Nov 11, 2010

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.

Tom Cowie

Crikey journalist

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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70 thoughts on “High Court rules in favour of asylum seekers

  1. Jenny Haines

    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

    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. whateverpedia

    [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

    @ 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

    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

    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

    On Remembrance Day the High Court has reminded us.

  8. David

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

  9. davidk

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

  10. shepherdmarilyn

    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.

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