Medical care in asylum seeker detention

AS v Minister for Immigration and Border Protection [2014] VSC 593, although an interlocutory matter, foreshadows an interesting claim in tort alleging injuries due to lack of provision of reasonable heath care whilst in detention under the Migration Act 1958 (Cth).

The named plaintiff AS is a minor who was detained on Christmas Island and later in the Northern Territory. However the claim extends to a number of persons similarly detained and alleged to have suffered injuries for want of reasonable health care.

AS and the group members pleaded that they were unable to access medical and health services, or educational and recreation facilities, other than those provided by the defendants and thus they were dependent on the defendants for their physical and psychological health and wellbeing. It was pleaded that it was reasonably foreseeable to each defendant that persons in detention in those conditions, could suffer injury or exacerbation of injury: [7]

The interlocutory application by the defendant sought to have certain parts of the statement of claim struck out. Areas of agreement emerged during argument. Some (apparently limited) parts of the statement of claim were struck out.

The defendants accepted that the Commonwealth (named as second defendant) owed a non-delegable duty to provide reasonable health care to detainees and conceded that it was arguable that the Minister also owed a non-delegable duty : [24].

The court was satisfied that the matter could continue as a group proceeding.