The Australian government has been criticized for a raft of its asylum seeker policies, perhaps the most notorious of which is its removal of “unlawful non-citizens” to two offshore processing centers—one in Manus Island in Papua New Guinea and the other in the Republic of Nauru—and the protracted detention of asylum seekers in those facilities.
This is an ongoing human rights concern. Notwithstanding the government’s announcement late last year that it would settle some of these detainees in the United States, the Prime Minister has said that that arrangement is a “one-off”; it will not be repeated. The Immigration Minister has stated that the offshore detention policy will not change and that Nauru, at least, “will remain in its current status forever”. In any event, the fate of the US-Australia deal is anything but certain, after President Trump blasted it as the “worst deal ever”.
Many have turned to the courts in each of the three countries for redress. There have, of course, been challenges to Australia’s legal authority to detain people offshore. In the Australian courts, at least, these efforts have failed. The High Court has held that the arrangements by which Australia detains asylum seekers in Nauru are lawful. In the Court’s view, Australia’s conduct is authorized by the Constitution and valid laws created thereunder.
So, if Australia is entitled, under its Constitution, to remove asylum seekers to another island, and hold them in detention there, what of their care? Who is responsible for asylum seekers’ wellbeing while in these centers? Is it Australia? The host nation? Or private contractors providing services? Which country’s law applies? Assuming someone is responsible, how long does that responsibility last? What about when asylum seekers are recognized as refugees, released into the community of one of these island nations, and are awaiting resettlement? What happens then—when they are not ‘detained’, but have little control over their lives? Does an obligation inhere in the host nation, or Australia, or someone else, for the refugees’ protection? Will the law step in to grant a remedy for an asylum seeker or refugee who has suffered, or fears she will suffer, harm?
This panoply of complex moral, legal and political questions was brought to the fore in a recent Australian Federal Court case. In essence, a Justice of that Court held that the Australian government owed a duty of care to a refugee in Nauru who was dependent on the Australian Minister for Immigration and Border Protection, and the Commonwealth of Australia, for her care. While the facts of this case are rather unique, the doctrinal basis upon which the Court found the government owed the refugee a duty of care, and the Court’s decision to step in and grant her relief, are important developments for displaced people under Australia’s control.
The case of S99
The applicant, given the pseudonym “S99”, is from a country in Africa and at the age of about seven was subjected to a procedure which, while not detailed in the public record of the Court’s judgment, has an ongoing medical impact on her. When S99 was 16, she witnessed the murder of her sister and suffered seizures thereafter. At the same age she was married to a 45-year-old man with other wives, who beat her. She became pregnant and fled to where her mother lived. She divorced her first husband and later married her second husband, but her first husband tried to force her to return to him. Fearing she would be killed by stoning, S99 fled, leaving her son with her mother. She traveled first to Indonesia and then by boat to Australia, arriving in October 2013.
Pursuant to the requirements of the Migration Act 1958 (Cth), S99 was designated an “unlawful non-citizen” and an “unauthorised maritime arrival”, and so was detained and taken to the immigration detention center in Nauru. The Commonwealth of Australia participated in her detention, maintenance and care, and paid for all aspects of her detention. She was detained there for over a year—until November 11, 2014, whereupon she was recognized as a refugee and released from detention, and awaited resettlement. After her release from detention, S99 could travel anywhere in Nauru, but she could not leave the island. While she awaited resettlement, she remained entirely dependent on the Minister for food, shelter, security and healthcare. The Commonwealth paid for her accommodation, provided her healthcare and all other services.
On January 31, 2016, while or shortly after suffering a seizure, S99 was raped. She became pregnant. She wanted an abortion, but termination of pregnancy is illegal in Nauru. Correspondence then ensued between S99’s lawyer, the Australian government, and the medical director of the Australia’s health services provider for asylum seekers and refugees in Nauru, in relation to the abortion. All agreed that S99 needed an abortion, and that she could not obtain an abortion without the assistance of the Australian government.
