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High Court rules in favour of asylum seekers

A High Court ruling that two Sri Lankan asylum seekers were denied “procedural fairness” under the Migration Act will allow offshore arrivals to challenge their decision in Australian courts, says the instructing solicitor behind the case. But a legal expert says that the decision means the two-tier system that differentiates the legal rights of onshore and offshore arrivals will remain in place.

In a unanimous decision handed down by the High Court today, two Tamil asylum-seekers were found to have been denied ”procedural fairness” in a review of their rejected applications for refugee status. The bench found that the government had made an “error of law” in not applying the Migration Act and the decisions of Australian courts to the pair.

The two asylum seekers, known in court only as M61 and M69, have been held in detention for a year, after arriving at Christmas Island in October 2009. In another matter, the court did not uphold a broader challenge to the validity of section 46A of the Migration Act.

David Manne, executive director of the Refugee & Immigration Legal Centre and instructing solicitor behind the case, says that the decision is a win for the “rule of law in this country”.

The High Court has unanimously ruled that these decisions were unfair and unlawful because the government was not applying ordinary Australian laws to decision on these life or death matters,” Manne told Crikey. “We call on the government now to publically confirm that it will respect the court’s decision and give all these people a new decision making process that relies on the unanimous ruling of the court, that its decisions must be made fairly and in compliance with ordinary Australian law.”

Currently, section 46A of the Migration Act states that asylum-seekers who land at ‘excised offshore locations’ have no right to appeal their detention, until the minister for immigration “lifts the bar” and allows them to make a valid visa application. The excised offshore locations include Christmas Island, Ashmore Island and Cocos Island. This is referred to as a two-tier system, where asylum seekers who land offshore have different avenues of legal recourse to those who land onshore.

Manne says that the High Court’s ruling means that the two-tier system is “wrong and unlawful” and that there cannot be a different legal process for asylum seekers depending on where they arrive: “The solution now is to ensure that all asylum seekers are put on equal footing and no one is discriminated against because of where or how they arrive,” he said.

However, an element of confusion has marked the media coverage of the implications of the decision this morning, with the @abcnews twitter feed initially reporting:

@abcnews: The High Court has unanimously ruled that Australia’s offshore refugee processing regime is invalid. More to come

and then issuing this clarfication:

@abcnews: Clarification: High Court ruling refers to asylum seekers’ rights of appeal, does not invalidate offshore processing system itself.

George Williams, a legal expert from the University of NSW, says that the rejection of the broader challenge to the Migration Act means that the High Court still considers the two-tier system valid. But he makes the point that a denial of “procedural fairness” is an important interpretation, because it could allow asylum seekers who arrive offshore to appeal their decision in Australian courts.

It does open up recourse to the courts, at least on that type of matter, but not necessarily to the full range of matters,” Williams told Crikey. ”We’ve still got a two-tiered system, it’s just the tier we thought was outside the system has had some important protections read in to their claims.”

Refugee activists are hailing the ruling as a “very welcome decision”. Pamela Curr, campaign co-ordinator at the Asylum Seeker Resource Centre, says that it is a great win for the rights of asylum seekers:

People’s liberty should not be left to the whim of the politician. This decision does not give the courts the power to award visas, what it does do is make the denial of a person’s liberty a matter for the courts to decide. Which is a basic tenant of our democracy.”

Ian Rintoul from the Refugee Action Coalition, says that the ruling confirms that the federal government’s processing regime is “deeply flawed and unjust”.

“What it has revealed is that the people affected by these decisions have been politically manipulated and perhaps now we can get, at last, a refugee processing arrangement which has access to Australian law and the justice system at least,” Rintoul told Crikey. “We want an undertaking to all those who have been rejected under the regime receive some sort of apology from the government.”

Greg Barns, director of the Australian Lawyers Alliance, says that governments must respect the rights of individuals who have been subjected to actions with adverse consequences:

One of the most fundamental rights is the capacity of individuals to be able to appeal to the courts against such impactful decisions and this decision is an important decision for the democratic fabric of Australia.”

In the mean time, David Manne says that the High Court has left open the possibility of granting an injunction, should the government not allow his clients access to a fair and lawful decision making process.

