This article is more than 1 year old

This article is more than 1 year old

The Australian government is challenging the legality of the federal court hearing applications for urgent medical transfers of refugees and asylum seekers held on Nauru.

The move comes amid a rush of transfers, and appears in contrast to claims made by Australian Border Force to those detainees that the delays are due to the Nauruan government.

Should the federal court action be successful it has the potential to void some previous orders, forcing those cases to refile in the high court.

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The rate of medical transfer orders has ratcheted up as the health crisis worsens, criticism of the policy strengthens, and the Nauruans appear to have stopped attempting to block departures.

The home affairs department raised the jurisdictional challenge in a case involving a child detainee, her mother and two siblings, Fairfax Media reported.

The family have already been transferred to Australia. But lawyers for Peter Dutton’s department have continued to argue that under section 494AB of the Migration Act, the federal court cannot hear legal proceedings against the commonwealth relating to a “transitory person”. It is believed to be the first time the government has made this argument in about 50 cases relating to the transfer of people from Nauru.

On Thursday two federal court judges ordered both parties to submit their arguments in coming days for a yet-to-be scheduled expedited hearing, expected next week. The child, an 11-year-old Iranian girl, is being represented by the law firm Robinson Gill and the Human Rights Law Centre.

“This has come out of the blue, and there’s a risk it could make it much harder for desperately unwell children to get the urgent, lifesaving medical care they need,” said Daniel Webb, director of legal advocacy at the HRLC.

The challenge appears at odds with the government’s messages to detainees laying the blame for transfer delays with Nauruan authorities. Guardian Australia is aware of ABF writing or verbally suggesting to people or their lawyers that the department had approved their medical transfer but Nauru was holding up cases.

One correspondence said the government of Nauru had to approve all transfers through its overseas medical referral committee, which examined medical evidence and recommendations for treatment outside the country.

The letter claimed that it had “become apparent that the government of Nauru will no necessarily act on the recommendations of the OMR committee. Rather it will exercise a residual discretion which is being referred to as ‘uplift approval’. This discretion is being exercised by the Nauruan Secretary of Multicultural affairs personally.”

The secretary is Barina Waqa, daughter of President Baron Waqa. She was also identified as the bureaucrat who blocked the court-ordered transfer of a detainee last month.

The letter said the Australian government had a presence on Nauru in the ABF, and it was through that which the government “can attempt to achieve your clients’ transfers to Australia”.

ABF was there at the pleasure of the Nauruan government, however, which had “made it clear” it was expected to respect the OMR and uplift approval process.

It said the department would take all reasonable steps to arrange a transfer but ultimately this depended on the Nauruan government.

In many cases, doctors have recommended medical transfers for months or even years. The first known case of Nauru officials blocking transfers was in early September, and Guardian Australia understands that the practice appears to have stopped.

Australia’s government has shifted messaging in recent weeks, responding to criticism of its intransigence to calls for a mass evacuation with the claim that it has brought dozens of children off the island for medical care.

While many of the transfers have been through ABF and the OMR process, or in immediately agreeing to a legal application before it gets to the hearing stages, others have required the intervention of a federal court judge.

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“Time and time again we are seeing the government force children at risk of dying to go to court at all hours of the night to get emergency, lifesaving medical care,” Webb said.

“We’re talking about 52 kids who have been detained for over five years. They need an urgent, humane resolution, not more political games.”

A spokeswoman for the Department of Home Affairs told Guardian Australia the department had been “obliged to raise the matter once it became aware of the jurisdictional issue”.

The challenge had not impacted any medical transfer cases, she said, and all would be dealt with in the usual way until the matter was resolved.

The department did not answer questions about ABF’s correspondence.