FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63

FRX17 as litigation representative for FRM17 v Minister for Immigration and Border Protection [2018] FCA 63

Given the existence of a serious question to be tried as to the respondents' duty of care, the inadequacy of mental health facilities on Nauru for the applicant, and the extreme and immediate risk of suicide or self-harm, the balance of convenience strongly favours the grant of an interlocutory injunction requiring the applicant be transferred to a specialist child mental health facility for assessment and treatment outside Nauru in accordance with expert recommendations.

Parties
Applicant: FRX17 as litigation representative for FRM17; First Respondent: Minister for Immigration and Border Protection; Second Respondent: Commonwealth of Australia; Third Respondent: Secretary of the Department of Immigration and Border Protection
Jurisdiction
Australia
Judgment Date
09 February 2018
Procedural Posture
Application for Interlocutory Injunction / Interlocutory; Orders and Reasons on Injunction
Outcome
Interlocutory injunction granted requiring transfer of the applicant to specialist mental health care.
Legal Topics
Interlocutory Injunctions, Duty of Care, Regional Processing and Refugee Treatment, Mental Health Care Obligations, Continuing Torts
Administrative Law Constitutional Law Human Rights Torts Interlocutory Injunctions Duty of Care Regional Processing and Refugee Treatment Mental Health Care Obligations +1 more

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Parties

FRX17 as litigation representative for FRM17

Applicant

Minister for Immigration and Border Protection

First Respondent

Commonwealth of Australia

Second Respondent

Secretary of the Department of Immigration and Border Protection

Third Respondent

Procedural Posture

Application for Interlocutory Injunction / Interlocutory; Orders and Reasons on Injunction

Legal Issues

  1. 1 Whether the respondents owe the applicant a duty of care to provide a level of medical care reasonably designed to meet her mental health needs while on Nauru
  2. 2 Whether, in the circumstances, the duty includes an obligation to remove the applicant from Nauru to a place with appropriate specialist child mental health care
  3. 3 Whether the Court has the power to grant mandatory interlocutory injunctive relief of this character

Ratio Decidendi

Given the existence of a serious question to be tried as to the respondents' duty of care, the inadequacy of mental health facilities on Nauru for the applicant, and the extreme and immediate risk of suicide or self-harm, the balance of convenience strongly favours the grant of an interlocutory injunction requiring the applicant be transferred to a specialist child mental health facility for assessment and treatment outside Nauru in accordance with expert recommendations.

Court Disposition

Interlocutory injunction granted requiring transfer of the applicant to specialist mental health care.

Orders

  • FRX17 appointed litigation representative for FRM17.
  • Respondents must, as soon as reasonably practicable and until hearing or further order, place the applicant in a specialist child mental health facility with comprehensive tertiary level child psychiatric assessment in accordance with medical recommendation.