The High Court decision announced yesterday throws serious doubt over the potential validity of offshore processing in Nauru and Manus Island, refugee experts have said.

The court’s decision yesterday, placing a permanent injunction preventing the deportation of two asylum seekers to Malaysia, has left the Gillard Government’s Malaysian Solution in tatters but what does it mean for the future of offshore processing in general? Immigration Minister Chris Bowen has referred to the “new test” that was applied to this decision, so what is it and how will it impact on our future asylum seeker policy?

John Gibson, barrister and president of the Refugee Council of Australia, told Crikey the decision poses a threat to offshore processing generally.

“It is not by any means sure that if any challenge was made to the Nauru and Manus Island declarations that it would necessarily meet the [High Court] test,” Mr Gibson said.

Referring to the Opposition spokesman Scott Morrison’s public comments after the release of the decision, Mr Gibson said:

“Morrison said deceitfully that the High Court had approved a Nauru declaration,” he said. “It did no such thing.”

Mr Gibson said the decision emphasised the requirements for a declaration under s.198A of the Migration Act, which include protection of human rights and protections from refoulement, would all have to be met by any offshore processing facility.

Section 198A(3) provides that when making a declaration for a country to complete offshore processing, the Minister may:

(a)  declare in writing that a specified country:

(i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)  provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)  provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)  meets relevant human rights standards in providing that protection.

The decision reaffirmed the importance of the Refugee Convention, Mr Gibson said.

“The High Court… has effectively confirmed that the Refugee Convention is essential to managing how people come to this country, and these standards have to be met, and the nature of the obligations entered into by third parties [nations] are going to be crucial,” he said.

The decision clearly stated that the declaration by the Minister that Malaysia provides asylum seekers access to ”effective procedures” for processing their asylum claims, ”protection” for persons seeking asylum and that it ”meets relevant human rights standards in providing that protection” was not valid under s198A unless the country concerned is legally bound by international law or its own domestic law to provide the access and protections set out in that provision.

Papua New Guinea is a signatory to the Refugee Convention, while Nauru also entered into the international treaty in June.

However, The Sydney Morning Herald journalist Philip Coorey has reported this morning government legal advisers’ beliefs that the full consequences of the decision are to “disqualify” Manus Island and Nauru as valid locations for processing.

The paper reported that the legal advice apparently indicates Papua New Guinea fails to comply with seven aspects of the convention. Uncertainty remains over Nauru, as Australia effectively completes the offshore processing for it.

Leading refugee barrister Julian Burnside QC told Crikey the decision made other offshore processing options more difficult.

“I don’t think [the government] will be able to legislate around it. The Greens won’t provide much help,” Mr Burnside said.

“There needs to be [legislative] changes [for the Nauru and Manus Island offshore processing to occur validly],” he said. “Nauru has no domestic legislation dealing with refugees, let alone legislation dealing with the way they are to be treated.”

Immigration Minister Chris Bowen has left open the option of processing asylum seekers in Nauru, and the re-introduction of temporary protection visas, The Age’s Michelle Grattan reported this morning.

Peter Fray

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Peter Fray
Editor-in-chief of Crikey