Human Rights and Migration Law

AYX18 v Minister of Home Affairs[2018] FCA 283

A recent decision by Justice Perram in the Federal Court demonstrates how independent decision making by judges protects human rights and enforces international human rights agreements. This migration case involves immigration detention in Nauru and concerns fundamental human rights, under the rule of law, such as the right to life and the right to health.  It is an urgent interlocutory application .This application, by a mother on behalf of her son,  requesting the Federal court to order the Home Affairs Minister bring the child from Nauru to Australia for urgent specialist medical treatment.

Facts

In 2013 – the son and his mother arrived from Iran on board a boat somewhere in Australian waters, they were taken to Christmas Island. Both were unauthorised maritime arrivals within the meaning of s 5AA of the Migration Act 1958 (Cth) They were sent to a regional processing centre in Nauru and granted temporary settlement visa to live in Nauru. The Nauruan government found them to be refugees under the Refugee Convention . The father joined them and they lived in a house in the Nauruan community. The father suffered a brain injury after falling during a bicycle accident and was removed to Australia for medical treatment, where he remains in Immigration Detention in Brisbane.

In late 2013 and early 2014 – the then 6 year old boy’s mental health deteriorated and he threatened to self-harm. The boy developed a painful medical condition in his genitals which was not able to adequately treated by the hospital in Nauru. At the time of the hearing on the 6th of March 2018 this condition remained untreated.

In July 2017 a Doctor recommended that the boy be transferred to Australia for surgery. This recommendation was rejected by the Minister for Home Affairs. He considered that there was adequate medical treatment available on Nauru. By January 2018 the boy’s  mental health further deteriorated and he attempted to commit suicide three times.

In February 2018 he was assessed by two psychiatrists and they both recommended immediate removal to Australia for medical treatment to preserve his life and treat his physical and mental health, as the facilities available on Nauru were not suitable for a child with his complex needs. The Minister disagreed.

His Honour Justice Perram stated:

The Minister resisted these propositions but the evidence was very clear. [23]

Consideration

To determine whether to grant this urgent interlocutory application the judge had to  decide whether the ‘injury’ that would occur if the application by the boy’s mother was refused was greater than the damage that the Minister for Home Affairs would suffer if it was granted.

In this case, the potential ‘injury’ for the boy involved the possible loss of life and lack of access to appropriate medical care. The potential damage to the Minister was the monetary cost of removing the boy to Australia and the cost of his medical treatment along with the political cost of allowing a refugee who has been in an offshore regional processing centre to receive medical care in Australia.

Justice Perram found as follows:

…the evidence suggests an arguable case that the boy and his mother are dependent on the Commonwealth either directly or indirectly for their survival and sustenance…  it is arguable also that if the Minister wishes to be engaged in the medical treatment of persons such as the boy, it should do so competently.[26]

I regard the risk of the boy’s death as being a most powerful and compelling consideration.[29]

Decision

His Honour granted ‘injunctive relief’ and made the following statement:

…I note the next plane out of Nauru is on Wednesday 7 March 2018. To be quite clear, the boy and his mother should be on that plane.[31] 

Update

The lawyers for the boy and his mother have informed the media, as of the 22nd of March 2018 that the boy is now receiving medical treatment in Australia.