TORTURE AND ENSLAVEMENT OF SAMUEL BY DIBP/ABF AND IHMS

Friends, I've recently posted the story of (anonymous) Samuel, an asylum-seeker on Manus Island whose circumstances similar to that of Faysal Ishak Ahmed [#1]. In order to get a quick grip on how -- under the instructions of DIBP/ABF -- the personnel and organisation of IHMS, the "IHMS Personnel", were being involved in the Medevac obstruction, I've just spliced the timelines of the two incidents so as to analyse further.

As for Samuel, he had been admitted to the Pacific International Hospital on February 2017 for his heart problems; spent three nights in ICU and was discharged with some medication. Two doctors at PIH did recommend for further tests and treatment, but the IHMS Personnel had refused to transfer Samuel to Australia.

With Faysal, the IHMS GP1 had seen him on 28/9/2016, and recommended Faysal to take X-ray and blood tests. The anecdotal evidence suggests the IHMS Personnel may have made internal evaluation of those results without informing Faysal. Those test results, which were of non-negative, have not been disclosed by the IHMS GP1 to Faysal.

POLITICAL OBJECTIVES VS COMMON LAW RESPONSIBILITIES

As has been noted in Section VI. of this discussion [#2], the main objective of DIBP has been to prevent the offshore asylum-seekers reaching mainland Australia, which may be developing into legal and political consequences, which in turn threatened the viability of offshore enslavement scheme. The DIBP/ABF had a recognised pattern for refusing offshore medical transfers regardless of the doctor(s) recommendations [PE_004, #3].

(Anonymous)

As has been noted in Section IX [#2], the common law requires the DIBP/ABF who had taken into the custody of these asylum-seekers and placing them at offshore have primary responsibility for these asylum-seekers' health care needs [#4]. Australian judiciary also affirmed such responsibility in the judgment of S99/2016 [#5]. On the one hand, there should be no other logistical or financial difficulty for Commonwealth of Australia to meet the requirements for timely medical transfer. This argument on logistic and other issues had also been discussed in Section IX [#2].

We can therefore conclude that the delays in offshore medical transfer are consciously manufactured by DIBP/ABF and IHMS in accordance with PE_003 directive [#3]. In so doing, the DIBP/ABF and IHMS must be assuming they haven't broken any Australian laws; But are aware that they will be breaking "some" common laws of PNG and Nauru. They however have calculated the refugees will not have the resources to mount legal action in these offshore jurisdictions. Therefore, the Australian Criminal Code Act (1995) of Div. 274 "Torture" and the Div. 270 and ICC law Div. 268.10 in "Slavery", all of them having "extended geographical jurisdiction", do have a special significance in here.

MAIN CONTENTS OF TORTURE AND SLAVERY LAWS

A case of torture exists when authorities have shown deliberate indifference to serious medical needs of prisoner (the person in custody) [#6]. The two pronged test here is to establish (i) the serious medical needs of person in custody and (ii) authorities' deliberate indifference to that need. The situation must meet both conditions.

A medical need is serious if it is one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention [#7]. It is to be noted that, in a detention settings, a physician's recommendation can be sufficient; The second opinion could have made even stronger recommendation, but not necessarily required by law.

The "lay person" here referred broadly as an ordinary, non-medically educated person, who have noticed and observed the serious illness of the prisoner. The prisoner himself/herself can also be that lay person. The court may prepare to accept the lay person's observations and affidavit in certain circumstances.

The deliberate indifference exists when the authorities "(1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; (3) prevents a prisoner from receiving needed or recommended medical treatment" or (4) "persists in a particular course of treatment in the face of resultant pain and risk of permanent injury" [#8][also Sec. IX, #2].

