The Somali refugee, who was about 12 weeks pregnant at the time of the hearing, had been detained on Nauru since 2013 and wanted an abortion because the pregnancy would be harmful to her mental health.

She has type three female genital mutilation (FGM), as classified by the World Health Organisation, and much of the debate in the courtroom was about infibulation, “the practice of excising the clitoris and labia and stitching together the edges of the vulva to prevent sexual intercourse”.

The lawyer representing Dutton and the government acknowledged the woman had “the more extreme form of FGM”, but argued she had been “de-infibulated” (her labia had been unstitched) before giving birth to multiple children previously. So, they argued, “the vaginal outlet [was] adequate for the performing of the operation without any difficulty”.



She should be flown to Taiwan instead of Australia, they said, as the unstitching meant the government didn’t need to offer her specialist FGM care to fulfil their duty of care.

The government pointed to a “brief” medical note from an obstetrician who consulted the woman on Nauru, which said she had “FGM type 3 with signs of de-infibulation”. In a later report to Australian Border Force, a senior doctor from contractor International Health and Medical Services — who had not examined her — wrote that the woman had “de-infibulation”.

The court transcript suggests that the woman’s own evidence was that she had been “surgically partially closed again” following previous births.

Justice Alan Robertson ruled against the government, finding that the woman’s “specific surgical needs” and mental health needs meant she needed to attend a clinic with experience in treating women with FGM and that the Taiwan hospital did not have “suitable expertise and facilities”.

Taiwanese physician Dr Sheng Chiang gave evidence there were no doctors in Taiwan who had ever provided surgical abortions for patients with FGM. The government agreed there was no evidence of relevant experts in Taiwan.

The government also agreed the woman’s “treatment” was urgent. They also admitted the hospital in Taiwan had only given a “qualified” agreement to accept the woman pending examination on arrival and the approval from the Taiwanese Ministry of Health and Welfare.

“It would be an extraordinary thing if the time, trouble, expense, not to mention the risks involved with delay and the risks involved on the psychological aspects of the claim — if the applicant was sent from Nauru to Taiwan only to be told that she cannot be treated there,” the woman’s lawyer told the court.

Obstetrics and gynaecology professor Caroline de Costa, who testified in the case, told BuzzFeed News it would be “highly desirable” and was best practice by Australian standards for a woman who had undergone FGM — even those who had been de-infibulated — to be assessed by a gynaecologist with expertise and experience in dealing with similar patients before operating.

“Where abortion has been requested by women refugees or asylum seekers they should receive the same standard of care and respect available to women with similar issues in Australia,” de Costa said.

De Costa said she advised the court the woman should go to Sydney or Melbourne, where she was eventually flown, for treatment where there were “hospitals with teams very familiar with the management of the condition during pregnancy and in the best practice of abortion procedures in these cases” as well as social workers, interpreters, and health workers from the woman’s own ethnic group.

“This is also obviously in the emotional and psychological interests of the woman concerned,” de Costa said.