The family of a five-year-old Iranian girl is suing the federal immigration minister and the commonwealth of Australia for negligence which it alleges led to her post-traumatic stress disorder and severe mental illnesses.On Tuesday the Northern Territory supreme court also heard the asylum seeker family – which has been detained in Darwin detention centres since late 2014 – will be taken out of detention and placed in the community in Brisbane.
A statement of claim and affidavit were filed last week and served on the immigration and border protection minister, Peter Dutton, and the commonwealth, and the family will seek financial damages as well as an injunction preventing its return to Nauru, the family’s lawyer, John Lawrence, told the court.
However, the lawyer for the minister and commonwealth challenged the jurisdiction of the supreme court to rule on the injunction.
The family arrived on Christmas Island in September 2013 – where it is alleged the young girl was exposed to sexualised behaviour – before being moved to Nauru for a year. The family came to Darwin in late 2014 for the father to receive medical treatment and was held at Blaydin detention centre and then moved to Wickham Point.
Recent medical reports about the girl, seen by Guardian Australia, detailed severe psychiatric symptoms including self-harm, bed-wetting, and extreme anxiety triggered by thoughts or reminders of Nauru. Other documents say the girl displayed sexualised behaviour while on Nauru.
Three separate psychiatric reports stated categorically the girl should not be returned to the island.
A review by the former integrity commissioner, Philip Moss, earlier this year found there was evidence that sexual assaults had taken place at the Nauru detention centre.
Lawrence told the court he intended to present evidence of negligence, including the Forgotten Children report, the Moss review, and ongoing evidence to the Senate select committee inquiry into the Nauru centre. Evidence from former Save the Children employees, witnesses from Nauru, and those who had directly observed the experience and conditions the girl was exposed to in detention could also be called, Lawrence said.
“We will also be alleging through the evidence that those circumstances were in the knowledge of both defendants,” he told the court.
Lawrence had also filed an application for an injunction to stop the family being returned to Nauru while the lawsuit is pending, but in the past week the immigration department decided to transfer the family to community detention in Brisbane. Guardian Australia was told the department has agreed to give at least three days’ warning of any transfer.
A return to Nauru was “currently not the intention of the minister”, said the lawyer for the immigration minister and the commonwealth, Tom Anderson.
“At this point in time there doesn’t seem to be a need for an injunction. There certainly isn’t a need for an interim injunction.”
Anderson told the court the Migration Act prevented the NT supreme court from ruling on the injunction as “any decision under the Migration Act is a migration decision” and the matter would have to go to the federal court, high court or federal circuit court.
Anderson also said a recently inserted section of the Migration Act “removes jurisdiction from any court effectively, a matter such as this affecting what’s described as a transitory person”.
The immigration minister and commonwealth were not challenging that the negligence claim could be heard in the supreme court, Anderson said, but it could also be heard with the injunction claim.
Lawrence maintained the supreme court could rule on the injunction as part of the negligence claim which “isn’t a novelty”, but conceded the application could be “snookered” by the Migration Act.
Regardless of the decision on jurisdiction, “we will pursue this suit of negligence”, he said.
Lawrence told Guardian Australia outside of court that he had informed his clients of their move to Brisbane on Sunday “which brought a clear sense of relief, including to the girl”.
“They were greatly relieved to hear they were moving out of detention but the father is still anxious about his daughter’s mental illness. We advised them they’d be in a better position to receive treatment [in Brisbane],” he said.
The case was adjourned until August when the court will determine the jurisdiction of the injunction application. Should no settlement be made on the negligence suit it would then proceed to trial at a later date.