DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050

DJA18 as litigation representative for DIZ18 v Minister for Home Affairs [2018] FCA 1050

There is a strongly arguable case that the healthcare provided to the applicant in Papua New Guinea was inadequate and failed to meet the respondents' duty of care; urgent MRI, EEG, and ongoing specialist review are necessary, and these cannot be delivered at PIH; ongoing risk to child's health and life outweighs inconvenience or cost to Commonwealth; therefore, a mandatory interlocutory injunction should be granted requiring immediate transfer to Australia for appropriate medical care, including facilitating presence of both parents.

Jurisdiction
Australia
Judgment Date
11 July 2018
Procedural Posture
Application for Urgent Interlocutory Injunction / Interlocutory (urgent Mandatory Injunction Sought and Granted)
Outcome
Interlocutory mandatory injunction granted; other interlocutory orders made by consent.
Legal Topics
['interlocutory Injunctions' 'duty of Care—healthcare for Refugees' 'mandatory Orders—medical Evacuation' 'adequacy of Medical Treatment' 'child Health—medical Standard of Care']
['administrative Law' 'human Rights Law'] ['interlocutory Injunctions' 'duty of Care—healthcare for Refugees' 'mandatory Orders—medical Evacuation' 'adequacy of Medical Treatment' 'child Health—medical Standard of Care']

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Procedural Posture

Application for Urgent Interlocutory Injunction / Interlocutory (urgent Mandatory Injunction Sought and Granted)

Legal Issues

  1. 1 ['Whether there is a serious question to be tried that adequate healthcare for the applicant requires transfer to Australia for urgent medical treatment and tests' 'Whether the balance of convenience justifies granting a mandatory interlocutory injunction compelling the respondents to urgently transfer the applicant and her parents to Australia']

Ratio Decidendi

There is a strongly arguable case that the healthcare provided to the applicant in Papua New Guinea was inadequate and failed to meet the respondents' duty of care; urgent MRI, EEG, and ongoing specialist review are necessary, and these cannot be delivered at PIH; ongoing risk to child's health and life outweighs inconvenience or cost to Commonwealth; therefore, a mandatory interlocutory injunction should be granted requiring immediate transfer to Australia for appropriate medical care, including facilitating presence of both parents.

Court Disposition

Interlocutory mandatory injunction granted; other interlocutory orders made by consent.

Orders

  • ['Respondents to bring applicant and her mother to Australia from Papua New Guinea within 48 hours.' "Respondents to bring applicant's father to Australia from Nauru by 6 July 2018." "Ensure treatment of applicant at Australian tertiary level hospital with MRI brain scan (with sedation by paediatric anaesthetist),...