This decision applies to every asylum seeker in Australia subject to the offshore processing regime,” he said. “It means that not a single one of them should be removed until they have had their claims assessed through a new and lawful process in accordance with the High Court’s ruling.”

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  • 1
    Jenny Haines
    Posted Thursday, 11 November 2010 at 1:55 pm | Permalink

    At last some small measure of justice for refugees and asylum seekers who arrive by boat, delivered by the High Court. Sad that it did not come as the revoking of Howard’s excision of Christmas Island and the commitment to onshore processing by the decision of the Labor Government. How will they react to this decision? Remains to be seen, but from what I have heard on the radio so far I am not too hopeful. Phillip Ruddock was predictably poisonous in his response, but he is just going to have to live with this decision (that’s the nicest way I can put it Phillip!). Thank god he is not in power to undermine it. No doubt the braying and cursing by the ignorant will start, and I am surprised that my screen says that there are no other postings. To the ignorant - maybe there is more than you ever thought or dreamed of in the rule of law and procedural fairness!!

  • 2
    Bela
    Posted Thursday, 11 November 2010 at 2:02 pm | Permalink

    Wow, with this decision, as well as the decision that preventing bikies from associating with each other is unconstitutional (which was also handed down today), it almost feels like Australia still has a progressive heartbeat and that people actually have legal rights.

    If the judges keep this up, we could be forgiven for thinking that John Howard was no longer prime minister. Oh wait…….what’s that…..he’s not? When?

    Next we’ll be having gay marriage, and the Labor party, in government both federally and at state level will have had nothing to do with any of this. They really do have no soul and no purpose whatsoever.

  • 3
    Posted Thursday, 11 November 2010 at 2:10 pm | Permalink

    it almost feels like Australia still has a progressive heartbeat and that people actually have legal rights.

    Unless Abbott gets his way on voting for judges.

  • 4
    guytaur
    Posted Thursday, 11 November 2010 at 2:22 pm | Permalink

    @ Whaterpedia

    That will not happen. That would require a referendum to change the Constitution.
    Another example of Abbot shooting his mouth off.

    On the Hight Court Decision this is fantastic. It may even be the start of the end of those interminable election debates on boat people instead of what our population should be.

  • 5
    Claire O'Connor
    Posted Thursday, 11 November 2010 at 2:22 pm | Permalink

    I am grateful that we have a decision that confirms that fairness applies for applicants who are having their cases determined ‘off shore.’ Now we need to protect those in detention, whether that be on Christmas Island or on mainland Australia from cruel treatment, and ensure that those who are processed as refugees are done so quickly with as little risk to their health and welfare as possible.

  • 6
    Jimmy
    Posted Thursday, 11 November 2010 at 2:27 pm | Permalink

    Politically I would of thought this actually makes Gillards regional detention centre more attractive (I am not making any moral or ethical judgements just politics) as a regional centre would not be subject to the Australian legal system.

  • 7
    Tamo
    Posted Thursday, 11 November 2010 at 2:32 pm | Permalink

    On Remembrance Day the High Court has reminded us.

  • 8
    David
    Posted Thursday, 11 November 2010 at 2:39 pm | Permalink

    All praise to the High Court, indeed a day to remember, lest we forget.

  • 9
    davidk
    Posted Thursday, 11 November 2010 at 2:52 pm | Permalink

    Good on the high Court but I very much doubt this will end the political football status of this issue.

  • 10
    shepherdmarilyn
    Posted Thursday, 11 November 2010 at 2:52 pm | Permalink

    Now to just stop locking people up. There is no point to it and there never has been.

    All decisions made under this law including the non-right of Fatima Erfani’s husband to make a claim, a non-right that killed his wife as surely as if Ruddock had shot her, must be reviewed.

    All the people sent to Nauru after getting to Christmas Island must be allowed to come back here.

    I was terrified the HC would rule against the rule of law like they have twice with mandatory detention without habeas corpus rights, the denial of family reunion that kept families separated for years even if they were all in Australia - lest we ever forget what Ruddock did to the Bakhtiyari family. Keeping them locked up for years even when they were always aware that the dad was in Sydney, then illegally locking the dad up based on demonstrably false papers calling him another name of a person 10 years younger and then forging papers to deport them to the wrong country.

