FEDERAL COURT OF AUSTRALIA Plaintiff S99/2016 v Minister for Immigration and Border Protection [2016] FCA 483 File number: VID 305 of 2016 Judge: BROMBERG J Date of judgment: 6 May 2016 Legislation: Constitution, s 61 Criminal Code Act 1974 (PNG), ss 225, 226, 280, 312 Explanatory Memorandum, Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) Explanatory Memorandum, Migration Legislation Amendment Bill (No 1) 2001 (Cth) Federal Court of Australia Act 1976 (Cth), ss 23, 37AF Judiciary Act 1903 (Cth), s 44 Migration Act 1958 (Cth), ss 5, 5AA, 14, 189, 198AA, 198AB, 198AD, 198AE, 198AHA, 198B, 474, 476A, 484, 486A, Div 8 Pt 2 Subdiv B, Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) Migration Legislation Amendment (Judicial Review) Bill 2001 (Cth) Migration Legislation Amendment Act (No 1) 2001 (Cth) Migration Litigation Reform Act 2005 (Cth) Cases cited: "R" v Independent Anti-corruption Commissioner (2016) 90 ALJR 433 AB v Western Australia (2011) 244 CLR 390 Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 Alexandrou v Oxford [1993] 4 All ER 328 Al-Kateb v Godwin (2004) 219 CLR 562 Amaca Pty Ltd v Frost (2006) 67 NSWLR 635 Amaca Pty Ltd v the State of New South Wales (2004) 132 LGERA 309 Annuity and Rent Charge (1744) 1 Eq Ca Abr 31; 21 ER 851 Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 Beyazkilinc v Manager, Baxter Immigration Reception and
Processing Centre (2006) 155 FCR 465 BHP Billiton Iron Ore Pty Ltd v National Competition Council (2007) 162 FCR 234 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651 Breen v Williams (1996) 186 CLR 71 Brodie v Singleton Shire Council (2001) 206 CLR 512 Brookfield Multiplex Ltd v Owners Corporation Strata Plan No 61288 (2014) 254 CLR 185 Caltex Refineries (Qld) Pty Ltd v Stavar (2009) 75 649 Capital and Counties plc v Hampshire County Council [1997] QB 1004 v Freehills (2013) 303 ALR 445 City of Kamloops v Nielsen (1984) 10 DLR (4th) 641 Clay v Clay (2001) 202 CLR 410 Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 Cubillo v Commonwealth (2001) 112 FCR 455 Distillers Co (Biochemicals) Ltd v Thompson [1971] AC 458 v Victoria Aid (2005) 223 CLR 1 Dyno Wesfarmers Ltd v Knuckey [2003] NSWCA 375 Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 Fernando v Minister for Immigration and Citizenship (2007) 165 FCR 471 Graham Barclay Oysters Pty Limited v Ryan (2002) 211 CLR 540 Graigola Merthyr Company, Limited v Mayor, Aldermen and Burgesses of Swansea [1928] Ch 235 Hedley Byrne and Co Ltd v Heller & Partners Ltd [1964] AC 465 Hoffmann v Boland [2013] NSWCA 158 Hopkins v Australia Pty Ltd (No 3) [2014] FCA 1043 Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 Hunter and New England Local Health District v McKenna (2014) 253 CLR 270 Hunter Area Health Service v Presland (2005) 63 NSWLR
consultations an abortion was discussed with the applicant. To the extent that that evidence contradicts what the applicant said in cross examination, I prefer the documentary evidence. 103 Whilst the following evidence of Ms Noora Ali supports a finding that a mental health officer said an abortion might take place in Papua New Guinea, neither Ms Ali or the record of the appointment with Dr Sewell suggests that the comment was made whilst the applicant saw Dr Sewell. 104 Ms Ali is an interpreter working in Nauru. She deposed that she remembered translating for meetings or appointments that the applicant had on at least two occasions. She does not remember the dates of those meetings. She recollects that one was at the applicant’s home and that the other was at the Hospital. She recalls that each meeting was with a person from the Settlement Clinic mental health unit and a psychologist. Ms Ali deposed that she recalls that the applicant told the mental health unit person and the psychologist that she was pregnant. She described to them how the pregnancy had happened. The applicant said that she wanted to have an abortion as soon as possible. Ms Ali does not recall a reply given to the applicant but thinks that something was said along the lines that they would do their best or that they needed to work on it. Ms Ali also deposed that on the second occasion she translated for the applicant. The applicant again said she was pregnant and that she wanted to have an abortion as soon as possible. The applicant said it needed to happen quickly. Ms Ali recalls that the mental health unit person said that maybe the abortion would happen in Papua New Guinea. Ms Ali deposed that the applicant said in response that she didn’t care, wherever. 105 The applicant accepted that during an appointment with Dr Songco she was given some forms to sign. She did not recall the date of the meeting but other evidence confirms that the appointment occurred on 22 March 2016. The two forms in question are in evidence. The first is headed “Consent for Medical Transfer to Port Moresby”. Relevantly it purports to record the applicant’s agreement to “transfer to Port Moresby for the purposes of medical treatment/investigation”. The document states: I have made this decision on my own free will, with no threat or punishment made to me. I understand I will return to Nauru upon completion of medical treatment/investigation. There is no issue that the signature of the applicant is shown on the form. The form is dated 23 March 2016.
408 On the Minister’s approach, despite the wrongful act having occurred in Australia, the standard of medical care in the country where a plaintiff happens to be taken for medical treatment, would determine the applicable standard. That would be so irrespective of the options available to the defendant for procuring the medical assistance. To illustrate by reference to facts not relevantly dissimilar to those at hand: if an employee of the Commonwealth was very seriously burnt on Nauru and, by reason of a procurement of medical assistance done in Canberra, was taken to Papua New Guinea for treatment, rather than to the highly-specialised burns unit at the Royal Brisbane Hospital, on the Minister’s contention, the standard of care would be “attenuated” to the Papua New Guinean standards of medical care. The result would be that the procurement of medical assistance in Papua New Guinea rather than Brisbane would not provide a foundation for the employee to recover for injuries sustained by reason of the absence of a sophisticated burns unit in Papua New Guinea. That could not be the law. It would result in the wrongful act (the careless act of procuring) escaping an assessment as to its reasonableness. The applicant’s circumstances are not relevantly different. It was not suggested by the Minister that they were different because of the applicant’s status. If it matters (which I doubt), and in so far as the Minister relied on the applicant’s consent to travel to Papua New Guinea, I have found that her informed consent was not given. RELIEF Section 474 of the Act 409 The Minister raised, in answer to the applicant’s prayer for injunctive relief, s 474 of the Act. That section, and also the headings of its Part and Division, are as follows: Part 8—Judicial review Division 1—Privative clause 474 Decisions Act are final (1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any on any account. (2) In this section: privative clause decision means a decision of an administrative character