D7 v Minister for Immigration and Border Protection [2016] FCA 1331

D7 v Minister for Immigration and Border Protection [2016] FCA 1331

The Court granted limited interlocutory relief because there was a serious case to be tried that the applicant required medical treatment not available on Nauru and that the Commonwealth, having facilitated her medical treatment in Papua New Guinea, arguably owed her a duty of care. Since the Commonwealth was unlikely itself to exercise coercive power in Papua New Guinea, the appropriate order was not a restraint on removal but an order that the respondents use best endeavours to ensure the applicant remained in Papua New Guinea, preserving the status quo where the Commonwealth did not accept that the same duty of care would necessarily continue after return to Nauru.

Jurisdiction
Australia
Judgment Date
04 November 2016
Procedural Posture
Urgent Application for Interlocutory Injunction / Duty Judge Application Pending Trial or Further Directions
Outcome
Interlocutory best endeavours order made and matter stood over for further directions.
Legal Topics
['offshore Processing Arrangements' 'medical Treatment' 'interlocutory Injunction' 'best Endeavours Order' 'removal From Papua New Guinea to Nauru']
['administrative and Constitutional Law and Human Rights' 'immigration' 'duty of Care'] ['offshore Processing Arrangements' 'medical Treatment' 'interlocutory Injunction' 'best Endeavours Order' 'removal From Papua New Guinea to Nauru']

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Procedural Posture

Urgent Application for Interlocutory Injunction / Duty Judge Application Pending Trial or Further Directions

Legal Issues

  1. 1 ['Whether there was a serious case to be tried that the applicant could not obtain required medical treatment on Nauru.' 'Whether the Commonwealth arguably owed the applicant a duty of care in relation to medical treatment it was facilitating.' "Whether interlocutory relief should be granted to preserve the applicant's position in Papua New Guinea pending trial." 'Whether the respondents should be restrained from removing the applicant or instead ordered to use best endeavours to keep her in Papua New Guinea.']

Ratio Decidendi

The Court granted limited interlocutory relief because there was a serious case to be tried that the applicant required medical treatment not available on Nauru and that the Commonwealth, having facilitated her medical treatment in Papua New Guinea, arguably owed her a duty of care. Since the Commonwealth was unlikely itself to exercise coercive power in Papua New Guinea, the appropriate order was not a restraint on removal but an order that the respondents use best endeavours to ensure the applicant remained in Papua New Guinea, preserving the status quo where the Commonwealth did not accept that the same duty of care would necessarily continue after return to Nauru.

Court Disposition

Interlocutory best endeavours order made and matter stood over for further directions.

Orders

  • ['The Respondents use their best endeavours to ensure that the Applicant remains in Papua New Guinea.' 'Order 1 expires on 18 November 2016 at 4.15pm.' 'Stand the matter over for further directions before the Duty Judge at 9.30am on 8 November 2016.' 'These orders be entered forthwith.']