Australian immigration officials were worried about more asylum seekers joining a high court legal challenge and called for the return of as many people to Manus Island and Nauru “as soon as possible”, an internal email reveals.

The email, which was obtained by the Human Rights Law Centre (HRLC) under freedom of information laws, can be revealed on the eve of a high court hearing about the constitutionality of the federal government’s funding of regional detention centres.

The HRLC is bringing a series of challenges on behalf of more than 200 people who have been brought to Australia from Nauru and Manus – often for medical treatment or to have a baby – and are now facing return to the regional centres.

The document the HRLC obtained under FOI is believed to be from the file of a man from Syria who was brought to Australia from Manus for urgent medical treatment.

The 30 June 2015 email, written by an officer in the removals injunctions section of the legal division of the immigration and border protection portfolio, noted that there were “now 57 transitory persons affected by this litigation”.

It said parliament had passed a bill the previous week “which everyone seems to think will put beyond doubt that the commonwealth has a legislative basis to fund its activities in Nauru and Manus”.

“The amendment will not ‘solve’ the litigation, as there are other issues in it. The amendment merely makes our position stronger in some areas,” the email said.

“At this stage it is envisaged that the high court will hear two of the cases in October 2015. We would expect that judgment will be reserved. So, at a guess, we might expect a judgment around December 2015 (but it could easily be as early as November or as late as February/March 2016). This is likely to cause problems with being able to return transitory persons, as more and more plaintiffs join the litigation. It is therefore important to return as many transitory persons as well [sic] can, as soon as possible.”



The email appears to refer to the prospect of returning people to Nauru or Manus before they also join the legal action.

The HRLC’s director of legal advocacy, Daniel Webb, said these were people whom the government had identified as having suffered serious harm in offshore detention and needing urgent treatment in Australia.

“These are incredibly vulnerable people, not pawns on a chess board to be manoeuvred for tactical advantage,” Webb told Guardian Australia. “Decisions affecting them should be made based on their health, wellbeing and safety, nothing else.”

Comment was being sought from the immigration minister, Peter Dutton.

The case to be heard in the high court in Canberra on Wednesday and Thursday relates to a woman from Bangladesh who was brought from Nauru to Australia due to health issues during the late stages of pregnancy, and is now facing return to the island with her 10-month-old baby.

The court will consider whether the government has the power to take people present in Australia to another country “so as to subject them to extra-judicial, extra-territorial detention which is funded, caused and effectively controlled by the commonwealth”, according to the plaintiff’s submission to the court.

Pamela Curr, a refugee rights advocate from the Asylum Seeker Resource Centre, said the people held in Melbourne, Brisbane and Darwin were vulnerable and it would “be a tragedy” if the high court challenge failed.



Curr said the email showed the government would “do anything” to stop people from seeking legal advice.

“They are moved around to fulfil policy wishes with no concern to their state of health, their state of mind, or the consequences of sending them back to Nauru,” she said.

The Nauruan government announced on Monday that it would process all remaining refugee claims – about 600 in total – within the next week and would also allow asylum seekers to move freely about the island 24 hours a day.

Dutton welcomed the moves, but played down any link to the forthcoming high court case.

“It’s worked progressively to the announcement today, so it’s not just an announcement 48 hours, as you say, before a court case,” he told the ABC’s Lateline program on Monday.

“And the other point that I’d make is that there are high court cases going on all the time between advocates and the federal government, between advocates and other parties and these matters continue to roll through the courts.”

Dutton said the Labor party had supported the quick passage of retrospective regional processing legislation in June because both parties “thought it prudent” to do so. “Well there are legislative aspects and there are constitutional aspects and the high court will deal with those aspects as they see fit.”