Challenge seen as test case for other asylum seekers living in close confines and comes as medical experts urge reduction in numbers held in detention

This article is more than 4 months old

This article is more than 4 months old

A chronically ill refugee held in immigration detention in Australia – and at serious risk of contracting Covid-19 – has launched a case in the high court seeking his release into the community to protect him from infection.

His challenge, lodged in Melbourne late Tuesday by the Human Rights Law Centre, is being seen as a test case for other women and men living in close confines in immigration detention and at risk of a Covid-19 outbreak. Guardian Australia understands his case is likely to be “the first of many”.

Infectious diseases experts, peak medical bodies, and the Australian Human Rights Commissioner have separately called for the numbers of people held in detention to be urgently reduced, with some warning detention centres risk spreading Covid-19 like cruise ships, and pose a risk to the broader community.

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The government’s own Department of Health identifies people held in detention as among those “most at risk” of contracting Covid-19, and those with chronic illnesses at highest risk of serious illness if they are infected.

The refugee who has launched the high court action arrived in Australia seeking asylum in 2013, and was sent to Manus Island. His well-founded fear of persecution was recognised and he is legally owed protection.

He was brought from Papua New Guinea to Australia for medical treatment in early 2019, and has been detained ever since.

The man, who is middle-aged, has multiple and complex medical conditions – including diabetes, asthma and high blood pressure – that doctors argue put him at greater risk of serious illness or death if he is infected by the coronavirus.

He is challenging his detention on the grounds that the Australian government is breaching its duty of care to him by failing to establish conditions that allow him to comply with public health guidelines to practice social distancing and protect himself from Covid-19.

Nearly 1,400 women and men are currently held in immigration detention centres in Australia, or “alternative places of detention”, usually hotels commandeered by the Department of Home Affairs.

People in detention eat in crowded food halls, share bathrooms and communal spaces and are sleeping in rooms with up to six people.

They are also exposed to a wider circle of people by guards and other staff who come in and out of the centres daily.

Protests are being held daily at places of detention.

Stefan Armbruster (@StefArmbruster) Peaceful #refugees protest (#Day17) in Brisbane #APOD at Kangaroo Point detention centre over #COVID19 infection fears. Video supplied (18.04.20) #auspol #qldpol #coronavirus #Manus #Nauru | @SBSNews pic.twitter.com/P63tHRUvbI

The case has been lodged in the high court because the man’s detention falls under the Migration Act, but the court may choose to have the case transferred to the federal court for adjudication.

Guardian Australia understands there are several further legal challenges being prepared on similar grounds. The man’s case may act as a test for others currently held in detention.

David Burke, the legal director at the Human Rights Law Centre, said home affairs minister Peter Dutton had a legal duty to protect the people in the government’s care in immigration detention.

“Instead, he is choosing to hold men and women in crammed detention centres that make it impossible to practice physical distancing.”

Burke said medical experts had been consistent that people held in detention, especially those with underlying health issues, were at severe risk from Covid-19.

“We are asking minister Dutton to listen to the medical experts – just like the government is asking all of us to do – in response to this public health crisis. He can avoid placing lives at risk by simply releasing people into safe housing where they can socially isolate.”

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Lawyers will argue that putting detainees into solitary confinement is an inappropriate solution and inhumane. Many of those in detention have histories of torture and trauma and solitary confinement would be damaging to their mental health.

Many held in immigration detention have families living in the Australian community. Supporters, friends and advocates have offered to house others.

Other countries, including the UK, Belgium, and Spain, have significantly reduced the number of people held in immigration detention out of concerns over potential Covid-19 outbreaks.

Fears have previously been raised about a Covid-19 outbreak in detention after a guard at a Brisbane hotel being used to hold detainees tested positive for the illness.

A spokesman for the Department of Home Affairs said there were no confirmed cases of Covid-19 within the detained populations of the broader detention network. He said Australian Border Force was focused on the health and safety of detainees and staff.

“If clinically indicated, detainees will be isolated and tested in line with advice from the Department of Health and the broader commonwealth response,” he said.

“A range of measures have been introduced to keep detainees and staff informed of preventive measures and plans have been established to manage any suspected cases of Covid-19.”