“In an unprecedented move, the Morrison government has questioned the Federal Court's authority to commence cases that allow sick children to be brought to Australia for emergency medical care.”

The Guardian, 26 October 2018:

The Australian government is challenging the legality of the federal court hearing applications for urgent medical transfers of refugees and asylum seekers held on Nauru.

The move comes amid a rush of transfers, and appears in contrast to claims made by Australian Border Force to those detainees that the delays are due to the Nauruan government.

Should the federal court action be successful it has the potential to void some previous orders, forcing those cases to refile in the high court.

The rate of medical transfer orders has ratcheted up as the health crisis worsens, criticism of the policy strengthens, and the Nauruans appear to have stopped attempting to block departures.

The home affairs department raised the jurisdictional challenge in a case involving a child detainee, her mother and two siblings, Fairfax Media reported.

The family have already been transferred to Australia. But lawyers for Peter Dutton’s department have continued to argue that under section 494AB of the Migration Act, the federal court cannot hear legal proceedings against the commonwealth relating to a “transitory person”. It is believed to be the first time the government has made this argument in about 50 cases relating to the transfer of people from Nauru.

On Thursday two federal court judges ordered both parties to submit their arguments in coming days for a yet-to-be scheduled expedited hearing, expected next week. The child, an 11-year-old Iranian girl, is being represented by the law firm Robinson Gill and the Human Rights Law Centre.

“This has come out of the blue, and there’s a risk it could make it much harder for desperately unwell children to get the urgent, lifesaving medical care they need,” said Daniel Webb, director of legal advocacy at the HRLC.

The challenge appears at odds with the government’s messages to detainees laying the blame for transfer delays with Nauruan authorities. Guardian Australia is aware of ABF writing or verbally suggesting to people or their lawyers that the department had approved their medical transfer but Nauru was holding up cases.

The Sydney MorningHerald, 24 October 2018:

The legal point was raised last week in the case of an 11-year-old Iranian girl held on Nauru who had not eaten in more than two weeks.

Medical experts gave evidence she was facing “imminent death” if she was not treated by paediatrics experts in an Australian intensive care ward.

However, lawyers acting for the Home Affairs Department argued that under section 494 AB of the Migration Act the court could not hear the case as it did not have jurisdiction because she was a “transitory person.”