Off­shore de­ten­tion.

The gov­ern­ment’s pledge to get chil­dren off Nauru only high­lights that there re­mains no per­ma­nent so­lu­tion for asy­lum seek­ers de­tained off­shore. Mar­tin McKenzie-Murray re­ports.

The Saturday Paper - - Contents | The Week - Mar­tin McKenzie-Murray

In June this year, two days after her sec­ond birth­day, a child was taken to doc­tors in the Nauru camp by her anx­ious par­ents. Her par­ents had fled Iran for Aus­tralia in 2013, be­fore be­ing trans­ferred to Nauru that same year. They were later recog­nised as refugees, and in June 2016 their child was born in the camp.

Now, two years later, their child was fever­ish. In­ter­na­tional Health and Med­i­cal Ser­vices (IHMS) staff pre­scribed parac­eta­mol, but within days the child’s con­di­tion had de­te­ri­o­rated. Now pre­sent­ing with fever, mouth le­sions and de­hy­dra­tion, the doc­tors’ di­ag­no­sis was chill­ing: the child had se­vere sep­sis and her­pes en­cephali­tis – in this case, a lifethreat­en­ing in­flam­ma­tion of the brain likely caused by a vi­ral in­fec­tion. After an at­tempt to fix an in­tra­venous drip failed, the child was trans­ferred to the lo­cal hospi­tal. There, the IV line was fixed, but the tod­dler was de­nied ad­mis­sion be­cause of a bed short­age. She was re­turned to the IHMS clinic, de­spite her dire con­di­tion.

IHMS rang Dr John Field, an emer­gency physi­cian and in­ten­sive care spe­cial­ist in Aus­tralia. He pro­vided a re­port not­ing the child’s his­tory and symp­toms and said, “I am very con­cerned this rep­re­sents se­vere sep­sis which car­ries a high mor­tal­ity” and he rec­om­mended her “ur­gent evac­u­a­tion to a first world ter­tiary hospi­tal”.

The same day, an­other Aus­tralian spe­cial­ist, Dr Shane Ge­orge, pro­vided IHMS with a re­port in­di­cat­ing the child’s “his­tory and clin­i­cal fea­tures of se­vere sep­sis, and con­cerns of a cen­tral ner­vous sys­tem source ... meningo-en­cephali­tis is sus­pected.”

IHMS of­fi­cials re­layed this ur­gent ad­vice to Aus­tralian Border Force

(ABF), who were dis­in­clined to heed it. In­stead, ABF sug­gested med­i­cal trans­fer to Pa­pua New Guinea, to which camp doc­tors re­peat­edly re­it­er­ated the ad­vice of Aus­tralian spe­cial­ists: “IHMS is aligned with this ad­vice and rec­om­mends im­me­di­ate mede­vac to Aus­tralia or a third coun­try with com­pat­i­ble med­i­cal ca­pa­bil­ity that can man­age a pae­di­atric emer­gency with a pae­di­atric ICU,” they wrote. “With­out trans­fer to an ap­pro­pri­ate lo­ca­tion, the child is at risk of fur­ther de­te­ri­o­ra­tion and a fa­tal out­come.”

The Aus­tralian gov­ern­ment ig­nored this. “Thanks for pro­vid­ing ad­di­tional in­for­ma­tion,” an ABF of­fi­cial emailed back. “I note that the de­part­ment con­firmed PNG, please work towards PNG.”

And that’s where the child went.

The ABF au­tho­rised only her mother to ac­com­pany her, forc­ing her fa­ther to stay on Nauru. Of the two par­ents, only the fa­ther had flu­ency in English – a cru­cial point when con­sid­er­ing the mother’s in­com­pre­hen­sion of med­i­cal ad­vice in PNG.

As it is, the doc­tors’ con­cerns were vin­di­cated. The hospi­tal in PNG did not have the ap­pro­pri­ate ma­chin­ery to per­form brain scans on a child. In an emer­gency court hear­ing, the judge found that, “Un­for­tu­nately, the ap­pli­cant is now in the po­si­tion, through no fault of her own, that an MRI has not been per­formed and her treat­ing doc­tors may have greater dif­fi­culty in un­der­stand­ing whether she has suf­fered a brain in­jury and if so to what level, and mon­i­tor­ing and treat­ing her con­di­tion. I am not pre­pared to al­low a fur­ther de­lay of seven days on top of what has al­ready oc­curred.”

The judge ruled the im­me­di­ate trans­fer of the child to Aus­tralia, with her par­ents. In his de­ci­sion, the judge wrote, “It is hard to see how the de­ci­sion to med­i­cally evac­u­ate the ap­pli­cant to PNG rather than to Aus­tralia was mo­ti­vated by health­care con­sid­er­a­tions.”

