Peter Dutton, the federal immigration minister, has ignored pleas to release a 70-year-old woman from three years of immigration detention, which advocates say shows that the system of discretionary ministerial powers is unjust.

The elderly Iranian, who is the oldest woman in immigration detention, is currently in Darwin’s Wickham Point after she was transferred from Nauru with her two adult children. She has physical and psychological health problems, including “detention fatigue”, according to doctors and her family.

In September last year refugee caseworkers wrote to Dutton, requesting the family be given bridging visas and released into the community. The letter included persecution claims and details of the mother’s medical issues as part of its case for Dutton to use his ministerial discretion.

“The frequency and scope of her health conditions are such that she cannot be properly cared for in detention,” it said.

There has been no response from the minister or his office, which Daniel Webb of the Human Rights Law Centre (HRLC) said highlights the problem with the current powers, which do not compel the minister to decide.

“The minister holds the key. He is the only one with the power to release her,” Webb told Guardian Australia.

“Leaving the basic liberty of so many people in the hands of one politician is an absolute recipe for injustice. Decisions about the basic rights of vulnerable people should be made on the basis of principle, not politics”

The minister’s power of discretion under the federal Migration Act, is non-compellable and not subject to any review, said Webb. It depends on the wishes of the individual minister of the day.

His discretionary action – or a decision to take no action – cannot be appealed through the judiciary.

“This family has been locked up for almost three years. I think about my own life – what I was doing three years ago and all the things that have happened since,” said Webb.

“It’s so incredibly sad and fundamentally unjust that, for every minute of every one of those days, a 70 year-old woman who came here seeking our help has been locked up behind a fence.”

Dutton’s office has been contacted for comment.

The family sought asylum in Australia by boat but arrived on Christmas Island just hours after the Rudd Labor government ruled no one who did so would settle in Australia. They have since spent three years in detention, including some months of separation when the son was “mistakenly” sent to Manus Island on his own.

The son told Guardian Australia he didn’t want his mother to “spend her last days of life behind the fences.”

“My main concern is probably the immigration office or the Australian government has forgotten my mum completely,” he said. “I think now it’s really enough for a 70-year-old lady to be detained in a detention centre for three years. I don’t want to lose my mum in detention centre. I don’t want her to die here.”

They are among the 267 asylum seekers currently in Australia who are facing deportation back to Manus Island and Nauru, including 37 babies born in Australia. Doctors, advocates, and several state or territory leaders have called for the children and their families to allowed to stay in the Australian community.

On Wednesday the Greens introduced a bill to the Senate that would force the government to transfer families with children into the community after a maximum 30 days in detention.



“The Greens want to see a fair and efficient system put in place to process people’s claims for asylum and bring them here safely,” said senator Sarah Hanson-Young.

“This Bill will protect the children in Australia and on Nauru. It’s high time the government stopped locking up children and I appeal to my Senate colleagues to back this essential reform.”

The bill would also require the immediate return of any child held in offshore processing centres.

“There are children in our detention centres who have never known a day of freedom in their lives – kids who have taken their first steps and spoken their first words behind detention centre fences,” Webb said.

“Regardless of whether you are a newborn baby or a 70-year-old woman, our blunt and arbitrary system locks you up until the minister personally decides to let you out. That is a sure recipe for injustice and suffering.”