243 FCR] PLAINTIFF S99/2016 v MNR FOR IMMIGRATION 17 FEDERAL COURT OF AUSTRALIA Plaintiff S99/2016 v Minister for Immigration and Border Protection and Another [2016] FCA 483 Bromberg J 28, 29 April, 6 May 2016 Private International Law — Choice of law — Torts — Proper law — Where putative duty of care required Minister of the Commonwealth to procure a safe and lawful abortion for a person assessed as a refugee offshore — Abortion made available in Papua New Guinea — Where apprehended breach of duty an omission to procure an abortion that is safe and lawful — Whether proper law of apprehended negligence the law of Australia or the law of Papua New Guinea. Torts — Negligence — Duty of care — Unauthorised maritime arrival claimed refugee status having been transferred to Republic of Nauru — Found to be refugee and temporarily settled — Where rape occurred causing pregnancy and physical and psychological harm — Where dependence upon Commonwealth of Australia for financial and medical needs — Where abortion only able to be procured with the assistance of the Commonwealth — Whether duty of care to exercise reasonable care to procure a safe and lawful abortion — Consideration of whether Commonwealth voluntarily assumed responsibility for refugee — Consideration of statutory scheme giving rise to relationship between refugee and Commonwealth and refugee’s continued presence on Nauru — Whether higher standard for the imposition of a duty of care on public authorities applicable to foreign public authorities — Migration Act 1958 (Cth), ss 198AA, 198AB, 198AD, 198AHA. Torts — Negligence — Breach of duty — Standard of care — Duty to procure safe and lawful abortion for refugee — Abortion made available in Papua New Guinea — Where alleged legal risk attendant upon abortion in Papua New Guinea arising out of criminal law of Papua New Guinea — Where alleged medical risk attendant upon abortion in Papua New Guinea arising out of unavailability of medical equipment, experience, and expertise alleged to be required in order to adequately guard against risk — Where government policy not to bring person who was an unauthorised maritime arrival to Australia — Whether legal and medical risks of abortion in Papua New Guinea such that duty of care not discharged — Whether apprehended breach of duty. 18 FEDERAL COURT OF AUSTRALIA [(2016) Immigration — Jurisdiction — Privative clause decisions — Decision not to be challenged, appealed against, reviewed, quashed or called in question in any court — Decision not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account — Where injunction sought to restrain apprehended commission of tort of negligence — Where issue of injunction would require or prohibit the doing of conduct which would constitute the making of a decision that is a privative clause decision — Whether jurisdiction to issue injunction — Whether limitation on jurisdiction in relation to privative clause decisions limited to applications for judicial review — Migration Act 1958 (Cth), ss 198AHA, 198B, 474. Equity — Equitable remedies — Injunctions — Injunctions quia timet — Whether injunction will issue to restrain apprehended commission of the tort of negligence — Whether requirements for issue of injunction to restrain action of the Commonwealth higher than that for private citizen. Equity — Fiduciary duties — Relationship between Commonwealth and unauthorised maritime arrival found to be a refugee in Nauru — Whether relationship fiduciary — Whether breach of duty not to procure any abortion for the applicant that is not safe and lawful — Whether putative duty a fiduciary duty. Section 198AA of the Migration Act 1958 (Cth) (the Act) relevantly provided that the purpose of Subdiv B of Div 8 of Pt 2 of the Act, inter alia, was to provide a scheme for the processing of unauthorised maritime arrivals in Australia (so defined in s 5AA of the Act) that facilitated the taking of those persons, including unauthorised maritime arrivals in respect of whom Australia had or may have had protection obligations under the Convention Relating to the Status of Refugees 1951, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees 1967, done at New York on 31 January 1967 (the Refugees Convention), to any country designated as a regional processing country pursuant to s 198AB of the Act. That scheme was given effect, inter alia, by s 198AD(2) of the Act, which relevantly required the Minister to remove an unauthorised maritime arrival from Australia to a regional processing country, and s 198AHA of the Act, which relevantly conferred on the Commonwealth the power to take any action, or cause any action to be taken, in relation to a regional processing arrangement or the regional processing functions of the