Last Updated on 07/04/2021 by National Justice Project
WARNING: This story contains detail that may be distressing to some readers, including descriptions of suicide. If you are experiencing distress and are in need of support, please contact Lifeline on 13 11 14.
“EWR18 was a key case in securing medevac for refugees”: Emma Hearne
Like any parent, for EWR 18 (as the person was known to protect their identity) their children’s health and safety was the most important thing in the world. Yet the Australian Government placed them in a terrible situation where they could not provide their children with a healthy, happy and stable childhood.
When one of their children committed suicide, EWR18 felt utterly hopeless, and the entire family suffered from deep psychological trauma that needed urgent attention. The Federal Court case was EWR 18’s attempt to secure the safety, wellbeing and medical care that all children deserve. Thankfully, the Minister was ordered by the court to evacuate the family from Nauru to a place where they could receive the specialist care they needed.
In the Case File below we invite you to learn more about how EWR18 successfully forced the Government to evacuate them from such a damaging situation.
– Emma Hearne, National Justice Project Senior Solicitor
After court proceedings were brought against the Minister for Home Affairs in relation to three applicants in offshore detention, the Federal Court considered whether to grant an injunction arising from evidence of their significant and deteriorating physical and mental health issues. In addition, they considered whether the ordering of an injunction would create an ‘imbalance of convenience’ to the Government.
The first applicant (EWR18) brought an action against the Minister for Home Affairs to remove her and the other applicants from detention on Nauru for urgent medical treatment in Australia. EWR18 was the mother of the second applicant, and the third applicant was EWR18’s daughter-in law, whose husband (EWR18’s eldest son) committed suicide on Nauru in 2018.
The three applicants fled their country in 2013, travelling by boat to Australia and were intercepted by the Australian Border Force and Australian Customs. All three were taken to Christmas Island in July 2013 and later transferred to Nauru in 2014. During this four-year period and after the suicide of EWR18’s son, the applicants’ mental and physical health deteriorated significantly.
A letter was sent to the Minister and the Australian Government Solicitor (AGS) requesting immediate removal of the applicants from Nauru on the 26 July 2018. The letter contained details of EWR18 attempting suicide on multiple occasions, as well as instances of self-harm. The second applicant, EWR18’s younger son, having been exposed to his brother’s suicide, also presented with flat mood and in a highly distressed state. He was believed to be at high risk of self-harm and suicide and later attempted to cut himself twice, reporting he wanted to ‘be with his brother.’ The third applicant was described as also showing signs of obvious distress, later refusing food and fluids under the unresolved circumstances surrounding her husband’s suicide.
The letter maintained the Commonwealth was on notice regarding the living conditions on Nauru and the ill-equipped mental health facilities available. Therefore, the Commonwealth had a duty to act in removing them from Nauru to an environment where adequate medical treatment was possible.
A further letter was sent on the 14 August, referring to the initial letter but tabling further concerns and included reports from psychiatrists and doctors. They recommended transfers to an inpatient psychiatric facility for EWR18 and the third applicant, and inpatient child and adolescent care for the second applicant.
After no reply from the Minister, a further letter was written to the AGS on 29 August 2018, detailing further deterioration in the health of the applicants. On the 13 September 2018, an email was sent by the applicants’ solicitor referring to previous correspondence and a lack of response from the Minister. After the continuous lack of response, the applicant’s solicitor advised she had instructions to commence legal proceedings.
The legal issue
The applicants sought ‘mandatory interlocutory relief’, which was submitted under the Migration Act 1958 and s 61 of the Constitution, stating that the Commonwealth was under a duty of care as they had transferred the applicants from Christmas Island to Nauru and maintained significant involvement in the day-to-day operation of health care, education, housing and welfare. Therefore, the deterioration of the applicants’ health constituted a breach as they were failing to provide them with safe and appropriate medical facilities and treatment.
The Court placed emphasis on the overwhelming evidence of the applicants’ ill health. It was not contentious that the Court had jurisdiction to consider the injunction. The Minister did not consent to or oppose the orders sought in the injunction, and the Minister gave no explanation for not providing a response to the applicant’s numerous urgent requests.
The balance of convenience was perceived by the Court to greatly favour the applicants, which was not challenged by the Minister. For the purposes of empowering the injunction, the Court ruled there was a serious question to be tried regarding the existence of a duty of care.
What was held:
The Federal Court ordered the Minister and his department transfer the applicants to a place where they could access the specified treatments for their respective physical and mental issues.
The applicants were to be assessed in a tertiary hospital to identify necessary treatment, which was then to be administered by those hospitals and not by the medical service organisation available to them on Nauru.
In the media
- “Strategic litigation, offshore detention and the Medevac Bill“, Anna Talbot and George Newhouse, Court of Conscience Issue 13, 2019
Author: Emerson Cross