EMK18 v Minister for Home Affairs [2018] FCA 1357

EMK18 v Minister for Home Affairs [2018] FCA 1357

The expert medical evidence showed a dire situation for the first applicant and a worrying unexplained medical situation for her daughter, with unanimous opinions that urgent assessment and treatment were required. For interlocutory purposes the applicants' duty of care and breach claims had a sufficient likelihood of success, compliance with the alleged duty necessarily involved removal from Nauru with EMM18, and the balance of convenience overwhelmingly favoured orders because of the real likelihood of further harm, including a serious risk of suicide or attempted suicide by the first applicant.

Jurisdiction
Australia
Judgment Date
31 August 2018
Procedural Posture
Urgent Interlocutory Application for Injunctive Relief Requiring Transfer From Nauru to Australia for Medical Treatment / Interlocutory Application
Outcome
Interlocutory injunction granted requiring transfer of EMK18, EML18 and EMM18 to Australia for assessment and treatment; costs reserved.
Legal Topics
['interlocutory Injunction' 'duty of Care' 'regional Processing' 'urgent Medical Treatment' 'medical Evacuation' 'suppression and Non Publication Orders' 'litigation Representative']
['practice and Procedure' 'administrative and Constitutional Law and Human Rights' 'migration Law' 'negligence'] ['interlocutory Injunction' 'duty of Care' 'regional Processing' 'urgent Medical Treatment' 'medical Evacuation' 'suppression and Non Publication Orders' 'litigation Representative']

Case Brief

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Procedural Posture

Urgent Interlocutory Application for Injunctive Relief Requiring Transfer From Nauru to Australia for Medical Treatment / Interlocutory Application

Legal Issues

  1. 1 ['Whether the applicants had shown a sufficient likelihood of success on their claims that the respondents owed and breached a duty of care to procure adequate medical treatment.' 'Whether the balance of convenience favoured interlocutory orders requiring the respondents to transfer the applicants and EMM18 to Australia for urgent assessment and treatment.' 'Whether adequate treatment was available in Nauru or whether transfer to Australia was necessary.' 'Whether the proposed transfer to Taiwan could be relied on where consent had not been given.']

Ratio Decidendi

The expert medical evidence showed a dire situation for the first applicant and a worrying unexplained medical situation for her daughter, with unanimous opinions that urgent assessment and treatment were required. For interlocutory purposes the applicants' duty of care and breach claims had a sufficient likelihood of success, compliance with the alleged duty necessarily involved removal from Nauru with EMM18, and the balance of convenience overwhelmingly favoured orders because of the real likelihood of further harm, including a serious risk of suicide or attempted suicide by the first applicant.

Court Disposition

Interlocutory injunction granted requiring transfer of EMK18, EML18 and EMM18 to Australia for assessment and treatment; costs reserved.

Orders

  • ['On the grounds set out at s 37AG(1)(a) and (c) of the Federal Court of Australia Act 1976 (Cth), 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...