other country to which a person was taken under s 198AD. Pursuant to these provisions, the applicant, who arrived in Australia by boat and without a visa, was classified as an unauthorised maritime arrival and removed to the Republic of Nauru (Nauru), a designated regional processing country. There, the applicant was detained, but was found by the Nauruan authorities to be a refugee within the meaning of the Refugees Convention and was therefore granted a temporary settlement visa. It was not in dispute that the applicant suffered from epilepsy, or another psychogenic disorder, which caused her to have seizures. During one such seizure, the applicant was raped, as a result of which she fell pregnant. The applicant sought that the Commonwealth procure for her an abortion, which it was admitted could not occur on Nauru nor without the Minister or the Commonwealth’s assistance. The Minister made available for the applicant such a procedure in Papua New Guinea. It was not in dispute that the Commonwealth could have procured an abortion in Australia or other nearby countries with an appropriate legal framework and 243 FCR 17] PLAINTIFF S99/2016 v MNR FOR IMMIGRATION 19 medical facilities. However, in relation to Australia, the Commonwealth had a policy which provided that the power conferred by s 198B of the Act, which permitted a person in the position of the applicant to be brought to Australia temporarily, would only be exercised in an exceptional case, and it had been determined that in this case the circumstances were not exceptional. The applicant applied for injunctive (and associated declaratory) relief to restrain the Minister and the Commonwealth from breaching an alleged duty of care in negligence (and a corresponding fiduciary duty) to exercise reasonable care to procure for her a safe and lawful surgical abortion. She contended that this could not be done in Papua New Guinea because it was not certain that such a surgical procedure would be lawful, and because she was unable to receive proper psychiatric, neurological, surgical and anaesthetic care in Papua New Guinea. It was not in dispute that the applicant was, as a result of agreements entered into between the Commonwealth and Nauru to facilitate Nauru’s status as a regional processing country, wholly reliant on the Commonwealth financially, and that pursuant to those agreements, the Commonwealth had provided education, welfare, and health services to the applicant, including for the purposes of caring for the physical and psychological injuries which she suffered as a result of the rape. Against this background, the Minister denied that the proper law of the putative tort was the law of Australia (contending instead that it was the law of Papua New Guinea), denied that a duty of care was owed (particularly given the higher threshold required to impose a duty of care on a statutory authority), and denied that any such duty would be breached by reason of the failure to procure an abortion outside Papua New Guinea. In particular, in relation to whether or not the procuring of an abortion in Papua New Guinea constituted a discharge of the duty of care, the Minister contended that there was no legal risk to the applicant personally of obtaining an abortion in Papua New Guinea because such conduct, in the applicant’s circumstances, would not constitute an offence against the Criminal Code Act 1974 (PNG), and, whilst not generally challenging the applicant’s case that absent proper neurological, psychiatric, anaesthetic and gynaecological expertise, she would be exposed to physical and psychological risks if she obtained an abortion, also contended that those risks did not arise. Thus, the determination of the apprehended breach of duty in part depended on whether, as a question of fact, the necessary expertise was available for the applicant in Papua New Guinea. In any event, the Minister contended that if a duty existed and it were breached, whilst an action for damages may have lain against him once damages were suffered by the applicant, an injunction could not issue to restrain him from breaching the alleged duty of care because any such injunction would require the taking of action by the Minister or the Commonwealth, or would prohibit the taking of an action, which could be performed using statutory powers including those conferred by ss 198B and 198AHA of the Act. This, it was submitted, was beyond the Court’s jurisdiction, because it would constitute the subjecting of a privative clause decision to an injunction. Relevantly, s 474A(1) of the Act provided that a privative clause decision could not be challenged, appealed against, reviewed, quashed or called in question in any court, and was not subject to prohibition,