Newly released FOI documents on the Abyan case reveal that DIBP and Minister Peter Dutton misled Parliament and the Australian people. Prime Minister Turnbull's decision to back the Department and Minister's version of events again raises questions about his judgement. Human rights lawyer, Kellie Tranter, who obtained the documents is calling for a Royal Commission.
In a press release dated 17 October 2015, Minister Dutton accused legal advocates for Abyan of fabrications, political agendas and lies. In that same press release Minister Dutton stated:
‘The woman has decided not to proceed with the termination.’
That assertion was far too general, unqualified and patently incorrect according to the information known to his Department. Yet it’s not the first time Minister Dutton has used extreme yet ambiguous language to describe the intentions of those seeking to protect human rights only to be caught wrong-footed courtesy of the actions taken by senior bureaucrats in his Department.
The FOI documents reveal that on 1 September 2015, Abyan first disclosed to a Connect Settlement Services Case Manager that she had been sexually assaulted. She did not want the assault reported to the Nauruan police and was referred to International Health and Medical Services (IHMS) who were first made aware of her request for termination of pregnancy on 3 September 2015.
On 14 September 2015, the DIBP received advice that Abyan wished to undergo a termination of pregnancy. Three days later, IHMS provided the DIBP with a Request for Medical Movement to Australia for the purpose of undergoing termination of pregnancy services. The Request noted that
‘Should she [Abyan] not be transferred, there are risks of deteriorating mental health and psychological distress relating to an unwanted pregnancy under these circumstances.’
Over two weeks later, an urgent letter urging access to termination of pregnancy, presumably sent by Abyan’s lawyers, was raised by Peter Dutton’s chief of staff, Steve Ingram, with Cheryl-ann Moy (DIBP First Assistant Secretary Children, Community & Settlement Services Division), Neil Skill (DIBP First Assistant Secretary Detention Services Support Group) and Amanda Little (DIBP Assistant Secretary Detention Health Services). Minister Dutton was seeking "some quick advice on options".
The email response from Mr Skill was to
‘continue to seek on-island solution for the next few days, mindful of the implications of delays and subsequent treatment options.’
In that same email Mr Skill asked
‘Can we revisit on-island possibilities with Nauru before resorting to Australian based treatment?’
On 6 October 2015, Mr Skill and Ms Little received an email from the Assistant Director, Health Capability and Scrutiny Section Health Services Branch [name redacted] attaching a Minute which recommended the transfer of Abyan to Australia for termination services. Interestingly the Minute suggests that
‘there is a risk that once in Australia she [Abyan] will join legal action which would prevent her return to Nauru after completion of medical treatment. High profile anti-detention and anti-regional processing advocates have been lobbying for the provision of termination services and will continue to lobby publicly, including referencing the alleged sexual assault.’
Although Mr Skill agreed to the transfer of Abyan to Australia the same day, it was the content of the Minute which created the framework for Departmental suspicion of Abyan and her intentions.
On 8 October 2015, Michael Pezzullo, Secretary of the Australian Department of Immigration and Border Protection, emailed Pip De Veau of the Border force legal department, but its contents have been redacted.
On 14 October 2015, there were numerous emails between Departmental officials trying to ascertain what, if any, decisions had been made by Abyan in relation to her treatment. If Abyan had declined the termination of her pregnancy at Marie Stopes International Australia and written confirmation to that effect was provided, plans were to be put in place to return her to Nauru. It appears that legal advice was provided by the AAT and Removals Injunctions Section of the DIBP but it also has been redacted.
In an email from Mr Skill to James Watson (DIBP Commander, Detention Operations) and Clive Murray (DIBP Strategic Border Command) dated 14 October 2015 Mr Skill asked
‘Can we please be prepared to return this lady to Nauru as soon as Tuesday next week, in the event that she declines to have her procedure? Are we aware of any undertakings to not remove her without notice?….’
