A Federal Court judge has questioned whether the Australian government is prioritising relations with Nauru over the necessary medical evacuation to Australia of a refugee at risk of self-harm.
Lawyers for the refugee, in his early thirties and who has been on Nauru for almost six years, sought to have the man transferred to Australia for urgent medical attention under the recent medevac laws.
Two doctors who assessed the man determined he was at risk of suicide with his deteriorating mental health condition.
"I cannot see that [the refugee] has a future if he remains on Nauru," judge Debra Sue Mortimer said in her judgment.
"Indefinite detention and other linked psychosocial circumstances are clearly powerful predisposing, precipitating and perpetuating factors in his severe illness and he cannot recover while he remains in this situation."
On June 14, the court ordered the man be moved to Australia for medical and psychiatric treatment, which the court said was “not available to him on Nauru”.
But lawyers for the federal government argued while it was happy to comply with the order, it needed the approval of Nauru’s Overseas Medical Referral Committee to proceed with the transfer.
Federal government has responsibility, judge finds
The Federal Court judge said that while on the one hand responsibility for the transfer lay with the Nauruan government, it also lay with the federal government.
The judge said the federal government had "formed a view that they need to defer to the Government of Nauru by not engaging in any conduct which they apprehend might lead to criticism or complaint from the Government of Nauru, or which might cause the transfer of the applicant to be further impeded."
It also had "chosen to give preference to an approach which places the Commonwealth’s relationship with Nauru ahead of the steps both the first respondent … and this Court (on 14 June 2019) have determined to be necessary to undertake for the applicant’s health and welfare."
The court also said although the man’s refugee visa allowed him to leave and re-enter Nauru, there was a "real possibility" that the Nauruan government would take other steps to prevent the transfer until it has itself decided to allow the move.
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"Where the Nauruan Government controls the airport, the airline and the airspace, and has the attitude the evidence discloses, it would be futile to make mandatory orders against the respondents about specific steps."
The court has ordered the government to provide affidavit evidence if it does not comply with the directive to medically evacuate the refugee to Australia by July 12. The evidence must address why the transfer hasn’t taken place, as well as naming individuals who are responsible for the failure of the transfer.