    Under the Migration Act articles 36 and 65 everyone has the right to make a refugee claim, even if they are on Christmas Island.

    For the first time today one of the ABC journos. I have been screaming at telling them it was illegal has responded to my “I told you so”, Fran Kelly conceded I was right.

    When we walk down the facist slope of singling out small groups of people for punishment by ministerial decree we may as well name ourselves the Facist republic of Australia.

    The British High court would never allow the behaviour we have carried on with and even the prisoners at Gitmo have more legal rights than asylum seekers who simply asked for our help.

    It’s kinda like jailing patients because they drove to hospital emergency instead of paying for an ambulance.

  • 11
    Posted Thursday, 11 November 2010 at 3:24 pm | Permalink

    It’s a welcome decision, but the clarifications are important in saying that there is still a long way to go. And even this decision is not guaranteed because Labor will most certainly try to find a way to weasel out of their responsibilities.

  • 12
    galeg
    Posted Thursday, 11 November 2010 at 3:52 pm | Permalink

    Sounds good, but what about the hundreds, if not thousands patiently waiting in overseas camps for consideration of their refugee entry into Australia ?
    With the Immigration Department likely to be tangled up in this decision, those patiently, and legally waiting in offshore camps can expect their wait to be dramtically extended, by processing delays, or Government refugee quotes exceeded.
    Personally I can see the Fed Gov will now have no choice but to speed up locating some other country to off load the refugees into for processing, or quietly turning boats around and pointing them back out to sea (which some already say they are doing).
    We need to remember that the Fed Gov nearly lost the last election, and a major concern raised by the electorate (over 70% in every poll I saw) was that the Gov was not stopping the illegal refugee / boat people entry.

  • 13
    davidk
    Posted Thursday, 11 November 2010 at 4:03 pm | Permalink

    What is it about claiming refugee status is NOT ILLEGAL that people don’t understand?

  • 14
    galeg
    Posted Thursday, 11 November 2010 at 4:23 pm | Permalink

    Davidk, you are correct. It is not illegal to claim refugee status, however some people claiming refugee status must, by international law be declared illegal entrants to Australia when they are sought by their original country as terrorist criminals.
    An example are a number of the SriLankan Tamils who were members of the internationally recognised terrorist organisation known as Tamil Tigers, who have sought refugee status in Australia. If these people (individualk) are sought by the SriLanka Government for terrorist activities, then they must be handed back to that Government.
    What is the alternative ?
    If they stay in Australia, then, as is probably already happening, ASIO has to spend large sums of money monitoring each individuals activities.

  • 15
    GeeWizz
    Posted Thursday, 11 November 2010 at 4:27 pm | Permalink

    What is it about claiming refugee status is NOT ILLEGAL that people don’t understand?

    What is it about entering Australian waters without a valid visa is ILLEGAL that the lefties don’t understand?

    At last some small measure of justice for refugees and asylum seekers who arrive by boat, delivered by the High Court.

    What about justice for the Australian people who wish to protect their borders from economic migrants? Don’t we have a right to decide who comes here and the circumstances in which they come?

    This decision confirms what we already knew. Labor’s boatpeople policy is a rolling joke.

    There is only one solution for this gutless Prime Minister and thats to call our good friends in Nauru who have a ready built detention centre ready to roll at the drop of the hat. Of course she can’t do that because that would mean heaven forbid, Howard was right.

  • 16
    Jimmy
    Posted Thursday, 11 November 2010 at 4:34 pm | Permalink

    Geewiz - channeling little Johnny there are we?

    First off this ruling would have just as big an impact on the Lib’s policy as Labors and secondly people have a legal right to seek asylum, you correctly pointed out that it is illegal to come or stay in a country without a visa if you are not seeking asylum, so maybe we should round up all those white back packers currently living here without visas.

  • 17
    fred
    Posted Thursday, 11 November 2010 at 4:37 pm | Permalink

    Thank you , pro bono lawyers and human rights advocates who successfully and convincingly challenged the Howard Government’s sleight of hand in excising “for immigration pursposes” the northern islands within our maritime border. Nice to have them back.

    It was always inhumane and unlawful to manipulate national borders to deliberately bar the reach of Australian law and procedural fairness to human beings seeking asylum in a UN Refugees Convention country.

