Plaintiff S99: Rewriting Refugee Law Through a Trauma-Informed Lens

Abstract

Plaintiff S99/2016 v. Minister for Immigration and Border Protection [2016] FCA 483 was a decision of the Australian Federal Court concerning a woman (referred to in the decision as “Plaintiff S99”) who had been recognised as a refugee in the Republic of Nauru, having been transferred there by Australia under an offshore processing agreement. The decision in Plaintiff S99 established an important precedent that many refugees and asylum-seekers in Australia’s offshore processing centres on Manus and Nauru, including children with severe health problems, subsequently relied upon to be transferred to Australia for critical medical care. Drawing on the recent turn towards trauma-informed practice across other areas of law and policy, we ask: what does this mean for refugees, and, more specifically, what does this mean for judgment writing in refugee law? We use our rewrite of Plaintiff S99 to highlight aspects of the decision and its legacy that continue to silence and erase the experiences of refugees, especially refugee women, and frequently contribute to compounding their trauma. Our contribution calls for a reorientation towards “do no harm” principles, which lie at the heart of trauma and violence-informed practice. In particular, our approach to rewriting S99 aims at foregrounding dignity and safety, promoting respect for physical and mental health, and centring the voice, experience, and longer-term protection needs of refugees.