A new class action has been launched against the department of immigration and its minister, Peter Dutton, alleging unlawful detention of asylum seekers, including a four-year-old born in Darwin.
It’s expected thousands could join the case, lodged on Thursday in the federal court, seeking damages for unlawful detention resulting from a failure of the department to act on complaints cases.
The four-year-old boy, who is the lead plaintiff in the case by the Maurice Blackburn law firm, was born to his asylum seeker parents at Royal Darwin hospital in September 2013, and spent 480 days in detention.
His lawyers said when the department eventually “put their mind” to the case, it took just two days to approve and issue a bridging visa, in January 2015, demonstrating the alleged unnecessary and unlawful lengthy detention.
“For the bulk of the time he was in detention, our claim is there was no proper purpose for him to be in detention,” said lawyer Jennifer Kanis.
The statement of claim cited a October 2014 letter from the department to Maurice Blackburn stating it was “currently not reasonably practicable” to take the family to a regional processing centre on Nauru or Manus.
“He and his family were never going to be removed to Nauru because the policy was that children would not be removed to Nauru,” said Kanis. “The family was effectively detained for no purpose.”
Kanis said there were no security concerns about the family, and their refugee claims – which remain unprocessed – had not been rejected.
“We know how important the first couple of years of a child’s life are and for a child to be in detention, for their family to be in detention, must have a detrimental impact on the health and wellbeing of the child,” she said. “That to me is unnecessarily cruel.”
The case is open to immigration detainees who were in detention for more than two days in an Australian facility, provided they were not detained for a cancelled visa, did not return voluntarily or involuntarily to their country of origin, were an unauthorised maritime arrival, or had at any time been subject to an adverse security assessment.
The plaintiffs will ask the court to rule their detention was unlawful, and to award damages for deprivation of liberty.
There have been several lawsuits against the immigration department relating to the detention of asylum seekers but few have been successful.
In June the federal government and offshore contractors agreed to pay $70m in compensation, plus legal costs, to nearly 2,000 refugees and asylum seekers over their illegal detention and treatment on Manus Island.
The payment was part of a settlement agreement, and involved no admission of liability for the government, which said it made assessments about litigation on a case by case basis.
The settlement prevented a six-month trial on a case which had already involved 200 witness statements, 200,000 documents, and more than 50 court dates.
That same month the government also settled out of court with the family of a five-year-old Iranian girl for “negligence” in her treatment while detained on Nauru.
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