The Minister offered to take her to another country to terminate her pregnancy. She was taken to PNG but S99 did not give her informed consent to the abortion in that setting. The day after her arrival in PNG, S99’s lawyers initiated this legal proceeding on her behalf and all action was halted.
S99 brought a claim against the Minister and the Commonwealth in the tort of negligence. In order to be liable in negligence, a defendant must owe to a plaintiff a specific duty of care and must breach that duty. S99 alleged that the Minister and Commonwealth owed her a duty of care to procure for her a safe and lawful abortion. She argued that neither a safe, nor lawful abortion could be procured for her in PNG and so she feared a breach of the duty owed to her. Rather than wait for the breach to occur and later seek damages (which is the normal course for a negligence action), S99 sought an order restraining the government from breaching its duty to her.
The Court found in S99’s favor. It found that the Minister and the Commonwealth owed to S99 a duty of care to procure for her a safe and lawful abortion. It ordered that the abortion not be procured in PNG because that would breach the duty.
The Court found that an abortion in PNG would not be lawful because abortion is only legal in PNG in limited circumstances and there was a risk that S99 would be prosecuted. An abortion in PNG would not be safe because of S99’s circumstances. S99 was a victim of rape and trauma, suffered epilepsy and had been subjected to a “procedure” that had a relevant medical (gynecological) effect upon her. Her particular circumstances necessitated a doctor or doctors who could perform an abortion with the appropriate neurological, psychiatric, anesthetic and gynecological care. This standard of care could not be provided in PNG.
The Court ordered that the respondents “cease to fail to discharge the responsibility they assumed to procure for [S99] a safe and lawful abortion”, that they not procure for her an abortion that would expose her to criminal liability, nor to procure for her an abortion that did not meet her medical requirements. The effect of the Court’s orders was that government was required to take S99 to a place where an abortion, that was both legal and adhered to the standards of care required in her circumstances, could take place.
This case is important in three respects. First, the Court’s finding regarding the existence, nature and scope of the government’s duty of care to S99 is unique. On prior occasions, the courts have held that the Commonwealth owes certain duties of care to individuals being held in (onshore) immigration detention. But the duty of care owed to S99 was novel. There is no other case where the Australian government has been held to owe a duty to a refugee in a foreign country, and of course, no other case where the government owed a duty quite like this one. The case demonstrates that where a plaintiff alleges a duty of care is owed to them, a Court will assess, using orthodox principles, the degree of control the government exerted over the plaintiff, and the plaintiff’s vulnerability, in ascertaining whether (and to what extent) the government owes them a duty of care. The fact that a plaintiff is in another country and that a duty might require her removal to a third country will not defeat her claim.
Second, this case represents the first time an Australian Court granted a final injunction to restrain an apprehended breach of a duty of care. The Court noted the lack of precedent but found that there was no doctrinal barrier for the grant of such relief. This is significant. As noted above, actions in negligence are usually brought after the harm has occurred (this is no surprise; it is rare that a plaintiff will perceive the risk before she is harmed). However, as the Court noted, “it is better to restrain in time than to seek a remedy after the injury has been inflicted, it is wiser still where the infliction of injury will be irremediable.”
This is a welcome development. It will allow asylum seekers and refugees who reasonably apprehend they will be harmed by the negligence of the Australian government to seek redress, in an Australian Court, before they are injured. For asylum seekers with medical conditions that are going untreated, or with other physical or psychiatric needs, injunctive relief will no doubt be an important instrument to obtain redress.
Third, and more broadly, the way forward for asylum seeker protection in Australia may be through tort actions. Perhaps a high volume of suits could signal to the government that its policies are untenable. Activists should watch this space—tort class actions filed on behalf of asylum seekers detained outside the mainland are currently pending in the State of Victoria’s Supreme Court. But there is always the risk that the government could override common law rights by statute: consequently, the future is anything but clear.