For slavery law, we need to use slightly different way to evaluate any possible criminal conduct. On Medevac situations, one needs to utilise the tests that based on requirements for the personal freedom and inalienable right to health. In Section VII [#2], we've made a detailed discussion that a person (asylum-seeker) has the role of a primary stakeholder in maintaining his/her own health; And that a person has inalienable right to manage his own health with the help of his/her doctor. Any entity (DIBP/IHMS), including the doctors on duty, manipulating and infringing that personal rights of the patient can become the violator of slavery law.

In a commonsense approach, the slavery has taken place when someone or something (i.e. perpetrator) controlling and manipulating the affairs of (enslaved person) as if the perpetrator owns. Such conduct being known in Law as "exercise of any or all powers attaching to the rights of ownership over person". Commonly identifiable rights of ownership have already been listed in Section III [#2].

In my view, the way to understand a perpetrator committing the slavery crime and seeing the perpetrator's practical conduct within the context of slavery law can be quite different from that of any other crimes. Say for example, someone punched your nose and you've got bruises on your face as evidence. So then, you can go to the police and charge that person who caused you bruises for battery and assault. For torture law, the process can be quite similar. However, to identify the crime of slavery can be quite different, as you would see shortly.

ON THE CASE OF SAMUEL

In February 2017, Samuel was admitted to the Pacific International Hospital (PIH). Two of his treating doctors had recommend for further testing and treatment in Australia which are not being available in PIH/PNG.

My calculation is that the IHMS might have firstly send the Request for Medical Movement (RMM) for Samuel to the DIBP/ABF. By the virtue of DIBP Secretary's order PE_003[#3], that request must have been rejected. Remember, this process is DIBP/IHMS internal communication and are not on the public record.

In any event, the IHMS must comply with the order from DIBP. So therefore, IHMS Personnel had internally arranged to have a "negative file reading" from its own cardiologist. Samuel was not informed of this process; nor no consent being taken from him accessing his medical files. On the one hand, Samuel neither had asked for the review of his medical files, nor had requested the opinion of another doctor on his illness.

It turned out that the "negative file reading" for February 2017 medical records has been found to be false! That has been confirmed by an independent cardiologist. In any case, the IHMS had used that false (or) falsified "negative file reading" to overwrite the PIH doctors' recommendation; and kept Samuel on Manus Island.

Samuel was not sent to Australia for further testing and treatment. In the stead, Samuel had been given medication and discharged from PIH.

FROM THE VIEW POINT OF LAW

First, the most important point to keep in mind is Samuel has (1) the right to life and, as the primary stakeholder of his own health, he has (2) the right to manage his own health and (3) the right to be informed about his own medical status and of treatment and (4) the right to his own medical records. On the situation of a person in custody, such as Samuel, those rights still remained.

The roles of IHMS and DIBP/ABF are to "facilitate" the medical needs of a person in custody, such as Samuel, to the extent logistical limitations of the situation has allowed them to. However, the Commonwealth as a government of wealthy and advanced sovereign state within the region, there are no foreseeable difficulty that can have arisen out from having Samuel to move from PIH to Australia [See IX of #2]. When fulfilling medical needs of a person such as Samuel in custody, the authorities (IHMS and DIBP/ABF) must also respect the health rights of person being listed above. Any infringement on those rights by personnel and organisations of IHMS and DIBP/ABF may found to be violating laws.

For the process of IHMS Personnel taking Samuel to Pacific International Hospital, and getting him the treatment by doctors there was not considered violating the law. It may be accepted that Samuel had been in an exceptional circumstances of being in immigration detention on Manus Island of PNG, no alternative medical facilities nor doctors he could choose, and therefore being agreed to at taking him to PIH. The two doctors, who have physically examined him, recommended for further test and treatment.

