How we were misled about Abyan's case

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 fit. 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.'

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.