Colette Mintz holds a BA/LLB with First Class Honors from Monash University in Melbourne, Australia. She is currently an LLM candidate at Columbia Law School which she attends as a Rotary International Global Grant Scholar.
 See, e.g., Zeid Ra’ad Al Hussein, U.N. High Commissioner for Human Rights, Statement at the Interactive Dialogue on the Human Rights of Migrants at the 29th session of the Human Rights Council (June 15, 2015), http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=16076&LangID=E.
 See, e.g., Paul Karp and Paul Farrell, Refugees held in Australian offshore detention to be resettled in US, The Guardian (Nov 12, 2016).
 See, e.g. Julie Pace and Rod McGuirk, US: Trump ‘unbelievably disappointed’ in Australia deal, The Washington Post (Feb 2, 2017); US-Australia refugee deal: Trump in ‘worst call’ with Turnbull, BBC News (Feb 2, 2017).
 On 26 April 2016, the Supreme Court of PNG held that the forcible taking and detention of asylum seekers to the Manus Island detention center in PNG was unconstitutional and therefore illegal. Namah v Pato  PGSC 13; SC1497 (Papua N.G.). As at the time of this writing, the Manus Island detention center remains open. There have also been attempts at similar litigation in Nauru. See, e.g., Jane Lee, Asylum seekers: Nauru’s top court may be forced to decide whether detention is lawful, Sydney Morning Herald (Aug. 18, 2015), http://www.smh.com.au/national/asylum-seekers-naurus-top-court-may-be-forced-to-decide-whether-detention-is-lawful-20160818-gqvm5i.html. According to the Australian government, both detention facilities are now ‘open’ centers, affording asylum seekers greater freedom of movement. See Parliament of Australia, Australia’s Offshore Processing of Asylum Seekers in Nauru and PNG: A Quick Guide to Statistics and Resources (June 30, 2016), http://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1516/Quick_Guides/Offshore.
 Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 90 ALJR 297 (Austl.).
 Plaintiff S99/2016 v Minister for Immigration and Border Protection  FCA 483 (Austl.).
 See, e.g., MZYYR v Secretary, Department of Immigration and Citizenship (2012) 292 ALR 659 ¶20 (Austl.) (Gordon J stating that it was not in dispute that the Commonwealth owes a duty of care to a person held in immigration detention to provide the person with the level of medical care reasonably designed to meet their healthcare, including psychiatric, needs); Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 499 ¶21 (Austl.) (Gleeson CJ holding that “an alien does not stand outside the protection of the civil … law” and “[i]f those who manage a detention centre fail to comply with their duty of care, they may be liable in tort.”); see also AS v Minister for Immigration and Border Protection  VSC 593 (Austl.) (a class action currently on foot in the Victorian Supreme Court in relation to injury suffered by asylum seekers in detention, where the government defendants have accepted that the Commonwealth of Australia owes a non-delegable duty of care to provide reasonable health care to persons in detention in Christmas Island, and have admitted it is also “arguable” that the Minister also owed such a duty).
 See Plaintiff S99/2016 v Minister for Immigration and Border Protection  FCA 483 139 ¶495 (Austl.). It is also noteworthy that the Court issued a prohibitory injunction (“the Respondents cease to fail to discharge” their duty), rather than an affirmative, mandatory injunction. The orders did not require the respondents to take S99 to Australia specifically, as there were alternative locations (New Zealand, Singapore) for her to receive safe and lawful abortion. However, it may be that in the future the Court will have to determine whether it is able to issue a mandatory injunction in such a case.
 Kamasaee v Commonwealth of Australia & Ors, No. S CI 2014 6770, a class action on behalf of Manus Island detainees, is listed for hearing on 1 May 2017, and AS by her litigation guardian v Minister for Immigration and Border Protection & Ors, No. S CI 2014 4423, a class action on behalf persons detained in Christmas Island (an Australian territory) is listed for hearing on 15 March 2017. See supra related decision note 7.