The DIBP/ABF had acted in contrary to the advise of those two treating doctors at the PIH; DIBP/ABF had violated the law of torture by failing to bring Samuel to Australia to have him further tests and treatment.
=> Australia Criminal Code Act (1995, Cth), Div. 274 Torture. [#10]

274. (2) A person (the perpetrator) commits an offence if the perpetrator:
(a) engages in conduct that inflicts severe physical or mental pain or suffering on a person; and
(b) the conduct is engaged in for any reason based on discrimination of any kind; and
(c) the perpetrator engages in the conduct:
(i) in the capacity of a public official; or
(ii) acting in an official capacity; or
(iii) acting at the instigation, or with the consent or acquiescence, of a public official or other person acting in an official capacity.
Penalty: Imprisonment for 20 years.
274. (3) Absolute liability applies to paragraphs (1)(c) and (2)(c).
274. (5) Section 15.4 (extended geographical jurisdiction--category D) applies to an offence against subsection (1) or (2).

By failing to bring Samuel to Australia for further test and treatment, the DIBP/ABF and its personnel have:
(a)-> engage in conduct that inflicts severe physical pain and suffering on Samuel;
(b)-> engage in that conduct on the discriminatory basis that Samuel has been an offshore immigration detainee;
(c)-> engage in that conduct in the capacity of public official(s) and in the official capacity.

There can have no legal distinction that can be drawn between the DIBP/ABF acting deliberate indifference to, or acting in contrary to, the express instructions of the treating physicians or surgeons and engaging in the conduct that caused deliberate infliction of physical suffering in a non-medical setting [#9].

Now to the application of slavery law. In addition to the (4) listed health related rights, Samuel also has to have the freedom to move where appropriate treatment for him were being available. By denying Samuel to come to Australia for his medical treatment, the DIBP/ABF have restricted his freedom to move. As a result, DIBP/ABF's primary objective of Samuel to be remained on Manus Island processing centre was served. This DIBP/ABF conduct was the exercise of a power that attached to the right of ownership, namely the right to security, over Samuel. The DIBP/ABF intentionally exercised the right to security over Samuel. Therefore, DIBP/ABF have enslaved Samuel.

=> Div. 270.3 Slavery offences

(1) A person who, whether within or outside Australia, intentionally:
(a) possesses a slave or exercises over a slave any of the other powers attaching to the right of ownership commits an offence.
Penalty: Imprisonment for 25 years.

The IHMS Personnel, by themselves and under the instructions of DIBP/ABF, have also violated both torture and slavery laws over Samuel.

THE IHMS CRIME COUNT OVER SAMUEL CASE
(Broadcast continued on 7/11/2021)

Friends, in previous note, we have analysed how DIBP/ABF have violated the laws of torture and slavery when it refused to transfer Samuel to Australia, in spite of the fact that two treating doctors at PIH were recommending Samuel be medically evacuated for further tests and treatment to Australia. When we are looking at obstruction pattern of DIBP, on PE_004 federal/high court case of S99/2016 for example, we can see the DIBP had decided against the recommendations of 4 medical experts to transfer a women asylum-seeker on Nauru to Australia. The IHMS organisation, therefore, would have no choice but to follow the order from DIBP when the RMM for Samuel had been rejected by DIBP.

By organising the "negative file reading" from its own cardiologist, about which the IHMS organisation may be at least trying to safe-guard itself against possible (future) legal actions by Samuel, and protecting DIBP/ABF from any public criticism. Obstructing the medical transfer for Samuel was the DIBP acting over and beyond the written directive of Secretary Pezzullo where, in PE_003, the stated condition for medical removals have been, "... are compelling medical reasons, supported by second opinions,.... situations involving the risk of life time injury or disability...". The health situation of Samuel obviously involved the risk of permanent injury and disability.

The above is the commonsense understanding of IHMS Personnel on organising the "negative file reading" for Samuel, so as create the objective of DIBP/ABF obstruction become viable.