After receiving an email from Cindy Briscoe (Deputy Commissioner Support Group Australian Border Force) expressing concern that ‘We will need to keep a focus on this case as it is sure to continue to get a lot of external attention’, Mr Skill confirmed that
‘IHMS will provide counselling to her [Abyan] today if possible, to allow her to come to a decision about proceeding with the termination. We have retained the procedure appointment for Friday. If she decides to proceed, she will then be returned to Nauru as soon as medically fit to travel. If she decides to not proceed, we will make arrangements to have her return to Nauru ASAP. If she continues to vacillate, we will make a decision early next week about return to Nauru. I think the lawyer is buying time so he can seek legal intervention. Amanda, anything else?’
Again on 14 October 2015, Mr Skill emailed Roman Quaedvlieg, Commissioner of the Australian Border Force, Ms Little, Ms Briscoe and Clive Murray to confirm that
‘We are working with IHMS on the welfare aspects to ensure she has, and will have, appropriate support. On review, I need to correct the info regarding having seen the advice from the clinic. I have seen email from IHMS stating she has declined to undergo the procedure, and we are sourcing the written advice from the clinic. My apologies for that inaccuracy. We will have that detail secured before any movement occurs. IHMS are also looking to engage with [redacted] tomorrow to get some context around the refusal, to inform their support. She may well change her mind and say she will have the procedure just to stall the movement. Given the appointments are quite difficult to secure, and the clinic has indicated they will not hold appointments for her due to her refusal, I will be recommending the transfer proceed and any further requests for treatment be considered when made and with due consideration of extant policy regarding termination of pregnancy services.’
To alleviate any potential hiccups with Abyan’s imminent removal from Australia, Mr Skill emailed Ms Little and Mr Watson late in the evening of 14 October 2015. He confirmed:
‘Have had thoughts about IHMS talks with [redacted] in the am. Need to ensure process and content around IHMS talking to her to confirm refusal, BEFORE she is aware of return. Let’s talk in the morning but before [redacted] engages with her please. James can we chat in the am pls about our obligations if she seeks to talk to a lawyer during transfer op?’
The following day, the Director Health Operations Section [name redacted] sent an email to Mr Skill, Ms Little and Mr Watson to confirm that
‘IHMS has this morning advised that an air ambulance is not clinically appropriate for [redacted] as she is fit to travel. She is currently being reviewed by IHMS VIDC GP to confirm her fit to travel status and to confirm that there has been no change in her decision regarding her procedure. As such, grateful if your team could arrange a charter flight with the intent of returning her to Nauru today.’
In what was perhaps a keyboard Freudian slip, Mr Skill sent an email to Ms Little and Mr Watson stating that
‘Given she has declined and also refused an appointment next week, we should love to return her to Nauru asap, ensuring appropriate support for her on the island. Any future request for the procedure will be managed appropriately at the time. As she is fit to travel, Det ops will explore charter options for today or tomorrow.’
Moments later, Mr Skill corrected his email with
‘Move to return her – sorry – not love to.’
Ms Little received an email dated 15 October 2015 but it’s unclear who sent it. What is clear from that email is that Abyan had not changed her mind about her termination procedure. It said:
‘Hi Amanda I just reviewed [redacted]. Unfortunately despite 30 mins on the phone to TIS I was unable to access a Somali interpreter. She does however understand and speak very basic English and was happy to proceed with the consultation. She confirms that she does not want the termination now, but she did make it clear that she hasn’t completely changed her mind and understands that she can access the procedure in NSW up to 20 weeks she is currently [redacted]. She is fit to travel without a medical escort. I also spoke to the doctor at Marie Stopes and he confirmed that she has declined the procedure yesterday (an interpreter was used). She was offered another appointment for next week but she declined…’
Abyan was secretly flown out of the country on the following day.
Three days later departmental officials were called before a Senate Estimates hearing.