    Labor can blame Howard for this one, and apologise to all the victims of this injustice but must now confront the bigger hurdle, that of mandatory indefinite detention of people who have committed no crime.

    Rescind the 1992 Labor policy and law. Release all men women and children in detention who are no threat to public health or national security and let them live and work in the community while their claims for protection are being processed - just as the plane arrivals who lodge a protection claim are now permitted to do.

    What a day to remember!

  • 18
    David
    Posted Thursday, 11 November 2010 at 4:48 pm | Permalink

    @ Geewhiz…I see you have been reading the Rodents little ‘white’ book ..” I am a racist and proud of it”.

  • 19
    Norman Hanscombe
    Posted Thursday, 11 November 2010 at 4:51 pm | Permalink

    Before breaking out the champagne,might it be worth examining how easily a government wishing to correct the problem could do so? Before the usual supscts start frothing at the mouth, this is NOT a comment on whether it was a ‘good’ decision, or suggesting it was unsound in terms of how a Court is entitled to act.

  • 20
    Tamo
    Posted Thursday, 11 November 2010 at 5:31 pm | Permalink

    GEEWIZZ , I take it that you will be totally satisfied if the Government sets up a processing centre in Timor Leste.

  • 21
    Jenny Haines
    Posted Thursday, 11 November 2010 at 5:34 pm | Permalink

    Chris Bowen Doorstop today, 11.11.10:

    CHRIS BOWEN: I thought I’d talk about two things before taking your questions. Firstly, as you are aware, the High Court has today handed down its decision in relation to the processing of refugee claims in Australia.

    It’s important to note what the High Court has not done: the High Court has not found that the excision of certain islands in Australia is unconstitutional; the High Court has not in any way cast judgement on the mandatory detention regime in Australia. The High Court have found that refugee assessments and Independent Merits Reviews are subject to judicial appeal, judicial review in certain circumstances. They would go to procedural fairness and potentially to other legal questions.

    I’ve of course been briefed on this finding this morning; I’ll be receiving further briefings from the Solicitor-General and the Department of Immigration over the course of today. I will be recommending to my Cabinet colleagues an appropriate response in coming weeks. It’s important that we recognise that this is a significant judgement; it has significant ramifications. It needs to be worked through in a methodical and calm manner which is what I’ll be doing in coming weeks and making recommendations to my Cabinet colleagues.

    I’m also today announcing significant reforms to Australia’s General Skilled Migration program. I’m announcing reforms to the skills test, the points test. For too long, a small number of occupations have been able to dominate the skills test, the points test. I’m announcing today that we are abolishing the use of particular occupations for the purpose of that test.

    For too long, we’ve had the situation that a Harvard graduate, in say Environmental Science, with extensive work experience would not qualify for skilled migration to Australia but somebody who nominates a 60-point occupation with a small amount of work experience would. These are significant reforms that I’m announcing today. They continue the work of my predecessor, Senator Evans, in ensuring we have a migration program and particularly, a skilled migration program, which is driven by the needs of Australia’s labour market as opposed to the desire of particular people to migrate to Australia.

  • 22
    Jonathan Maddox
    Posted Thursday, 11 November 2010 at 5:35 pm | Permalink

    A basic TENET of our democracy. Not “tenant”. A tenant is someone who holds a property whilst a tenet is a principle you hold. The origins of the words are the same Latin root but at least in English their use is completely separate.

    I guess this was a subbing mistake because I’m sure neither Tom Cowie nor Pamela Curr would have made it.

  • 23
    Jonathan Maddox
    Posted Thursday, 11 November 2010 at 5:44 pm | Permalink

    And by the way no-one is illegal.

    It is a contravention of Australia’s international treaty obligations for this country to declare those who claim refugee status to be “illegal entrants”, no matter how they arrived, what labels have been slapped on them, or what crimes they are accused of.

    Only if they have no legitimate fear of persecution in their home countries is Australia justified in repatriating them. It is our obligation to confirm this and to give them the benefit of the doubt.

    And unless someone is guilty of a crime or is under grave suspicion of criminal activity, Australia is not justified in imprisoning them.

