A High Court challenge to the detention of two Tamil asylum-seekers is an attempt to try and bring legal equity to boat people processed offshore, says the instructing solicitor behind the case.

The challenge, heard by the full High Court bench earlier this week, could affect how future asylum seekers are processed offshore. Two Sri Lankan asylum-seekers have instigated the proceedings, which will determine if their year-long detention has been legitimate.

But David Manne, executive director of the Refugee & Immigration Legal Centre, says the case is also about trying to ensure all asylum-seekers are seen as equal in the eyes of the law, regardless of whether they landed offshore or on the mainland.

“The government are saying that refugees who arrive offshore are subject to a different process than those who arrive on the mainland,” Manne told Crikey. “All our clients are saying is that they should be afforded due legal process, which includes the access to the ordinary scrutiny of a court of what they believe are unlawful and unfair decisions.”

Manne says the processing of refugee claims is the justification of ongoing detention and it “must be inexorably connected with Australian law and due legal process”.

Section 46A of the Migration Act was amended in 2001 to ensure 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.

According to The Australian, the Commonwealth argued to the High Court that until the minister lifts the bar any decision made by immigration officers during the offshore assessment process has “no statutory or other legal effect”. Manne says the policy is flawed and the minister’s powers could be considered invalid and unconstitutional.

“The minister has no duty to consider claims by a person under this process for refugee protection,” said Manne. “A law can’t create an island of power in which the executive can operate unconstrained by the law and by the courts.”

Manne says his clients have experienced a “fundamental denial of natural justice” during their period of detention, which included a lack of communication of crucial information from decision makers. Manne also told Crikey that some of the core claims from his clients were not even considered or looked at.

“The government maintains that even if it was a denial of natural justice is that it has no legal consequence,” said Manne. “These are the types of errors that could lead to someone being deported to danger or death without basic safeguards, such as access to ordinary judicial scrutiny.”

Peter Fray

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