Now available on Austlii is the decision of the Federal Court in Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483.

In accordance with the practice of the Federal Court in cases of public interest, importance or complexity, the following summary was prepared to accompany the orders made:

This proceeding commenced in the High Court and was referred for hearing and determination by this Court. As will be apparent, it required an urgent hearing and an urgent determination. By reason of the exemplary efforts of the parties, their legal advisors and the staff of the Court, for which I am grateful, that has been achieved.
The applicant is a young African woman. The respondents are the Minister for Immigration and Border Protection and the Commonwealth of Australia (collectively, the Minister).
The applicant arrived in Australia on 17 October 2013 having travelled by boat from Indonesia to Christmas Island. On arrival and by virtue of s 14 of the Migration Act 1958 (Cth) (the Act), the applicant was designated an “unlawful noncitizen” and therefore an “unauthorised maritime arrival” within the meaning of s 5AA of the Act. On arrival, the applicant was detained by the Minister under s 189 of the Act. In the exercise of the power conferred by s 198AD of the Act, on 19 October 2013, the applicant was taken from Australia by an officer of the Minister and placed in the Republic of Nauru, a country designated to be a “regional processing country” under s 198AB(1) of the Act. Upon her removal from Australia, the applicant became a “transitory person” within the meaning of s 5 of the Act. She was detained in a detention centre in Nauru until November 2014. On being recognised as a refugee she was released from detention and is awaiting resettlement. She has no independent means. She has been and remains dependant on the Minister for food, shelter, security and healthcare.
Despite the nomenclature used by the Act to describe her, the applicant remains entitled to the protection of Australian law. Principally, that is because the Minister is bound by the law and, as my reasons explain, the Minister and the applicant are parties to a relationship recognised and enforced by the law out of which legal rights and obligations flow.
The applicant claims that by reason of a legal relationship recognised by the common law, the Minister must take reasonable care of her. She claims to be a vulnerable woman in desperate circumstances. It is undeniable that she needs care. On 31 January 2016, she was raped whilst unconscious and suffering a seizure likely to have been caused by epilepsy. As a result of the rape she is pregnant. The fact that she needs an abortion is not in contest. However, the medical evidence is that an abortion for the applicant is not straightforward. There are significant risks for the applicant because of her neurological condition, her poor mental health and the physical and psychological complications caused by a procedure to which she was subjected as a young girl.
Expert medical evidence says that an abortion for the applicant should only be conducted where (broadly speaking) the treating doctors have available the following resources:

(i) the neurological expertise of a neurologist and EEG diagnostic equipment;
(ii) the mental health expertise of a psychologist and other professionals with experience in trans-cultural issues;
(iii) the gynaecological expertise of a gynaecologist experienced in dealing with the consequences of the procedure experienced by the applicant as a young girl; and
(iv) the expertise of an anaesthetist experienced with newer, safer anaesthetic drugs and anaesthetic techniques and familiar with anaesthesia in an MRI facility.

The Minister accepts that without his assistance the applicant cannot procure an abortion. An abortion for the applicant is not available in Nauru. It would not be safe and legal. The medical evidence is that an abortion in Australia would be safe, in the sense that the medical resources I have identified are available. However, the Minister has refused to bring the applicant to Australia.
The Minister has the legal capacity to bring the applicant to Australia for a temporary purpose. But the Minister has a policy. It is that a “transitory person” like the applicant, will not be brought to Australia other than in exceptional circumstances. The Minister does not regard the applicant’s circumstances as exceptional.
Nevertheless, the Minister is willing to assist. He has assumed responsibility for the Applicant’s care and has made an abortion available to the applicant in Papua New Guinea. For that purpose, the applicant was taken to Port Moresby. That is where she is now.
In this proceeding the applicant alleges that an abortion in Papua New Guinea would be neither safe nor legal. Relying on the evidence of her medical experts, she claims that the absence of the medical resources in Papua New Guinea of the kind earlier listed, exposes her to grave risk. She also contends that an abortion in Papua New Guinea is illegal and would expose her to criminal liability.
Relying upon the existence of a legal relationship between her and the Minister recognised by the law of negligence, the applicant claims that the Minister has a duty of care to procure for her a safe and lawful abortion. She does not say that an abortion must be procured for her and conducted in Australia, but does say that the discharge of the Minister’s duty could be readily achieved in Australia. She apprehends that the Minister will fail to discharge that duty. She seeks declarations and orders designed to preclude the Minister from failing to discharge the duty of care she claims he has.
The Minister denies the existence of a duty of care to the applicant. He also says that if a duty of care exists, the procuring of an abortion for the applicant in Papua New Guinea is both safe and lawful and would discharge any obligation owed. Additionally, the Minister contends that if there is a duty of care and an apprehended breach of it, the courts are powerless to grant the applicant injunctive relief. For that and other reasons, the Minister contends that the proceeding should be dismissed.
Complex issues are called up for determination, including:

  • is the applicable law, Australian law or Papua New Guinean law?;
  • is a duty of care established?;
  • if so, is there an apprehended breach of that duty?;
  • does s 474 of the Act preclude the Court from granting injunctive relief?
  • if not, is it appropriate that an injunction be granted? and;
  • should declarations be made as well or instead?

For the reasons which follow, I have decided that:

  • the Minister has a duty of care to the applicant to exercise reasonable care to discharge the responsibility he assumed to procure for her a safe and lawful abortion;
  • the abortion in Papua New Guinea made available to the applicant is attended by safety and lawfulness risks that a reasonable person in the Minister’s position would have avoided, and thus that the procuring of the abortion by the Minister did not discharge his duty of care;
  • there is reasonable apprehension that the Minister will fail to discharge his duty of care;
  • the Court is not precluded by s 474 of the Act from issuing injunctions in cases like the present;
  • it is appropriate that declarations be made; and
  • injunctions should issue to restrain the Minister from failing to discharge his duty of care to exercise reasonable care to discharge the responsibility he assumed to procure for the applicant a safe and lawful abortion.

The orders I will make will preclude the Minister from procuring an abortion in Papua New Guinea in the discharge of his duty of care but do not require the applicant to be brought to Australia.

There are other claims made by the Applicant including that:

  • she is owed a fiduciary duty by the Minister;
  • that the Minister’s decisions not to bring her to Australia for an abortion should be set aside as legally unreasonable; and
  • that the Minister’s failure to procure for her a safe and legal abortion would exceed the power conferred by s 198AHA of the Act and s 61 of the Constitution.

None of those claims succeed.

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