Legal challenge filed to protect refugee at COVID-19 risk in immigration detention

Joint media release.

A legal challenge against Minister Peter Dutton and the Department of Home Affairs on behalf of a person in immigration detention relating to COVID-19 has been filed in the High Court by the Human Rights Law Centre. 

Lawyers for the man will argue that Minister Dutton and the Government are breaching its duty of care to him by failing to provide conditions that allow him to protect himself from COVID-19. The man has a number of underlying health issues including asthma, a heart condition and diabetes that place him at increased risk of severe illness or death if he contracts COVID-19. The Australian Government medically transferred the man, who is a refugee, from Manus Island to Australia for treatment in early 2019.

There are almost 1,400 women and men who remain in immigration detention. People are often eating in crowded food halls, sharing bathrooms and can be sleeping in rooms with up to six people. Infectious diseases experts have called for people to be released, warning that detention centres risk spreading COVID-19 like cruise ships. 

Human rights legal organisations have said that this is one of many cases that may need to be brought on behalf of people at risk in immigration detention during the pandemic. 

Despite clear medical advice – and unlike other countries such as Great Britain, Belgium, and Spain – the Australian Government has not reduced the numbers in detention. Without urgent action from Minister Dutton, human rights legal organisations are concerned that people will have to rely on court proceedings to ensure their safety. 

David Burke, Legal Director, Human Rights Law Centre:

“Minister Dutton has a legal duty to protect the people in the Government’s care in immigration detention. Instead, he is choosing to hold men and women in crammed detention centres that make it impossible to practice physical distancing. 

“Medical experts have been clear that the people in these detention centres, especially those with underlying health issues, are at severe risk from COVID-19. We are asking Minister Dutton to listen to the medical experts – just like the Government is asking all of us to do – in response to this public health crisis. He can avoid placing lives at risk by simply releasing people into safe housing where they can socially isolate.”

Jane Leibowitz, Public Interest Advocacy Centre’s Asylum Seeker Health Rights Project:

“Leading experts have made it very clear that the current situation is unsafe. We should not need to take these issues to Court to make sure the Government is doing the right thing.” 

David Manne, Executive Director and Principal Solicitor, Refugee Legal:

“We know that vulnerable women and men held in immigration detention are at high risk of infection from COVID-19. The conditions in detention simply do not comply with basic standards for social distancing and self-isolation – they are crowded and cramped and unsafe. The government has a clear-cut duty to protect people from the risk of potentially fatal infection. The Government has the opportunity to heed the expert medical advice by ensuring people are released into safe accommodation. If the Government does not act, there is no option but to resort to the courts to ensure that these women and men receive the same protection that everyone deserves in this pandemic. Protecting these vulnerable people protects us all.”

Sarah Dale, Centre Director and Principal Solicitor, Refugee Advice & Casework Service:

‘Many of the people held in immigration detention are vulnerable and many have underlying health conditions. Whilst medical advice tells us to social distance and isolate, these people remain crammed into detention facilities. We strongly urge Minister Dutton and the Department of Home Affairs to follow critical medical advice and release people from these precarious facilities, into supportive community placements. There are no measures sufficient to ensure detention facilities will be safe. There has never been a more critical time to support the health and well-being of all people in Australia, including people who came here seeking protection.”

George Newhouse the CEO of the National Justice Project and Adjunct Professor of Law at Macquarie University:

“Peter Dutton must take his responsibilities seriously. Covid-19 spreads quickly in enclosed spaces so the Minister must take every opportunity to release all immigration detainees that do not pose a threat to the community – especially those who may be vulnerable to the virus. The Government must listen to experts who have made it clear that the conditions in these centres would allow for the rapid spread of COVID-19 and put lives at risk.”

Grata Fund supports people and communities to hold powerful government and corporate leaders to account and achieve systemic change through the courts. It has provided financial protection against an adverse costs order to allow this case to proceed.

Media contact:

Michelle Bennett, Communications Director, Human Rights Law Centre, 0419 100 519

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