Exclusive: Case of mother and 17-year-old to be transferred on Friday is at least ninth legal win for medical intervention

An Iranian refugee and her 17-year-old son, both acutely physically and mentally ill on Nauru, will be brought to Australia after winning a federal court order to be moved to high-level medical care. It is at least the ninth legal challenge won for medical intervention from Australia’s offshore processing regime.

The woman – whom the court has ordered be referred to as BAF18 – and her son (BAG18) are set to be flown to Australia on Friday, after a court heard from doctors that BAF18’s heart condition and mental health issues could not be treated on Nauru, and that her son was at acute risk of suicide if left on the island.

Justice Mordecai Bromberg, sitting in the federal court in Melbourne on Wednesday, ordered that both be removed from Nauru “within 48 hours” and provided the specialist physical and mental healthcare their treating doctors have been recommending. He further ordered BAF18 and her son must not be separated, nor returned to Nauru.

Guardian Australia has documented BAF18’s case in a series of articles since January – by which time doctors had been campaigning for 18 months for her transfer on the grounds that she needed life-saving heart surgery that could not be performed on Nauru, as well as needing specialist mental healthcare.

Each time Australia delays bringing a sick child from Nauru, the stakes get higher | Ben Doherty Read more

Her son had been severely mentally ill for more than a year, and doctors had raised consistent concerns about his risk of suicide.

On Nauru in February, BAF18 was told that in order to be taken to Taiwan for heart surgery, she needed to leave her young son unaccompanied on the island. She refused, arguing her son was vulnerable and could not be left alone. After her situation was reported publicly, the Australian Border Force relented and allowed her to travel to Taiwan with her son.

They were held on Taiwan for two months, before being forcibly returned to Nauru despite recommendation from doctors at the Taiwan Adventist hospital that neither be returned to the island.

A medical assessment completed on Nauru on 1 July, and delivered to the Australian Border Force, has highlighted BAF18’s worsening condition and that of her son.

“Both BAF18 and her son have continued to express high levels of distress,” it says. “BAF18 describes increasingly frequent suicidal thoughts for herself and, recently, increased congruency with her son’s expressed suicidal intention, specially that they should both die together as this will be the only way to achieve peace.”

BAF18’s son is acutely mentally unwell and suffering psychosis, including imagining people and hearing voices. He “is isolated, rarely eats and does not go to school”, and regularly discusses how he and his mother ‘should ‘die together’”.

The report finds BAF18 exhibits symptoms of persistent depression, “pervasive and overwhelmingly hopelessness … pessimistic thoughts and suicidal ideation”.

“She is unable to identify anything that gives her pleasure or hope.

“The combined effects of a trauma history, physical illness and other stressors … have resulted in BAF18 reaching a state of psychological, physical and emotional exhaustion. Her suicide risk is likely to increase over time to ‘high and imminent’ if she and her son cannot be provided with permanent settlement in a safe, predictable environment that offers hope for the future and medical and specialist mental health treatment for them both.”

BAF18 fled Iran in 2013 following a violent family breakdown that forced her to abandon her job and possessions, and leave the country with her son, then aged 11.

They have lived in a tent inside the Australian regional processing centre for almost all of their five years on Nauru. Since returning from Taiwan, they have been held in the respite area of the processing centre “partly due to the need to monitor [BAF18’s] health condition and partly due to concerns for her son’s mental health and high level of suicidal ideation”.

Both BAF18 and her son have been recognised as refugees – they have a well-founded fear of persecution. Australia is legally obliged to protect them and owes them a legal duty of care.

The deteriorating physical and mental health of refugees and asylum seekers on Nauru – especially children – has become the focus of repeated legal challenges in the federal court in Australia. The majority of cases have concerned children who have repeatedly attempted suicide, including a 10-year-old boy who tried to kill himself three times, and a 14-year-old girl who attempted to set herself on fire.

At least nine cases have been brought before the federal court over the past seven months, including at least four in the past fortnight. Every one has been won by the asylum seeker or refugee – resulting in an order from a judge – or conceded by the government before the hearing has begun. At least 14 people, including family members, have been moved to Australia as a result.