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The Federal Court on August 10 ordered the federal government to release a 68-year old detainee from the Melbourne Immigration Transit Accomodation (MITA) in Broadmeadows, after it determined he had a high risk of contracting COVID-19.

The landmark decision was the first time that a court has addressed the Commonwealth government’s duty of care towards people imprisoned in immigration detention during the COVID-19 pandemic.

Justice Bernard Murphy made an interim order to Home Affairs Minister Peter Dutton to free the man, who has multiple health issues and needs protection against the risk of infection.

Dutton, who has sole discretion on where the man will be moved, was advised to let the man’s lawyers know 24 hours before moving him.

Dutton was given until August 13 to transfer the man to alternative accommodation.

But late on August 11, the Department of Home Affairs advised the man’s lawyers that they planned to transfer him to Yongah Hill detention centre in Perth the next day.

He was to be taken on a commercial flight, having obtained approval from the Western Australian government.

On August 12, after an urgent hearing, Murphy extended the orders. At the time of writing, the man was still in MITA.

The court had agreed that the man’s detention at MITA meant that he was exposed to unsafe levels of risk of contracting COVID-19. It based its ruling on the testimonies of leading infectious disease experts in Victoria, who warned that group detention is dangerous for the health of those who are at higher risk of contracting COVID-19. Any precautions that have been taken are not enough to guarantee the safety of the detainees, it ruled.

Sanmati Verma, the lawyer representing the man, said on August 12: “It defies the spirit of the court orders that this vulnerable and elderly man be subjected to further risks involved in transferring him to another detention centre.

“There are self-evident dangers involved in transit and also in creating a cluster of transferees in Yongah Hill from the eastern states.”

Human rights organisations have called on Dutton to immediately comply with the court’s decision and not breach his duty of care.

Dr Carolyn Graydon from the Asylum Seeker Resource Centre (ASRC) said: “This is a cynical move by the department which should immediately release this man from closed detention into the community so that he can return to his family without delay and practice preventative measures, like all Victorians in lockdown.

Prior to his abrupt detention late last year, the man had lived for nearly a decade with his son and grandchildren. His family is anxiously awaiting his return home.

Lawyers for the man have asked the court to urgently intervene to prevent the government flying him to Yongah Hill. The government argued the transfer should proceed because to cancel the flight would involve costs and inconvenience to the government.

The court refused to allow the transfer and will hear arguments and evidence from both sides on August 19 or 20.

Detainees cannot take self-protective measures while they remain in cramped detention centres.

Verma said that the court’s decision “makes it clear the Commonwealth is unable to ensure the safety of vulnerable people”.

“There is a clear solution to the situation, which has been implemented in the United States, United Kingdom and Europe, but not in Australia — which is to release vulnerable people into the community where they can be safe.” 

Medical experts have long feared an outbreak of COVID-19 in immigration detention. These facilities are creating unacceptable health risks for those detained, the staff and the wider community.

But, Dutton has ignored the experts’ call to reduce the number of people held in detention.

Instead, he is determined to make it harder for detainees and their supporters.

On August 13, the ASRC was informed by people in Yongah Hill detention centre that they had been asked to undergo medical checks, likely in preparation for transfer to North West Point Immigration Detention Centre on Christmas Island.

Graydon condemned the plan to “reshuffle people detained across states and re-open Christmas Island” describing it as “highly risky” and gambling with the lives of detainees, staff and ultimately the whole community.

“The clear answer to managing COVID-19 risks in overcrowded detention centres is to release people into the community so they can take self-protective measures, like everyone else in Victoria and other states...

“More than half of those detained are refugees, or people seeking asylum with no criminal background at all, and who present no risk to the community,” she said.

She pointed out that the department’s “risky interstate transfers” that mix groups of people across the country is also “contrary to state travel restrictions”.

“There is no need to re-open Christmas Island and with it another chapter of isolated, health harming, punishing detention,” Graydon said.