  • 24
    shepherdmarilyn
    Posted Thursday, 11 November 2010 at 6:09 pm | Permalink

    IT IS NOT ILLEGAL.

    http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1009.html?query=al%20masri
    “60 In any event, while it is literally correct to describe the applicant as an “unlawful” entrant and an “unlawful non-citizen” that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as “unlawful non-citizens” because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention.
    61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called “unlawful non-citizens” in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950’s (which has been enacted into Australian law) to claim refugee status as persons who are “unlawfully” in the country in which the asylum application is made.
    62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory.
    63 Notwithstanding that the applicant is an “unlawful non-citizen” under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a “right” conferred upon him under Australian law.”
    Now those four paragraphs make the law pretty clear and that was upheld by three more judges in the Full Court of the Federal court in April 2003 after Akram had been deported.

    So far so good on the “unlawful” = “illegal” story.

    So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”.

    http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/456.html?query=behrooz
    GUMMOW J: What is the baggage of the word “unlawful”?
    MR BENNETT: Your Honour, none. It is a word used in a definition provision, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence.
    http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/458.html?query=behrooz
    “GUMMOW J: What is the force of the word “unlawful”?
    MR BENNETT: It is merely a word which is used in a definition section, your Honour.
    GLEESON CJ: Does it mean without lawful permission?
    MR BENNETT: Yes, that is perhaps the best way of paraphrasing - - -
    GUMMOW J: But in the Austinian sense that is meaningless, is it not?
    MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the - - -
    GUMMOW J: Well, perhaps they ought to be.”
    Wow, so the word unlawful is legally meaningless.

    So which part don’t you get Gee.

  • 25
    skink
    Posted Thursday, 11 November 2010 at 6:21 pm | Permalink

    it almost feels like Australia still has a progressive heartbeat”

    not out here in the West, where the redneck-rurotard coalition is in power. They are still pushing ahead with their ridiculous stop-and-search powers for police

    if only we had some pro-bono lawyers, human rights activists, or belligerent bikies to look after our civil rights over here

  • 26
    freecountry
    Posted Thursday, 11 November 2010 at 6:34 pm | Permalink

    Here’s a statistic I’d like to know: How many High Court challenges to Commonwealth power has each government of recent years contested? And what does it say about the political culture when a government is so hungry for power that it requires explicit High Court intervention to curtail it? Because for every overreach of power that gets stopped in this way, there are any number of overreaches which are go unchallenged or unsuccessfully challenged. Is that how we want government to be — constantly pushing the envelope of what’s constitutionally legal?

  • 27
    GeeWizz
    Posted Thursday, 11 November 2010 at 6:42 pm | Permalink

    First off this ruling would have just as big an impact on the Lib’s policy as Labors and secondly people have a legal right to seek asylum

    Thats cr4p.

    The Libs policy is to ship the boaties off to Nauru.

    Nauru as you may know is NOT part of Australian territory. Therefore under the High Courts ruling these economic migrants won’t be able to put in endless appeals to Australian courts at the taxpayers expense, as they are outside Australian territory.

    This rule is similar to what happened with the Guantanamo ruling in the U.S which said U.S TERRITORIES are subject to U.S Law.

    Nauru would not be subject to such law, because it is not an Australian territory. Simply having property on said island does not constitute a territory and therefore the boaties would be out on a limb trying to claim legal access from Australia.

    Once again John Howard is shown to be right, and Gillards shown to be a complete Dill.

  • 28
    GeeWizz
    Posted Thursday, 11 November 2010 at 6:47 pm | Permalink

    First off this ruling would have just as big an impact on the Lib’s policy as Labors and secondly people have a legal right to seek asylum, you correctly pointed out that it is illegal to come or stay in a country without a visa if you are not seeking asylum, so maybe we should round up all those white back packers currently living here without visas.

    No no, I think you are having problems reading.

    It is ILLEGAL to enter Australian waters without a valid visa.

    Seeking Asylum has nothing to do with it, thats spin from the left. Under legislation introduced under Hawke/Keating, those entering Australian waters without a valid visa are illegal entrants and unlawful non-citizens. What they claim once they break the law coming into our waters is irrelevent.

    It’s like saying you can legally apply for asylum at one of the hundreds of Australian embassy’s all around the world(which the boaties can of course but choose to jump the queue instead), therefore it’s completely legal to run your truck through the front gates if you feel like it.