The Satur­day Pa­per un­der­stands the girl is re­cov­er­ing well. “Since March or April, we’ve brought a num­ber of cases to bring chil­dren and adults to Aus­tralia for med­i­cal treat­ment,” said Jen­nifer Ka­nis, a se­nior as­so­ciate at le­gal firm Mau­rice Black­burn. Ka­nis led the team that rep­re­sented the girl and her fam­ily. “In all but one case, we’ve had to is­sue pro­ceed­ings for the gov­ern­ment to take ac­tion. In a cou­ple, the gov­ern­ment has said on the doorstep of the court that they’d bring our client to Aus­tralia. But in the ma­jor­ity, we’ve needed ur­gent hear­ings, late at night at times, to make the case. In all of the cases we’ve taken to court, the court has ruled in our favour.”

De­spite the gov­ern­ment’s re­cently an­nounced com­mit­ment to re­lo­cate all chil­dren on Nauru to Aus­tralia by year’s end, con­test­ing le­gal in­junc­tions on med­i­cal trans­fers have risen dra­mat­i­cally this year. In re­cent se­nate es­ti­mates hear­ings, it was re­vealed that in the pre­vi­ous fi­nan­cial year, the gov­ern­ment’s le­gal costs for these mat­ters were $275,000. In just the first quar­ter of the cur­rent fi­nan­cial year, they bal­looned to $480,000.

Given the crit­i­cally de­te­ri­o­rated health of so many on Nauru, the gov­ern­ment’s com­mit­ment to get kids off Nauru by year’s end will not pre­vent the need for fur­ther emer­gency med­i­cal trans­fers in the com­ing days or weeks. Nor is the com­mit­ment an ad­e­quate ac­count­ing for its be­hav­iour in the case of this young girl. One of the lawyers on Ka­nis’s team, Nicki Lees, wrote: “The re­al­ity for lawyers work­ing on these cases sits in stark con­trast to the Aus­tralian gov­ern­ment’s com­ments that it is tak­ing in­de­pen­dent ac­tion to get chil­dren off Nauru. The truth is that the vast ma­jor­ity of in­di­vid­u­als trans­ferred for med­i­cal rea­sons to Aus­tralia from Nauru are as a re­sult of le­gal in­ter­ven­tion. The Aus­tralian gov­ern­ment should not try to claim the mo­ral high ground on an is­sue it has re­peat­edly fought against in the courts.”

If there has been a change in Aus­tralian pub­lic sen­ti­ment about off­shore de­ten­tion, and a com­men­su­rate change in the gov­ern­ment’s, it has yielded few pol­icy so­lu­tions. The gov­ern­ment’s com­mit­ment to re­mov­ing chil­dren from Nauru by year’s end has been broadly wel­comed, but the ques­tions it raises are for now mostly with­out an­swers.

The Mi­gra­tion Act ex­plic­itly pro­hibits the set­tle­ment of asy­lum seek­ers ar­riv­ing by boat since 2013, which is the ba­sis for the gov­ern­ment’s in­sis­tence that chil­dren will be re­lo­cated here but never set­tled. The gov­ern­ment has al­ways been clear on this point.

What does it mean to be re­lo­cated, but legally un­set­tled? And how will this in­de­ter­mi­nacy be ex­pe­ri­enced by refugees, and how and when might it be re­solved? On this, the gov­ern­ment is largely mute, be­yond vague as­sur­ances that they are look­ing for so­lu­tions.

There are more ques­tions: Will par­ents be au­to­mat­i­cally re­lo­cated? What about adult sib­lings or grand­par­ents? What hap­pens with the par­ents who have been ad­versely vet­ted on se­cu­rity grounds? What is the like­li­hood of a New Zealand set­tle­ment – one that can sat­isfy the Aus­tralian gov­ern­ment by pre­vent­ing this co­hort from en­joy­ing the ben­e­fits of the Trans-Tas­man Travel Ar­range­ments, de­scribed as a “back­door” en­try? Would a New Zealand set­tle­ment in­cen­tivise a resur­gence of boat ar­rivals, as the gov­ern­ment has sug­gested? And would the New Zealand gov­ern­ment con­sider en­larg­ing its of­fer to set­tle 150 refugees a year? Be­cause, on this num­ber, the re­set­tle­ment of all refugees Aus­tralia has held in off­shore de­ten­tion would take years. What other third-coun­try op­tions are be­ing sought? Fi­nally, what of the men on Manus? A co­hort of sin­gle adult males, they have been largely ig­nored in the sud­den at­ten­tion – and sub­se­quent con­ces­sions – made to those on Nauru. This list is far from ex­haus­tive.

A for­mer se­nior im­mi­gra­tion of­fi­cial sug­gested that, with­out a third coun­try, there are few pol­icy op­tions be­yond bridg­ing visas and com­mu­nity de­ten­tion. They sug­gested the gov­ern­ment is un­likely to speak en­thu­si­as­ti­cally about their com­mit­ment to re­lo­cate chil­dren, for fear of en­cour­ag­ing a re­vival of asy­lum-seek­ing boats and com­pro­mis­ing broad pub­lic sup­port for “strong borders”, if not for the in­def­i­nite semi-de­ten­tion of chil­dren. It was a catch 22.

