounds of the duty of care owed to them under the Migration Act 1958 (Cth).

The primary legal issue was whether there was a sufficient likelihood of success on the merits to justify the grant of an interlocutory injunction. Additionally, the court had to consider the balance of convenience to determine where the applicants' interests lay. Expert medical evidence was provided to support the applicants' claims of urgent medical needs that could not be met on Nauru. The evidence highlighted the necessity for comprehensive psychiatric assessments, specialist consultations, and advanced medical treatments that were unavailable on Nauru.

The court, in granting the injunction, found that the applicants had a compelling case for urgent medical treatment that could not be provided in Nauru. The expert evidence underscored the necessity for immediate access to psychiatric and internal medicine specialists, as well as the requirement for proper informed consent and face-to-face interpreting for the applicants' complex medical conditions. The balance of convenience favoured the applicants, as the potential harm of not receiving urgent medical care outweighed the inconvenience to the respondents.

The Federal Court ordered the respondents to transfer the applicants to Australia for appropriate medical treatment and assessment at a tertiary hospital. The court also mandated that the respondents provide the applicants' complete medical records and related documents to their solicitors. The case was listed for a case management hearing, and costs were reserved for further determination.

Orders

Orders of the court

1. On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act), that publication of any name of the applicants and their family members, or any information which would reveal or tend to reveal the identity of the applicants and their family members, be prohibited under s 37AF of the Federal Court Act.

2. The first applicant is to be identified as EMK18, the second applicant is to be identified as EML18 and the first applicant’s husband is to be identified as EMM18.

3. EMM18 be appointed as the litigation representative of EML18 and, until further order and until the legal capacity of EMK18 can be clearly ascertained, as the litigation representative of EMK18.

4. As soon as reasonably practicable from the time of this order the respondents transfer EMK18, EML18 and EMM18 to a location in Australia where EMK18 and EML18 can be assessed at a tertiary hospital and can receive appropriate and necessary treatment, as recommended by the clinicians and practitioners assigned to treat them.

5. The respondents provide to the applicants’ solicitors at least two clear business days’ notice before taking any steps to remove EMK18, EML18 and EMM18 from Australia.

6. As soon as reasonably practicable and within three weeks, the respondents provide to the applicants’ solicitors their complete medical records and all documents relating to their medical conditions and treatment in their possession, custody or control, current up to the date of the order, including without limitation:

(a) Full medical reports;

(b) All clinical/progress notes in respect of the applicants’ medical conditions;

(c) Copies of any recording or film or other test records in respect of the applicants’ medical conditions including mental health;

(d) Referral letters;

(e) Specialist assessments;

(f) Medical assessment records; and

(g) Correspondence with the Department, officers, agents or delegates of the respondents in relation to the applicants’ medical conditions and treatment.

7. The proceeding be listed for a case management hearing on a date to be fixed and agreed between the parties and the Court.

8. Costs be reserved.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicants allege no adequate and reasonable standard of care can be provided to the applicants in Nauru because there is no tertiary level hospital.THE KEY MEDICAL EVIDENCE ON THE APPLICATION There was expert evidence adduced in relation to the health and medical needs of both applicants. Dr Jenkins is a consultant psychiatrist. Dr Jenkins’ report of 27 August 2018 records that the first applicant has been diagnosed with a severe depressive illness that is psychotic in nature, and also with post-traumatic stress disorder. Dr Jenkins concludes that the first applicant requires urgent access to a full, comprehensive and holistic psychiatric assessment (which in her opinion may necessitate electroconvulsive therapy, or “ECT”). Ms Peacock’s evidence was that Dr Jenkins had told her that because ECT was a possibility, there are likely to have to be extensive consultations and information sessions for the first applicant, probably together with her husband. There will also have to be consultations with an anaesthetist (regarding any ECT), nutritionist and psychiatrist. Dr Jenkins told Ms Peacock that it would be extremely difficult to properly inform a patient about ECT through the use of a phone interpreter, due to its complexities, the length of the consultation (several hours) and the need for properly informed consent prior to its administration. As I also found in EHW18, it is clear that treating psychiatric conditions, and explaining medical procedures so as properly to obtain informed consent, is likely to require face-to-face interpreting. Dr Jenkins also explained to Ms Peacock her opinion about the need for adequate services to assist the first applicant in re-establishing a relationship with her child. Having reviewed the IHMS records, Dr Jenkins’ opinion is that she did not see evidence in those records that the level of care required exists on Nauru. Dr Berger is a registered medical practitioner with a background in internal medicine and general practice. He currently works as an emergency medicine doctor, mostly at Broome Hospital in the far north-west of Western Australia. He notes in his report that Broome Hospital is the kind of remote Australian regional hospital often compared to the Republic of Nauru Hospital. He notes, having examined the first applicant’s medical records that she has experienced rapid weight loss and her Body Mass Index is at a level significantly below World Health Organisation guidelines for being underweight. His opinion is that she requires urgent access to an ENT specialist (a reference that appears to be to an Ear, Nose and Throat Specialist), as well as a general physician. He states that the:…combination of this woman’s psychiatric and physical conditions represents a difficult management scenario, requiring high levels of psychiatric and internal medicine medical and nursing expertise and I do not believe we would try to manage this case in Broome Hospital... Dr Bauert is a paediatrician. His opinion (expressed in his report on or around 29 August 2018) is that the first applicant’s daughter is suffering from episodes of severe agitation and aggression, which may be caused by an organic illness. She requires access to a paediatric hospital with EEG and MRI availability for full assessment, in Dr Bauert’s opinion.

Decision

Reasons for decision

MORTIMER J

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Ratio Decidendi

Legal Principle Established

Established by: MORTIMER J

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