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

Future of kids on Nauru still unknown

Children on Nauru.
Credit: World Vision Australia

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 life-threatening 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.”

This article was first published in the print edition of The Saturday Paper on Nov 10, 2018 as "Next stop unknown". Subscribe here.

Martin McKenzie-Murray
is The Saturday Paper’s chief correspondent.