Jen­nifer Ka­nis was clear about one thing: “My very strong view is that fam­i­lies should not be sep­a­rated,” she says. “These fam­i­lies on Nauru, there needs to be a per­ma­nent so­lu­tion. Most have been found to be refugees. The po­si­tion they’re in has no cer­tainty. This cre­ates fur­ther stress and ill­ness. This mat­ter is one of phys­i­cal in­jury. But we have clients with psy­cho­log­i­cal ill­nesses. Be­ing in de­ten­tion, or hav­ing a high level of un­cer­tainty, is very, very stress­ful.”

In the past month, trans­fers to Aus­tralia have in­creased sig­nif­i­cantly:

135 peo­ple and 47 chil­dren. Al­most two-thirds were trans­ferred after le­gal in­ter­ven­tion, rather than gov­ern­ment ini­tia­tive. Of the 1200-per­son in­take promised by the United States un­der the so-called refugee swap, about a third have been trans­ferred. For those trans­ferred to Aus­tralia, who aren’t hos­pi­talised, the usual pro­ce­dure is place­ment in a de­ten­tion cen­tre, or ser­viced apart­ment with guards, be­fore re­lease to what’s known as com­mu­nity de­ten­tion. Ka­nis says that, re­gard­ing her clients, the usual process is three to six weeks in de­ten­tion be­fore re­lease to the com­mu­nity.

“Ob­vi­ously the Mi­gra­tion Act does pro­hibit their set­tle­ment, that’s how it was or­gan­ised, so you’ll have peo­ple here in a va­ri­ety of tem­po­rary states,” the for­mer im­mi­gra­tion ex­ec­u­tive says. “This means bridg­ing visas and com­mu­nity de­ten­tion. The word ‘de­ten­tion’ is used there, but you have a house, there are some re­port­ing obli­ga­tions, but you can come and go. Dut­ton has been clear when he says they will come here for treat­ment but will not stay … But for peo­ple who are very sick, or have very sick chil­dren, you have to wrap some de­gree of ser­vices around them. With Nauru, they have to have an on­go­ing fa­cil­ity there. If you get boats that are dif­fi­cult to turn back, and you don’t have the de­ter­rence of an off­shore cen­tre, that’s prob­lem­atic. It would be eas­ier to do a deal with Nauru given the bas­tardi­s­a­tion of their le­gal sys­tem, whereas PNG is trick­ier.”

The spot­light in re­cent weeks has been on Nauru, specif­i­cally the chil­dren there. But what of the men on Manus Is­land, whose un­mar­ried sta­tus, the for­mer of­fi­cial says, makes it “harder to get the pub­lic fo­cused”?

Re­gard­less, re­ports came this week of sui­cide at­tempts – and al­le­ga­tions that refugees be­ing treated in Port Moresby hospi­tal were re­turned to Manus Is­land in an­tic­i­pa­tion of the city’s host­ing of the Asia-Pa­cific Eco­nomic Co­op­er­a­tion sum­mit next week. PNG po­lice gave con­tra­dic­tory rea­sons why, with some say­ing it was re­lated to APEC se­cu­rity prepa­ra­tions. Other of­fi­cials said the trans­ferred men had ei­ther com­pleted their treat­ment, or had ab­sconded from the hospi­tal, and that the move was un­re­lated to the sum­mit.

“So ob­vi­ously, the men on Manus re­mains un­re­solved,” the for­mer im­mi­gra­tion ex­ec­u­tive says. “For those peo­ple trans­ferred here, the Aus­tralian gov­ern­ment will now say it’s work­ing through pol­icy op­tions and it has to be a third-coun­try set­tle­ment. New Zealand is still prob­lem­atic be­cause of the spe­cial-pref­er­ence visa. And with the US, there are coun­tries of ori­gin they won’t take.”

Jen­nifer Ka­nis says she wel­comes the de­ci­sion to re­move chil­dren from Nauru but says that for now they will live un­der a painful in­de­ter­mi­nacy – just as they had on Nauru. “We think all peo­ple on Nauru and Manus need a per­ma­nent so­lu­tion. Some­where where they can get on with their lives. The peo­ple cur­rently brought here from Nauru, there’s no op­tion or leg­isla­tive way they can ap­ply for res­i­dency here. They don’t meet any of the re­quire­ments. So, they don’t have a per­ma­nent so­lu­tion with the law as it

• stands. And there needs to be one.”

Chil­dren on Nauru.

MAR­TIN McKENZIEMURRAY is The Satur­day Pa­per’s chief cor­re­spon­dent.

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