    It’s not what they claim when they get here thats illegal, it’s the method of travel.

  • 29
    freecountry
    Posted Thursday, 11 November 2010 at 7:13 pm | Permalink

    Geewiz, if a person enters Australia without a visa, there is no related offence. If a South Sea pirate, an Indonesian drug smuggler, or a spy from some hostile force, crosses into Australia in a boat, the Commonwealth has laws allowing it to take various actions including detain, remove, assess for refugee protection, etc. If evidence of other crimes is found — say if the drug smuggler is silly enough not to dump his contraband overboard — they can be charged with those crimes. But the act of intruding across the Australian border ceased to be a crime in the early 1990s; intrusion now just creates a situation in which the government is authorized to take corrective action. Therein, I have argued elsewhere, lies the root cause of the whole stupid shemozzle that has dominated four federal elections and far too much of our politicians’ time.

  • 30
    David
    Posted Thursday, 11 November 2010 at 7:27 pm | Permalink

    @SKINK…not out here in the West, where the redneck-rurotard coalition is in power. They are still pushing ahead with their ridiculous stop-and-search powers for police

    Agree, I find Barnett an incompetent, liar…twists and turns, changes his story when caught out. I f there was anything like a decent Opposition in the West, getting rid of thisLib/Nat coalition would be a piece of p-ss. Alas until someone has the ticker to tap poor Eric the Terrible on the shoulder, nothing will change. I read that Barnett is considering reinstating the chair sniffing former treasurer to Cabinet. Careful what you wish for Col baby, Troy wants your job.

  • 31
    David
    Posted Thursday, 11 November 2010 at 7:30 pm | Permalink

    geewizz

    No no, I think you are having problems reading.

    It is ILLEGAL to enter Australian waters without a valid visa.

    Be so kind as to provide the link to this policy.

  • 32
    Mr Squid
    Posted Thursday, 11 November 2010 at 7:37 pm | Permalink

    the ABC’s performance on this issue today has simply been laughable. the commentary here has been better and more accurate than anything on Rupert’s ABC. The commentary here also shows how important an accurate and balanced media is to public discourse on such matters of national interest. It is more than a pity that the ABC cannot provide it.

  • 33
    GeeWizz
    Posted Thursday, 11 November 2010 at 8:09 pm | Permalink

    Be so kind as to provide the link to this policy.

    I did that once, and my post was nicely deleted by a moderator.

    I’ll try again:
    http://www.aph.gov.au/house/committee/MIG/detention/report/appendixd.pdf

    Those who enter Australian waters by boat without a visa is deemed to be an illegal entrant and unlawful non-citizen.

    Make of these words what you will, but it certainly backs up claims that boatpeople are “illegal immigrants”. The legislation makes no exemption for those who claim asylum, it simply and quite clearly deems those who enter Australia without a valid visa as unlawful and illegal.

  • 34
    Rena Zurawel
    Posted Thursday, 11 November 2010 at 8:23 pm | Permalink

    I felt like crying, as if it was me and my family affected by the High Court decision. Thanks Gods and our High Court that justice has been done.
    And I am not sure what is more important to me; the recognition of the visa applicant status or the huge relief that innocent victims are not being looked at as savages and criminals.

  • 35
    shepherdmarilyn
    Posted Thursday, 11 November 2010 at 8:36 pm | Permalink

    Gee, it is not illegal. Cannot you read the frigging law.

  • 36
    Norman Hanscombe
    Posted Thursday, 11 November 2010 at 8:52 pm | Permalink

    I’ve no idea what he can or can’t read, marilyn, but it’s time you realised that your being able to read something doesn’t mean you actually understand it, so please stop your sexist attacks on him. Happy Armistice Day to you.

  • 37
    guytaur
    Posted Thursday, 11 November 2010 at 10:42 pm | Permalink

    Now this is out of the way fixing detention centres is needed. I suggest to any Labor people reading this to take to the party the following concept. We keep track of criminals with something we call the parole system. These people are not criminals as far as we know. Therefore a parole system might be the way to go. It is a tried and true method of keeping track of people whom you think may abscond. The main fear as propagated by the Right.
    Of course this is not fair as it still treats legitimate asylum seekers as criminals. However it might just be a fairer way to be more progressive human and compassionate towards people fleeing from tyranny and persecution, while letting Australians know we have not lost control of our borders. This is needed due to the lies of the Coalition that we have lost control of our border.

