WARNING: This story contains detail that may be distressing to some readers, including descriptions of self-harm and suicide. If you are experiencing distress and are in need of support, please contact Lifeline on 13 11 14.
On 6 March 2018, the Federal Court of Australia ordered that the Minister of Home Affairs transfer the applicant, a child referred to as AYX18, to a specialist in-patient child and adolescent psychiatrist unit in Australia. This was to ensure that the child received urgent psychiatric care that was not available in Nauru.
This case involves an application for an urgent interlocutory injunction seeking that the Minister immediately remove a 10-year-old child and his mother from Nauru to Australia so the child may receive psychiatric care.
On 23 July 2013, the child and mother arrived from Iran as ‘unauthorised maritime arrivals’. They both came under the regime of offshore processing and were transferred to Nauru where they were granted temporary settlement visas. In December 2013, the child began to experience night terrors and in early 2014, his mental health started to deteriorate. By October 2014, he suffered a 2-week episode of suicidal ideation and threats of self-harm in addition to physical pain. On 9 January 2018, he attempted suicide using paracetamol and antibiotics and was taken to emergency in an unconscious state. Two days later, he attempted to strangle himself with a curtain. The Minister refused to transfer the child.
Dr Gordon, in his report dated 20 January 2018, stated the child was suffering from chronic depressive disorder and that he was at significant risk of future suicide attempts, recommending the child be taken to the mainland for surgical and psychiatric treatment by clinicians that specialise in child psychiatry.
Soon afterwards, Dr Reynolds, the International Health and Medical Services (IHMS) child psychiatrist, stated that the child requires “containment, assessment, and treatment in an Inpatient Child and Adolescent Psychiatric Unit” in his report dated 1 February 2018.
The legal issues:
The legal test
An interlocutory injunction requires a two-step analysis. In this case, the following had to be considered:
- First, whether AYX18 has shown a sufficient likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial; and
- Second, whether the inconvenience or injury which AYX18 is likely to suffer if the injunction is refused outweighs or is outweighed by the injury which the Minister for Home Affairs would suffer if the injunction were granted.
The Applicant’s view
The applicant relied upon the reasoning established in the case of S99/2016 v Minister for Immigration and Border Protection  FCA 483 where Bromberg J held that the Commonwealth owed a duty of care to the applicant as she was dependent upon them for her care. In the case, the judge found that:
- The Minister owed a duty of care to assist the applicant in having an abortion in Australia and to bring her to Australia for that purpose; and
- That duty could be enforced by an injunction.
The Minister’s view
The Minister put forward four main arguments relating to convenience including the following:
- Mandatory injunction. The Minister submitted that the status quo would not be preserved by any injunction. This was accepted by the Court and was noted that the Commonwealth will incur an expense if the injunction was granted. However, His Honour did not place as much weight on this factor as it is usually given as there was a life at stake.
- Delay. The Minister submitted that the application was only made on 3 March 2018 despite Dr Gordon flagging difficulties on 16 January 2017. The Court stated that there was evidence to show the parties had, since 18 January 2018, attempted to avoid this hearing, ultimately concluding that the delay was not a significant aspect.
The Judge held that the risk of the child’s death was the most powerful and compelling consideration in determining the balance of convenience.
What was held:
The Judge accepted that AYX18 presented a sufficiently arguable case in the circumstances that:
- he is suffering from serious mental illness which poses a present risk of suicide;
- the condition cannot be treated in Nauru; and
- treatment can be provided in Australia.
A mandatory injunction compelling the Minister for Home Affairs to transfer the child and his mother to Australia as soon as reasonably practicable was granted so that the child could be assessed and admitted into a specialist in-patient child and adolescent psychiatrist unit in accordance with the recommendations of Dr Reynolds in his report of 11 February 2018.
In the media:
- Nauru’s children are self-harming, but ordinary Australians can stop the horror, ABC News
- Nauru president wrong to say refugee kids’ self-harm is a tactic: advocates, SBS News
- Nauru refugees: The island where children have given up on life, BBC
- Securing Medical Evacuation for FRX17
- Securing Urgent Medical Care for DCQ18
- Medevac of DWD18 from Nauru to secure urgent medical care
Author: Leyla Kaya (Macquarie University Social Justice Clinic)