Last Updated on 24/12/2020 by National Justice Project
During her detention on Nauru between 2013 and 2018, a young girl (the Applicant) faced serious mental health deterioration, including major mood disorder and suicidal ideation and intention.
In 2017, the Applicant attempted suicide twice, and despite being urged by an independent child psychiatrist that she needed urgent admission to an appropriate facility, she was kept on Nauru. After the National Justice Project challenged this and proved that the Commonwealth had a duty to provide adequate care, the young girl was finally removed from Nauru on 9 February 2018.
The Applicant was a young girl, who fled her country of origin with her parents and older sister. The family travelled by boat to Australia and arrived at Christmas Island in 2013. They were deemed as “unauthorised maritime arrivals”, as defined under the Migration Act 1958 (Migration Act).
The family was taken by officers of the Commonwealth and placed on Nauru and detained in the Regional Processing Centre. The authorities later assessed the Applicant and her family to be refugees and they were released to reside on Nauru with temporary settlement visas.
The Applicant’s detention on Nauru took a serious toll on her mental health. In early 2017, the Applicant’s mental health began to deteriorate and she began to experience major mood disorder and suicidal ideation and intent, reporting voices telling her to self-harm and complete suicide.
In December 2017, the Applicant attempted suicide twice. Following the second attempt, an independent child psychiatrist reviewed the Applicant and concluded that she required urgent admission as an inpatient to a specialist tertiary level child psychiatric facility where she could have a comprehensive assessment by a qualified specialist. Such a facility was unavailable on Nauru.
The Applicant’s legal representatives made numerous attempts to persuade the Respondents (The Minister for Immigration and Border Protection) to transfer the Applicant from Nauru, but the Respondents denied those requests.
The legal issue
The Court was required to determine whether the Commonwealth had an obligation to remove the Applicant from Nauru to receive adequate health care.
The Court also had to consider if it was appropriate to grant a mandatory interlocutory injunction to compel compliance by the Commonwealth.
What was held:
The Applicant alleged that the Commonwealth, under the Migration Act and executive power under section 61 of the Constitution, owed the Applicant a duty of care on the basis that it transferred the Applicant from Australia to Nauru, maintained significant involvement in the day-to-day operation of regional processing activities in Nauru, and maintained a significant involvement in the day-to-day healthcare, education, housing and welfare of the Applicant.
The Applicant alleged the Commonwealth was in breach of this duty by not providing adequate care, placing the Applicant in further risk of harm.
It was established that there was a reasonably arguable case, requiring determination at a later date, that the Commonwealth owed a duty of care to provide appropriate mental health treatment.
And it was deemed appropriate to grant a mandatory interlocutory injunction to ensure the applicant was treated appropriately in the meantime. The Commonwealth was ordered to remove the Applicant from Nauru.
In the media
Author: Phoebe Cuttler