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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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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