Rape victim cries foul
SYDNEY — The Somali refugee who says she was raped and impregnated on Nauru has flatly denied claims by the Minister for Immigration that she changed her mind about ending the pregnancy after being flown to Australia for an abortion.
The rebuttal comes as family planning and legal experts said the Immigration Department had potentially breached its duty of care by allegedly refusing requests from the woman — known by the pseudonym “Abyan” — to see a counsellor or doctor.
That could leave the federal government up to a civil claim for damages on the grounds of negligence.
After a public campaign, Abyan — who was 14 weeks pregnant — was flown to Australia last week to have the abortion but suddenly returned to Nauru on a chartered jet on Friday.
An injunction by her lawyer, George Newhouse, to prevent her deportation failed because Abyan was already out of the country.
In a statement released on Saturday, Minister for Immigration Peter Dutton said Abyan had “decided not to proceed with the termination” and lawyers and advocates making claims to the contrary should be “ashamed of their lies”.
But, in her first comments since her return to Nauru, “Abyan” has said Mr Dutton’s description of events — backed by Prime minister Malcolm Turnbull — were false.
“I have been very sick. I have never said thate (sic) I did not want a termination,” she said in a hand-written statement which was photographed and sent to Mr Newhouse.
“I never saw a doctor. I saw a nurse at a clinic but there was no counselling. I [also] saw a nurse at Villawood but there was no interpreter. I asked but was not allowed to talk with my lawyer.”
Abyan is 23 years old and has been found to be a genuine refugee. Abortion is not readily available on Nauru and Abyan’s health reportedly deteriorated dramatically after the alleged rape.
However an Immigration source said that Abyan did in fact see counsellors and doctors, as well as nurses, when she was in Australia. The source declined to reveal just how Abyan communicated her wish not have an abortion.
Family planning and legal experts said Abyan had the right to see counsellors and doctors.
“Any woman requesting counselling in relation to making a decision about whether to continue or terminate a pregnancy has a right to access appropriately specialised services and this is especially relevant in a situation involving trauma and alleged rape,” said Deborah Bateson, director of Family Planning NSW.
One of Australia’s most prominent healthcare law experts, Julie Hamblin, said, based on the account by Abyan, the Immigration Department may have breached its duty of care.
“If it is the case that she’s fallen pregnant because of sexual assault, there is an obvious risk to her psychological well-being,”she said.
“For a person under the control of the Department of Immigration, the government has a duty of care to provide her with access to the treatment she needs. It does not seem unreasonable for the government to agree to provide counselling as a minimum.”
She said any breach of the duty of care was “potentially actionable”, with the federal government vulnerable to being sued for negligence.
Ms Hamblin also noted that, before an abortion can legally proceed in NSW, a doctor is required to determine that it is necessary to avert a serious risk to the physical or psychological health of the woman.
However, Abyan says she never saw a doctor, only two different nurses — at Sydney’s Villawood detention centre and at an abortion clinic.
They inquired, said Mr Newhouse, when she wanted to have the procedure.
“She said ‘I’ll tell you tomorrow or the next day’, and said she wanted to see a counsellor or doctor. She also wanted to speak to me.”
Mr Dutton said he believed that advocates were using medical treatment as an excuse to enhance the prospects of refugees being resettled and “appear to be using this woman’s circumstance for their own political agenda”.
“The woman was brought to Australia for medical attention, not for a migration outcome,” he said.
Mr Newhouse, who is special counsel at Shine Lawyers, said he had no instructions from Abyan to make any application for a migration outcome.
He said Abyan was deeply distressed after her return to Nauru and was at serious risk of “physical and mental harm”.
Greens senator Sarah Hanson-young called on Mr Turnbull to intervene.
“It is hard to fathom a more brutal way of treating a scared young woman who has been raped and is struggling with the decision to terminate the pregnancy,” she said.
“This poor young woman has been through enough, she is scared and traumatised. It’s time the minister put his own politics aside for a moment and allowed Abyan to make her own decisions about her body and future, free from pressure and bullying.”
Australian immigration Minister Peter Dutton