A Federal Court judge has described Home Affairs Minister Peter Dutton’s handling of some medevac refugee cases as disturbing and potentially unlawful, while his department says plans are in place to fly some detainees back to Nauru and Papua New Guinea.
A government solicitor on Wednesday told the court a charter flight is set to return up to six refugees to Nauru within a fortnight, after cases were brought against the federal government by refugees who said they had not received the medical treatment for which they were brought to Australia.
The latest hearing comes as more than 20 refugees in Darwin and Brisbane were released on temporary bridging visas after up to a year in Australian hotels or immigration detention.
On Wednesday, the court heard several refugees who have asked to be returned to PNG and Nauru – from where lawyers say they would resume efforts for third-country resettlement – have been waiting for up to nine months.
Justice Geoffrey Flick questioned Mr Dutton’s handling of the refugees’ requests to be removed from Australia, saying the appeals seemed to “fall into a black hole” until court action was brought against the Commonwealth.
“What is disturbing me is a picture seems to be emerging that [the minister] is not taking any steps at all to give effect to a request made by someone in detention for removal until this court intervenes,” Justice Flick said.
“I’d hate to think that they just fall into a limbo until this court is asked to make an order. If that’s the case, this minister is placing himself above the law.”
Justice Flick said while he would hesitate to make a formal legal finding along those lines, “it seems to be emerging as a pattern”.
Justice Flick issued orders for Mr Dutton to provide evidence of all medical treatment provided for the refugees and all steps taken to process requests for them to be removed from Australia.
Judge says government should consider possible compensation
Government solicitor Peter Macliver told the court a flight to Papua New Guinea was also being organised subject to information from the PNG government.
Justice Flick said there appeared to be little progress in organising a flight for another refugee who first sought to be returned to Papua New Guinea in June last year.
“It shouldn’t take the court to impress upon Mr Dutton the importance of complying with his statutory obligations,” he said.
Justice Flick also said the government should consider compensating the refugees for their time in detention, if evidence shows no steps were taken to provide the required medical treatment.
“[The government’s] written submissions come tantalisingly close to saying ‘oops, we may have been detaining people without authority for a while but we’re now getting onto it’.
“If it were to be concluded, and on this I have no firm view at present, that these people have been detained without proper authority and for significant periods of time, I could only urge upon the minister to consider whether an ex gratia payment should be made to these applicants.”
Mr Dutton’s office has been contacted for comment.