On the morning of the Senate Estimates hearing, Ms Little received an email from a person whose name has been redacted which confirmed that
'As per our previous discussions after she declined the procedure I asked her (more than once) whether she had changed her mind and no longer wanted a termination of pregnancy. She consistently said that she still wanted to have a termination of pregnancy, she just didn’t want it that day or the following week.'
Ms Little sent an email back to the person and to IHMS to ask:
'Can you please clarify where you say she hadn’t changed her mind completely.'
Ms Little received a further email at 8.43am saying:
‘When I first consulted [redacted] on Monday 12.10.15, I limited the counselling during the consultation as she was fatigued and I didn’t think it appropriate as it would likely overwhelm her. On 13.10.15 I had another consultation with [Abyan]. I asked whether the procedure had been explained to which she said yes. I also offered to explain the procedure again, but she said no, I asked her if she wanted to see another member of the mental health team, but she declined. Thereafter she told me that she did not want to proceed with the procedure as planned the following day. She said she wasn’t going to attend the Marie Stopes Clinic at all, but I convinced her to attend for the consultation so that she could see the facility, be counselled on the procedure, ask questions regarding the procedure, post-procedure processes etc and reassured her that she could still decline following those discussions. She agreed. I do not have any further information on what was discussed at the clinic — the notes from the clinic state that options were discussed. The doctor at the clinic confirmed that both he and the clinical nurse had spoken to her. The day following her Marie Stopes clinic appointment (15.10.15) I explored her reasons for declining the procedure but she stated that she felt “too mentally unwell” and wouldn’t elaborate. I asked whether it was because she had concerns about the procedure itself, and she said no. I asked whether she had changed her mind altogether and she said no. I offered to re-book an appointment at the Marie Stopes Clinic for 1 week’s time with re-assurance that she didn’t have to proceed if she still wasn’t ready in a week. She declined this offer. She saw a mental health nurse on 12.10.15 and 13..10.15 (mental health consultation includes counselling).'
Ms Little forwarded that email advice to Mr Skill at 8.48 am on 19 October 2015, the morning of the Senate Estimates Hearing. Despite the Department being made aware on 15 October and again on 19 October 2015 that Abyan had never communicated her intention not to have an abortion, the evidence Mr Skill gave the Senate Estimates hearing was that
‘I have seen advice from two medical professionals indicating that she had declined to undergo the procedure on the day and also declined the offer of a scheduled appointment in a week’s time. On the back of that information, I made the determination that there is no medical procedure at this point of time and that the individual should return to Nauru.’
Dutton misleads Parliament 19 October 2015
(cf. last sentence, 3rd para)
The above is a transcript from Hansard 19 October 2015.
Abyan’s hand-written statement – which was photographed and sent to her lawyer – that 'I have been very sick. I have never said thate [sic] I did not want a termination’ thus is consistent with the FOI documents and demonstrably accurate. And they clearly contradict the terse, selective and unqualified public assertions to the contrary by both the DIBP and Minister Dutton, who we assume must have been privy to the information in the unredacted versions of the FOI documents. With that state of knowledge those public assertions clearly were misleading.
Presumably because the background information has not so far been available, there has been no call for a formal explanation of why the DIBP and Minister Dutton misled the public about Abyan’s wishes. Nor has the Minister been asked why Abyan wasn’t given an opportunity to liaise with her lawyers before she was transferred back to Nauru on 16 October 2015, or how and in what circumstances she was made aware that she was to be returned.
These are questions that need to be answered so that the public have a reliable account of how she was treated by those who represent us.
And given the many disconcerting actions-including bribing people smugglers-and public faux pas of the DIBP in the short time since its inception, on top of its participation in this apparent “misinformation”, a formal investigation into the DIBP by an independent body with power to access all relevant information, like a Royal Commission, is already overdue.
Kellie Tranter is a lawyer and human rights activist. You can follow her on Twitter @KellieTranter.
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