Plaintiff S99/2016 v Minister for Immigration and Border Protection

In the Federal Court of Australia, the Plaintiff, an adult female refugee, brought an action against the Minister for Immigration and Border Protection and others, seeking relief in respect of the circumstances of her removal from Nauru and her forced travel to Papua New Guinea for the purpose of procuring an abortion. The Plaintiff claimed that she had been raped while on Nauru and fell pregnant as a result. Upon her request, the respondents agreed to procure for her a termination of pregnancy. The Plaintiff alleged that there was a legal risk attendant upon the abortion in Papua New Guinea arising out of its criminal law dealing with abortion, and a medical risk arising out of the unavailability of medical equipment, experience and expertise required to adequately guard against risk. The Plaintiff sought declarations, injunctions and damages.

The legal issues the court was required to decide included whether the respondents owed a duty of care to the Plaintiff, whether there was an apprehended breach of that duty, and what the applicable law was in relation to the tort of negligence. The court was also required to consider whether there was a breach of a fiduciary duty and whether section 474 of the Migration Act precluded the issue of injunctive relief in proceedings other than judicial review proceedings.

The court found that the respondents owed a duty of care to the Plaintiff to exercise reasonable care in procuring for her a safe and lawful abortion. The court rejected the argument that the standard of care should be determined by reference to the medical services available in Papua New Guinea, and found that the magnitude of both the legal and medical risks of the abortion were high to extreme, and the probability of materialisation of the risk material, and neither trivial nor insignificant. The court found that the respondents had not discharged their duty of care by procuring the abortion in Papua New Guinea. The court also found that the applicable law in relation to the tort of negligence was Australian law.

The court made orders for the respondents to cease to fail to discharge their responsibility to procure for the Plaintiff a safe and lawful abortion, and to take steps to ensure that the abortion was procured in accordance with the court’s directions. The court also made orders for the publication of certain information to be prohibited and for the respondents to take no step to remove the Plaintiff from Papua New Guinea.

This case highlights the importance of considering the legal and medical risks of forced removal and medical procedures for refugees and the duty of care owed to them by the relevant authorities.