IHMS CONDUCT ON POINT OF LAW

As had been stated before, the roles of IHMS and DIBP/ABF there at Offshore Processing Centre are "only to facilitate" the medical needs for Samuel, who had been in the immigration custody of the Commonwealth. Samuel otherwise has the right to his own life, and the inalienable right to manage his own health, with the help of his treating doctor. As Samuel is the primary stakeholder of his own health, he actually has the right to manage his health, and making any critical decisions on the treatment plan. Whether decision on getting second doctor's opinion or the review in health situation of any kind, the informed consent must be made by Samuel [See AMA Code of Ethics, #11]. The IHMS organising that "negative file reading" without proper consent and knowledge of Samuel had been arbitrary and illegal. This conduct by IHMS tantamount to (i) over-stepping its role as the health care facilitator of Samuel and (ii) conspiring at Samuel to keep on Manus Island.

(i) Over-stepping of its role as health care facilitator, the IHMS had exercised a power attaching to the right of ownership over Samuel, namely the right to manage. Therefore IHMS has violated slavery law over Samuel.

Therefore, personnel and organisation of IHMS, on its own and in jointly with DIBP/ABF, perpetrated the crimes of slavery on Samuel.

ON TORTURE LAW

Samuel's serious medical needs in accordance with the recommendation of two doctors at PIH were not being attended by IHMS and DIBP/ABF. Samuel, in the stead, had been given some continued medication after being discharged from PIH. One cannot argue that Samuel's medical needs were not serious -- say because he looked quite ok ? -- at the discharge of PIH on February 2017. Whereas in general rule, and as is in law, it is not required that latent health problems blossoming into full fledged crisis before being considered serious [#7]. It only to be noted that the recommended treatment that is in conformity with generally accepted medical practice had not been undertaken by the IHMS.

Therefore, the IHMS, jointly with DIBP/ABF, prevented Samuel from receiving recommended medical treatment; exhibiting deliberate indifference to serious medical needs of Samuel [#8].

The IHMS had persisted in a particular course of treatment, i.e. continued medication, on the risk of permanent injury; exhibiting deliberate indifference to serious medical needs [#8].

Therefore, personnel and organisation of IHMS, on its own and in jointly with DIBP/ABF, perpetrated the crimes of torture on Samuel.

STEPS TOWARDS FAYSAL ISHAK AHMED'S CASE

Friends, the proximity of time between two health incidents of Samuel (Feb-2017) and Faysal (Dec-2016) suggests to us that, on Faysal's case, there will have been similar internal procedure between IHMS and DIBP/ABF. We are now reasonably equipped, so to speak, to look into Faysal's case in more details. -- Cheers, NetIPR.

REFERENCES
[#1] Faysal Ishak Ahmed Page.
http://www.aus4iccwitness.org/node/75
[#2] OFFSHORE DEATHS, DETENTION SLAVERY AND ICC LEGAL CONTEXTS
http://www.aus4iccwitness.org/node/92
[#3] http://www.aus4iccwitness.org/evidence/
[#4] Spicer v. Williamson, 191 N.C. 487, 132 S.E. 291, 44 A.L.R. 1280
https://casetext.com/case/spicer-v-williamson
[#5] S99/2016 FCA 483. The Bromberg Judgment
http://www.aus4iccwitness.org/legal-resources/20160506_bromberg-judgment...
[#6] Estelle v. Gamble, 429 U.S. 97 (1976)
https://casetext.com/case/estelle-v-gamble
[#7] Maldonado v. Terhune, 28 F. Supp. 2d 284, 289 (D.N.J. 1998)
https://casetext.com/case/maldonado-v-terhune
[#8] Leflar v. Algarin, CIVIL ACTION NO. 16-6567 (E.D. Pa. Apr. 19, 2017)
https://casetext.com/case/leflar-v-algarin
[#9] Martinez v. Mancusi, 443 F.2d 921 (2 Cir. 1970)
https://casetext.com/case/martinez-v-mancusi
[#10] Australian Criminal Code Act (1995, Cth)
http://www8.austlii.edu.au/cgi-bin/download.cgi/cgi-bin/download.cgi/dow...
[#11] Australian Medical Association Code of Ethics
he AMA Code of Ethics 2004. Editorially Revised 2006. Revised 2016
https://ama.com.au/position-statement/code-ethics-2004-editorially-revis...