The case concerned the transfer of a refugee on Nauru to PNG for the purpose of an abortion and raised questions about the Australian government's duty of care.
The applicant in this case was a young African woman who arrived in Australia by boat on 17 October 2013. The applicant had a history of trauma. She was transferred to Nauru by Australian authorities pursuant to Australia’s agreement with Nauru, against her will. On Nauru the applicant was detained at the Regional Processing Centre (RPC) until she was found to be a refugee. In November 2014 the applicant was granted a Temporary Settlement Visa and moved into a residence in the Nauruan community. On 31 January 2016 the applicant submitted that she went outside her room to make a phone call, had a seizure and fell unconscious. She became pregnant as a result.
The applicant received medical support on Nauru for her pregnancy and psychological and/or neurological conditions from International Health and Medical Services, a private company contracted by the Australian Government to provide health services to asylum seekers and refugees on Nauru. The applicant submitted that she told an IHMS doctor on Nauru that she wished to have an abortion ([101]). The fact that the applicant required an abortion was not in contest between the parties. However this procedure was not expected to be straightforward, due to the applicant’s neurological and psychological conditions, poor mental health and physical complications.
The applicant was taken to PNG on 6 April 2016. While the exact circumstances of her transfer were unclear, Bromberg J held that the evidence supported a finding that the Australian Minister for Immigration and Border Protection (Minister) ‘offered and the applicant agreed to be taken to another country so that her pregnancy could be terminated’. However she was not offered a choice of destinations and ‘whilst the applicant gave her consent to be taken to another country, she did not give her approval to having an abortion in the medical and legal setting in relation to which she now complains’ ([111]). IHMS recommended the applicant be transferred to Australia for the procedure, however the Minister instead arranged for the applicant to be taken to PNG for the procedure. The applicant argued that it would be neither safe nor legal for her to undergo the termination procedure in PNG. 