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 for FRM17 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 and Medical Services involved in treating the applicant or reporting in respect of the condition of the applicant be prohibited. 1. The applicant hereafter be identified as DCQ18. 2. 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. 3. Liberty to restore on short notice. 4. Costs of the interlocutory application be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROBERTSON J: Introduction 1 This application has come before me urgently this morning as duty judge. 2 The applicant is a 30-year-old Somalian woman. She has been accepted as a refugee by Australia, on 4 November 2014. She was subsequently granted a temporary settlement visa to live temporarily on Nauru. She is presently on Nauru. She has been on Nauru for almost five years, after being transferred from Christmas Island to Nauru by the Commonwealth of Australia in October 2013. She is able to leave and re-enter Nauru subject to visa requirements of destination countries. She is approximately 12 weeks pregnant. She wishes to terminate her pregnancy on the ground that the pregnancy would be detrimental to her mental health. She requests an urgent transfer to a medical care facility where this can be safely and legally achieved in her particular circumstances. She requires an interpreter. 3 An important particular circumstance of the applicant is that she underwent infibulation in Somalia, infibulation being known as female genital mutilation (FGM). As I outline later, this has important implications for the available place or places at which the applicant may be medically treated. 4 The applicant seeks the following order as an interlocutory order: That the Minister, by himself or by his Department, officers, agents or delegates shall immediately transfer the Applicant to a location where she can receive counselling and then appropriate medical treatment in respect of the termination of her pregnancy, together with any associated or additional treatment which may be identified as necessary or desirable as a result of the carrying out of the foregoing treatment. 5 The question of an interlocutory order that the applicant be provided by the respondents with her own full medical records created since 21 May 2018 was not pursued. 6 In substance, the applicant seeks an interlocutory mandatory injunction. In a case such as the present such an injunction would go beyond the apparent preservation of the status quo and is of the class where it is probable the grant of the relief sought would determine the whole case, apart, perhaps, from a question as to the applicant's access to her own full medical records created since 21 May 2018. For these reasons I give particular attention to the strength of the applicant's case for relief. 7 The first matter is the procedural question of prohibiting the publication of information revealing the name of the applicant. Consistently with the terms of s 91X of the Migration Act 1958 (Cth), I make such an order under s 37AF of the Federal Court of Australia Act 1976 (Cth) on the grounds in s 37AG(1)(a) and (c). Similarly, I make an order prohibiting the publication of information revealing the names of officers of the International Health and Medical Services (IHMS). 8 No question was raised as to the Court's jurisdiction to hear the application. Indeed it was indicated that there was no issue as to the need for the applicant to be transferred to some place where she can have a termination of her pregnancy, such termination not being available in Nauru. 9 The respondents did not make any concession about the issue of breach of duty of care to the applicant. As will appear, the real issue between the parties, for present purposes, was whether the respondents would discharge their duty of care to the applicant by arranging for her to be assessed and treated in Taiwan at the Taiwan Adventist Hospital. 10 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 11 The applicant moves on the affidavit of Ms Anna Camille Talbot, solicitor, affirmed 14 June 2018. 12 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. 13 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. 14 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. 15 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. 16 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. 17 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. 18 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. 19 I find on the basis of Ms Talbot's affidavit that the applicant is unable to secure a safe or legal termination on Nauru. As I have indicated, that appears to be common ground. 20 I turn next to the medical evidence reproduced in Ms Talbot's affidavit. 21 I find that, on the basis of the evidence of Professor Caroline de Costa, a Professor of Obstetrics and Gynaecology at James Cook University in Queensland that a woman who has been subjected to infibulation who is seeking a pregnancy termination would require the services of a specialist public hospital such as the Royal Women's Hospital in Melbourne or Westmead Hospital in Sydney. I further find on the basis of that evidence, and in light of the stage of the applicant's pregnancy that has been reached, that a surgical termination would be most appropriate, not only for such a woman as the applicant but also because of the passing of time. I find that infibulation carries significant emotional and psychological implications and those aspects of care need to be expertly managed. Large hospitals in Sydney and Melbourne now have considerable experience in dealing with such cases, and also with the provision of surgical abortion. I find there is less experience in Queensland, as Professor de Costa explains, as there are smaller immigrant populations there from the relevant countries. I find that there would be substantial risks in performing the termination in other environments or by practitioners without the relevant experience and immediate physical risks including haemorrhage, infection, serious tears of the relevant organs and major psychological trauma and post-traumatic stress disorder. 22 I find, on the basis of the evidence of Professor Louise Newman, Director of Women's Mental Health at the Royal Women's Hospital in Melbourne, that a specific FGM clinic would be necessary to fulfil the applicant's specific surgical needs and that it would be necessary for the applicant to be examined by a practitioner experienced with FGM to establish exactly the type of termination that would be appropriate. I accept Professor Newman's evidence that the applicant requires a specific clinic for women who have experienced FGM to meet her mental health needs. It would be necessary that there be an established mental health team co-located with the clinic where the termination was to take place, with practitioners with expertise in relation to asylum seeker matters, trauma, detention, and the cultural and religious ramifications of pregnancy termination for a Muslim woman from Somalia. These facilities would be of particular importance given the applicant's prior mental health vulnerability. I find that the facilities at the Royal Women's Hospital in Melbourne are appropriate to meet the applicant's needs. 23 I also find, on the basis of the evidence of Dr Sheng Chiang, recently retired from his post as an attending physician in the Department of Obstetrics and Gynaecology, Mackay Memorial Hospital in Taiwan, that there are no Taiwanese obstetricians and gynaecologists with experience in performing pregnancy terminations on women with FGM. 24 In this respect I also note that the applicant underwent an operation at the Taiwan Adventist Hospital earlier in 2018, that operation being to do with her hand. The applicant's evidence is that she is not comfortable to undertake the pregnancy termination in Taiwan, or, I would infer, specifically in the Taiwan Adventist Hospital, in light of her previous experience in Taiwan at that hospital. 25 I find, for present purposes and as the evidence stands, that the applicant cannot obtain the medical treatment she requires in Taiwan. 26 I find that treatment can be provided in Australia, particularly at the hospitals identified in the affidavit material to which I have already referred, that is, the Royal Women's Hospital in Melbourne or Westmead Hospital in Sydney. I find that a specific FGM clinic is necessary to fulfil the applicant's specific surgical needs and that it will be necessary for the applicant to be examined by a practitioner experienced with FGM to establish exactly the type of termination that would be appropriate. The evidence adduced on behalf of the applicant, I find, is more specific and definite in these terms than the material to be derived from the affidavit of Ms Vanessa Holben. Similarly, I find that the applicant would require a specific clinic for women who have experience in FGM to meet her mental health needs. 27 For present purposes, I find that the assessment and treatment of the applicant in Taiwan would not be suitable in the sense that in the particular circumstances of this case the Taiwan Adventist Hospital, put forward by the respondents, would not provide suitable expertise and facilities. 28 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 29 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 for FRM17 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. 30 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. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Robertson. Associate: Dated: 15 June 2018