  • 38
    Moira Smith
    Posted Thursday, 11 November 2010 at 10:44 pm | Permalink

    Scott Morrison, opp immigration spokesman on Lateline tonight … ‘genuine refugees don’t appeal decisions’, ‘people who arrive by plane have documents’ etc. Please defend us from another regime run by people like this! And note, in so many of the comments on this case, it’s an issue of ‘Border Protection’ - not people protection, which is the whole point of the UN laws.

  • 39
    Moira Smith
    Posted Thursday, 11 November 2010 at 10:53 pm | Permalink

    What the United Nations says:
    http://www.unhcr.org.au/basicoblig.shtml

    Australia, New Zealand and Papua New Guinea and other South Pacific states in the region are signatories to many of the international human rights instruments, including the 1951 UN Convention relating to the Status of Refugees.

    The Universal Declaration of Human Rights, adopted in 1948, is a statement of the basic rights and fundamental freedoms owed to all human beings. As a declaration, it does not have binding force, but it is internationally recognised as a cornerstone of human rights protection. Article 14.1 states, “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” This principle is at the root of refugee rights world-wide, and forms the basis of the 1951 UN Convention Relating to the Status of Refugees.’

    No mention of ‘valid visas’, ‘illegal entrants and unlawful non-citizens’. @ Geewizz, your chosen pseudonym is so apt.

  • 40
    Rena Zurawel
    Posted Thursday, 11 November 2010 at 11:13 pm | Permalink

    Is it possible that a so called ’ immigration spokesman’ would have no idea about immigration laws?
    It seems that Scott Morris is reading prompters rather that freely discuss immigration matters.

  • 41
    klewso
    Posted Thursday, 11 November 2010 at 11:41 pm | Permalink

    The eventual ramifications of “law drafted in the haste of populist political expediency”?
    Howard and Reith’s grubby prints all over it?
    Try as he might Scott “Reith-Morrison” can hardly spin this to his party’s advantage, after it’s been the main plank of their election platform - as for his “infallibility of politicians over our courts”?

  • 42
    Norman Hanscombe
    Posted Friday, 12 November 2010 at 12:16 am | Permalink

    Are you absolutely certain, klewso, that the loophole found by the Court was actually something done by the Libs?

  • 43
    TheEvilOne
    Posted Friday, 12 November 2010 at 1:05 am | Permalink

    Before the 2nd World war, some Jewish refugees fleeing Germany by boat were refused permission to land at their destinations, were sent back to Germany and subsequently gassed or shot by the Germans. After the War, excessive shame at having refused asylum to these genuine refugees genuinely in fear of their lives and subsequently genuinely dead lead to the adoption of the completely impractical and unworkable UN Convention on Refugees. Had this convention been in force and adopted by the nations at which thepre war Jews from Germany requested asylum, these nations would not have been able to turn them away.

    I ask both Government and Opposition to tell me in what way does the situation of people arriving at Australian off shore island by boat today those prewar Jewish refugees whose fate prompted the UN convention? The UN refugee convention allows refugees to arrive at the border, the front door of any signatory country and claim asylum. It does not say they must not arrive by boat, it does not say that they must not arrive in numbers that the signatory country finds excessive. The fact is that refugees who come here by boat are not doing anything wrong, Australia’s pretense that they are is hypocritical motivated by Australia’s desire to weasel out of its obligations under the convention. If Australia does not want refugees arriving by boat it should do the honest thing and withdraw from the Refugee Convention.

    One might ask, why do asylum seekers come by boat? The answer of course is that they cannot come by plane as they lack passports, or if they have passports cannot get visas as Australian officials suspect that they are intending to seek asylum. The greatest humbug in this argument over boat people is the pretense that either the refugees or the people smugglers who ferry them are doing something wrong. The constant reference to the boat refugees as un-lawful and the conflation of this term with |”illegal” is attempting to disguise the fact that Australia is unwilling to perform its obligations under the UN refugee convention when genuinely fearful, genuine refugees arrive today by boat at the rate at which they are arriving.

