Court orders cessation of detention of elderly man on COVID-19 concerns


Yesterday, the Federal Court of Australia ordered the Minister for Home Affairs to cease detaining an elderly man suffering multiple health conditions from Melbourne Immigration Transit Accommodation (MITA), citing the serious risk of infection from COVID-19 in the centre.

The Human Rights Law Centre (HRLC) and Asylum Seeker Resource Centre issued a joint statement welcoming the move. It is the first significant court decision addressing the Commonwealth’s duty of care to people in Australia’s immigration detention network at high risk of COVID-19.

Justice Murphy heard an urgent interlocutory application on behalf of the 68-year-old man last week.

The HRLC stated that, despite some precautionary measures being taken, infectious diseases experts have warned that it is near impossible to guard against COVID-19 entering a detention centre, and once it does, it will spread quickly.

“In crowded detention environments it is simply impossible for people to practice social distancing,” said Josephine Langbien, a Senior Lawyer at the HRLC.

“Security contractors and other staff are coming and going from the centres every day, and risk bringing the virus with them,” she continued.

“We are working with clients in detention who tell us they are unable to take basic measures to protect themselves and they are terrified of contracting COVID-19.”

Prior to his detention in late 2019, the man had lived in the Australian community for nearly a decade with his Australian citizen son and grandchildren.

HRLC reported that the sole reason for the man’s detention was an adverse ‘security assessment,’ made on the basis of allegations relating to his former overseas business, and dating back nearly 15 years. An independent review of the assessment recommended that it be reconsidered by ASIO at the earliest opportunity.

Sanmati Verma, Senior Lawyer at Clothier Anderson Immigration Lawyers, is representing the man and said: “The Court’s decision makes it clear the Commonwealth is unable to ensure the safety of vulnerable people such as our client in detention.”

There are over 1,400 people detained across Australia, sharing bedrooms, bathrooms and common areas. More than 100 of those people are held in hotels used as makeshift detention centres.

Langbien said the number of people in immigration detention has increased since the start of the pandemic.

“This is the complete opposite of what organisations like the Australasian Society for Infectious Diseases and the Australasian College for Infection Prevention and Control recommend,” she said.

Many people in immigration detention have existing health conditions that make them more susceptible to serious illness or death if they contract COVID-19. This includes people who were brought to Australia from offshore detention specifically because they needed medical care.

“There are people in detention with respiratory conditions, heart conditions and compromised immune systems, and people who are elderly, who are extremely vulnerable to this virus,” said Langbien.

“But we also know that COVID-19 can have devastating impacts even for people who are in good health, which is why everyone should be able to take steps to keep themselves safe during this health crisis.”

Yesterday’s decision may therefore have implications for other detainees in immigration detention.

“In making this decision, the Court has recognised what medical experts have been saying for months – that crowded detention environments are putting people’s lives at risk,” said Langbien.

“It shouldn’t be necessary to go to court to force the Government to address this risk. The Government is responsible for the health and safety of the people it chooses to detain. We hope that this decision will mean the Government follows the medical advice and acts now to reduce the number of people held in detention, as we have seen other governments around the world do in response to this pandemic.”


Sarah Jacob

Sarah Jacob is a journalist and editor and is currently The Advocate's Deputy Editor. She has written for a range of print and online publications across Australia and internationally with a focus on the environment and human rights. Previously she worked in conservation science and protected area management, and has completed postgraduate degrees in journalism and marine science.

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