By Kate Ogg

 The Federal Court has rejected the Australian government’s claim that it did not have jurisdiction to hear and determine cases in which refugees and people seeking asylum on Manus and Nauru are seeking transfer on medical grounds.

 Since 2016, refugee and asylum seekers in Australia's offshore processing centres on Nauru and Papua New Guinea have brought claims in the Federal Court of Australia seeking transfer for medical care. Most of the refugee and asylum seeker litigants have pleaded that the Minister for Home Affairs owes them a common law duty of care and would be in breach if he does not transfer them to a place where they can access appropriate medical treatment. Some of these cases have been successful and more than 50 are ongoing. In many of the ongoing cases, the Federal Court has made an interlocutory order requiring that the asylum seeker or refugee be brought to Australia while the case continues. 

 In 2018, the Minister for Home Affairs applied to have many of the ongoing cases set aside on the grounds that the Federal Court does not have jurisdiction to hear them. The Minister relied on section 494AB of the Migration Act 1958 (Cth) which states that certain court proceedings against the Commonwealth cannot be instituted. If the Federal Court determined that it did not have the power to entertain these cases, asylum seeker and refugee litigants would have to start their legal proceedings in the High Court of Australia.

The Federal Court heard these arguments in May 2019 with respect to four cases and handed down its judgment on 28 August 2019. In all four cases, the refugee litigants were children and had already been brought to Australia from one of Australia's offshore processing centres. 

The Court made a different ruling in each case, but the Court's reasoning allows asylum seekers and refugees pleading that the Minister owes them a duty of care and seeking a transfer to obtain medical care to bring or continue their case in the Federal Court of Australia. However, in two of the cases, the refugee litigants specifically sought an order from the Court that the Minister for Home Affairs cannot remove them from Australia. The Federal Court ruled that these proceedings were barred by section 494AB of the Migration Act 1958 (Cth). The Court did not indicate whether the refugee and asylum seeker litigants who sought this relief could continue with their proceeding in the Federal Court of Australia if they amended their pleadings. Asylum seeker and refugee litigants wanting to make this claim may still be able to do so in the High Court of Australia. 

In summary, this decision is a half victory for asylum seekers and refugees in offshore processing centres. They are not barred from instituting Federal Court proceedings based on common law duty of care, requesting transfer for the purpose of medical treatment and damages. However, the Federal Court cannot hear their claim if they also are seeking an order that they cannot be removed from Australia. 

The cases are included in the Kaldor Centre's database of medical transfer proceedings, where you can find links to judgments and other relevant documents.

Kate Ogg is a Senior Lecturer at the Australian National University College of Law and a Visiting Scholar with the Kaldor Centre.