    Julia Gillard, Tony Abbot, stop spouting nonsense and avoiding the real issue. Advocate openly that Australia withdraw from the refugee convention and replace it with our own refugee asylum process that clearly states the hoops and hurdles we expect asylum seekers to jump through and the maximum numbers per year of each ethnicity. For example I would not expect the limit on white farmers fleeing Zimbabwe to be as low as those for more woggy type such as Sri Lankans or Iraquis.

  • 44
    TheEvilOne
    Posted Friday, 12 November 2010 at 1:19 am | Permalink

    Uh Oh.

    Just noticed that I did not finish an edit. The first sentence of my second paragraph in my previous comment should read:-

    I ask both Government and Opposition to tell me in what way does the situation of people arriving at Australian off shore islands by boat today differ from that of those prewar Jewish refugees whose fate prompted the UN convention?

  • 45
    Liz45
    Posted Friday, 12 November 2010 at 1:54 am | Permalink

    @GEE WIZZ - “What is it about entering Australian waters without a valid visa is ILLEGAL that the lefties don’t understand?”

    What is it about all the words, sentences, quoting of Australian Govt Legislation and that of International Law don’t YOU understand? Do me a favour - get on to the website somewhere and download the UNANIMOUS decision of the High Court, and take in every word they said? THEN, come back and talk to us again.

    There’s none so blind as those who refuse to see!

    Let’s not take up room trying to work out the Shadow Minister for Aboriginal Affairs etc. He was the member of Parlt who instigated the Legislation that bought about this challenge to the High Court!

    Gee, they must really hate the idea of any of those employees receiving any adequate care, let alone a Professor!

    @NORMAN - Get off your arse and read the 27 page decision for yourself(go on, it will be a novelty for you - you’ve never based your ‘arguments’ on fact before????
    However, I’ll give you just one small relative fact - what the Opposition was bleating about today, they were the ones who had the power to put it into Legislation - and they did!
    Stop embarrassing yourself by being an abusive and an obscene person, who wanted his partner to go and view pornagraphic images!!!!

    If all fails - and you run out of people to offend and denigrate - take my advice- take the next train and ‘f***o*f - permanently!

  • 46
    Liz45
    Posted Friday, 12 November 2010 at 2:05 am | Permalink

    @NORMAN - According to President Gillard this afternoon, the Legislation that the High Court aimed their attention at and their decision to, was the Legislation put forward by the Howard Govt. They put in place the Legislation - the very one that the High Court rejected as a ‘joke’ or “INVALID” if you like!

    It is ILLEGAL to enter Australian waters without a valid visa.” IT IS NOT

    Would you like me to push this assumption further? Do you not agree? Why not?

    @NORMAN - From this day forward, stop using abusive and sexist language towards women when you mix with them on a regular basis!

  • 47
    klewso
    Posted Friday, 12 November 2010 at 8:25 am | Permalink

    The “revelation” that “Hansonism” proved to be - “xenophobia to Main Street”?
    Then an election to win, a “certain demographic” to cultivate, an aura to conjure, “tough on boat people”, “Tampa”, “Children Overboard”, “exorcisms (of territory)” to perform?

  • 48
    Norman Hanscombe
    Posted Friday, 12 November 2010 at 10:47 am | Permalink

    Liz, how harsh of you dear lady, to make such hurtful attacks. Aren’t you being genderist, because you never object to my equivalent comments where I’ve tried to provide non-rational males the same caring assitance I offer you? Still, it would be most ungracious of me if I didn’t congratulate you on the unusual (but nevertheless most welcome) brevity of your last post; even if it lacks the connotations ‘last post’ would have held yesterday.

    Best wishes with your personal struggles.

  • 49
    David
    Posted Friday, 12 November 2010 at 11:33 am | Permalink

    Norman Hanscombe…you are an abusive snob, get off your high horse, your patronizing and condescending manner oozes arrogance.

  • 50
    Jenny Haines
    Posted Friday, 12 November 2010 at 11:39 am | Permalink

    http://www.smh.com.au/opinion/politics/as-one-judges-show-they-safeguard-liberty-20101111-17pgn.html#poll

    As online polls go this one is not bad. 69% support the High Court’s decision. Nice to know that the mean spirited may be in the minority.

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