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 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.”