Australian man launches legal challenge to India travel ban, as number of vulnerable citizens rises

<span>Photograph: James D Morgan/Getty Images</span>
Photograph: James D Morgan/Getty Images

The federal court will hear an urgent legal challenge to Australia’s India travel ban, after a 73-year-old Australian in Bangalore launched a challenge.

On Wednesday Gary Newman filed the case against health minister Greg Hunt’s determination that people who have been in India in the past 14 days cannot return to Australia.

The extraordinary measure, which carries penalties of fines up to $66,600 and imprisonment for up to five years, has prompted a fierce backlash among experts questioning its legality and those concerned Australia is treating India differently to other high-risk countries.

Related: Stranded Australian cricketers to flee Covid crisis in India via Maldives or Sri Lanka

At a federal court hearing on Wednesday justice Stephen Burley agreed to expedite the case, with a date to be set in the next two days for a hearing in the next week.

The travel ban is scheduled to automatically expire on 15 May, although prime minister Scott Morrison and immigration minister Alex Hawke have suggested it could be revoked earlier once arrangements are in place to begin repatriation flights for 9,000 Australians stranded in India.

On Wednesday the Australian high commissioner to India, Barry O’Farrell, revealed the number of Australians in India classified as vulnerable has increased from 600 to 900.

At the hearing, Newman’s lawyer, Christopher Ward, said he is a 73-year-old “currently resident in Bangalore” who “wishes to return to Australia” but is prevented by Hunt’s determination.

In a statement Newman’s solicitors, Marque Lawyers, said he had been in India since early March 2020 but “does not wish to make any comment or deal with the media”.

The application, seen by Guardian Australia, argues that Hunt failed to ensure the ban was “no more restrictive or intrusive than is required” – a key safeguard in the Biosecurity Act – because he failed to consider alternatives.

It cited the advice provided by chief medical officer, Paul Kelly, which it said did not include alternatives nor advise on the appropriateness of the penalty.

The second ground of challenge is that Australians have a “common law right of citizens to re-enter their country of citizenship”. Those two grounds will be considered at the urgent hearing.

The case also argues the ban is not “reasonably proportionate” and that it infringes an implied constitutional right of citizens to enter Australia.

Ward said those latter two grounds will “require more substantial evidence and preparation”, suggesting they could be heard after the ban expires.

Earlier on Wednesday Hunt told reporters in Melbourne that declined to comment on the federal court case, but said he believed he had acted according to “absolute caution and proper processes”.

On Monday, Hunt said the government was of the “strong, clear, absolute belief” the India travel ban was legal.

Legal experts including Cheryl Saunders and Anne Twomey have argued the travel ban could be vulnerable to challenge for not meeting the safeguards in the Biosecurity Act.

Related: Australia’s India travel ban: does the health justification stack up and is the move legal?

Twomey told Guardian Australia a constitutional case would have to clear two hurdles: first, establishing that citizens have an implied right to enter Australia; and secondly, whether that right was absolute or could be qualified to protect public health.

Marque Lawyers managing principal, Michael Bradley, told ABC News a constitutional right of citizens to enter Australia would be “not unlimited” and would be “subject to wider public interest”.

On Wednesday, Hawke met with members of the Indian community in an attempt to assure them that the government was doing all that it could to assist.

Abbas Alvi, the president of the Indian Crescent Society of Australia, attended the meeting and told Hawke he had lost five family members as a result of the Covid crisis.

In a letter shared with Hawke and also sent to prime minister Scott Morrison, Alvi said there needed to be an immediate repatriation of stranded Australians back home.

“The need to act is now, or it will be too little, too late for stranded Australians. The worry and grief for those stranded and their families are constant, and we need to bring closure to it by bringing all of them home.”

The meeting comes ahead of a meeting of the national security committee of cabinet on Thursday which is due to consider the travel ban and how quickly the government can resume repatriation flights.