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Asylum seeker test cases reach High Court

Four test cases to determine which court should hear allegations about the inadequate healthcare of refugees and asylum seekers will be considered by a High Court appeal.

user iconNaomi Neilson 27 August 2020 Big Law
High Court of Australia
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More than 50 cases relating to allegations the Australian government failed to provide adequate healthcare to refugees and asylum seekers in offshore detention are currently on hold in the Federal Court, pending a High Court appeal challenge on the test cases.

The High Court appeal will determine which court should hear the claims. It follows the failure of the Commonwealth to argue the Migration Act required a High Court trial.  

Social justice law firm Maurice Blackburn and the National Justice Project will be acting for the refugees in the four test cases, beginning early September. They will argue the cases should be heard by the Federal Court and by state courts.

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Maurice Blackburn principal lawyer Jennifer Kanis said the Commonwealth challenge, if successful, would prevent detained people from timely access to justice.

“People seeking asylum – including young children – have already experienced delays in accessing critical and lifesaving healthcare because of the Commonwealth offshore detention policy,” said Ms Kanis, adding they face further delays while the government insists on fighting against legal action on their alleged inadequate medical care.

One of the test cases is centred on a young refugee girl in Nauru who was diagnosed with herpes encephalitis at aged two, a life-threatening neurological condition.

Doctors recommended she be medically evacuated to Australia for urgent tests, which would have included an MRI brain scan. Instead, she was sent to Papua New Guinea for treatment until a court later ordered her urgent transfer to Australia.

Ms Kanis said the Commonwealth’s appeal in the High Court, if upheld, would prevent refugees and asylum seekers from making applications to the Federal Court for care.

“If refugees and asylum seekers are forced to apply for the urgent, lifesaving treatment through the High Court, it would add significant time and cost to the process, potentially [with] disastrous consequences for their health,” said Ms Kanis.

Pending the outcome of the appeal – which is not expected for some time – Ms Kanis called on the Commonwealth to not forget those still in offshore detention centres.

“While we await the outcome of today’s appeal, we urge the Commonwealth to ensure the people who remain in offshore detention have access to proper and timely medical care. In particular, the recent spike in COVID-19 cases in Papua New Guinea’s capital underscores the lifesaving importance of timely access to proper [healthcare],” she said.

Maurice Blackburn predicted the High Court’s decision on this appeal will impact future cases where refugees and asylum seekers who were in offshore detention argue that the Commonwealth failed to provide appropriate medical care.

The decision may also affect claims for people who are still on Nauru and Manus Island seeking to hold the Commonwealth accountable for inadequate medical care.

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