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    Legal eagles amongst boatpeople

High Court demands process fairness for boat refugees

After nine years, Australia's highest court deals politicians one between the eyes

On 2010 Armistice Day, the eleventh of the eleventh at 9:45am, the full bench of the High Court, in its usual legalese, identifying the Australian State as the "third defendant", declared that

"in recommending to the second defendant that the plaintiff was not a person to whom Australia has protection obligations, the third defendant made an error of law, in that the third defendant did not treat the provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding, and, further, failed to observe the requirements of procedural fairness." (source)

It was a significant reprimand of Australian politicians by the highest court in the land - but before we jump for joy, it's imperative to remember that the proof is in the pudding, and the pudding is prepared in the kitchen of those same politicians.

The High Court may well declare a justice principle, but any changes to injust policies need to be implemented by the political elites in Australia. The Labor government under Prime Minister Julia Gillard, with Chris Bowen at the helm of the Immigration Department, is likely to first underplay, then minimise the required change of its 'refugee processing' of asylum seekers who arrive by boat. This web page indeed shows the beginnings of a classic underplay of the implications of the High Court judgment.

What's on this page

This page brings together opinion and reports of the High Court challenge. Below a summary of the court case, we start with published opinion pieces by a number of reporters and human rights advocates, and following these, reportage from around the country is reproduced. Quick links to the items have been provided.

The High Court Challenge to offshore processing

Refugee & Immigration Legal Centre (RILC)
Case Summary
5 November 2010

The High Court will deliver judgment next Thursday, 11 November, 2010, at 2pm in the landmark cases brought by asylum seekers challenging the Government's offshore processing regime for asylum seekers.


A number of clients of the Refugee & Immigration Legal Centre (RILC) recently brought proceedings in the High Court's original jurisdiction challenging refusals under the Government's offshore prcessing regime for asylum seekers (known as the Refugee Status Assessment (RSA) and Independent Merits Review (IMR) processes).

The full bench of the High Court of Australia heard these matters in Canberra on Tuesday 24 and Wednesday 25 August, 2010.

Cases M61 and M69

These cases - "M61/2010E v The Commonwealth & Ors" and "M69 of 2010 v The Commonwealth & Ors" - raise fundamental questions about the application of the law to the Government's offshore processing regime. M69 also represents a Constitutional challenge to the validity of aspects of the scheme. (Solicitors on the record in M61 are Allens Arthur Robinson, with Counsel Debbie Mortimer SC, Richard Niall, and Kathleen Foley. Solicitors on the record in M69 are Holding Redlich, and Counsel are Stephen McLeish SC, Lisa De Ferrari, and Perry Herzfeld. All undertook the work pro bono.)

The Commonwealth contends the process and decisions under the RSA and IMR are entirely without legal effect, are unconstrained by law, and that, even if otherwise sound, our clients' complaints about their decisions being infected by denials of procedural fairness and other legal errors, are incapable of attracting any remedy in the Court.

In M61, the Plaintiff's central contention is that decisions made under the RSA and IMR 'do' have a legal content and effect, and are susceptible to review by a Court.

In M69, the Plaintiffs also contend that the scheme set up by section 46A is invalid and unconstitutional.

In each of the cases, these clients are challenging the lawfulness of individual decisions made under the RSA and IMR, and seeking remedies accordingly.

Court Case transcript:

HCA. (2010). Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia. High Court of Australia: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ (11 November 2010). Located at

Quick links:

Click the links below to jump down to the articles and items on this page with the same title.

David Marr: Detention system hinges on High Court's decision on boat people

The Age
David Marr
November 11, 2010

Even before wreaths are laid on the cenotaphs of the nation this morning, the High Court may send to the grave Australia's treatment of boat people since the arrival of the Tampa. Sweating on the outcome are two Tamils who took their troubles to the court. Both were refused refugee protection early this year. Both are sitting in Villawood facing forced removal to Sri Lanka.

Canberra is sweating too. A decision in favour of the men could halt dozens of deportations and change the fate of thousands of boat people held in camps across Australia. The "excision" system that ships them all through Christmas Island would become redundant. The court might put in doubt every negative finding of the so called "non statutory" Refugee Status Assessment system that has decided the fate of every boat person for a decade.

It's big. Few decisions of the court have been so anxiously and eagerly awaited. All will be clear this morning, but when lawyers gathered in August to argue the case in Canberra, judges on the bench indicated they were ready to make a big call: that boat people cannot be detained and processed outside the law.

Had the two Tamils known as M61 and M69 flown to Australia on a tourist visa and then asked for refugee protection, they would have been released into the community and assessed by the Refugee Review Tribunal with the courts keeping an eye on officials to make sure all was properly done.

But because M61 and M69 arrived at Christmas Island, their fate was entirely in the hands of the Minister for Immigration. That's the theory anyway: they landed in territory "excised" from the Immigration Act so no court can have a say in their processing. A "non statutory" Refugee Status Assessment was compiled for each by outside contractors, but ultimately whether the two Tamils stayed or went was at the absolute discretion of the minister.

The claim that these contractors "do not need to be regulated by decisions of this court is," observed the High Court judge William Gummow, "a rather remarkable state of affairs." What's more, M61 and M69 were detained while being assessed. This was the ordinary fate of all boat people processed in Australia but how, asked the judges, can a "non-statutory" process immune from court scrutiny authorise detention? Gummow again: "People are incarcerated under this system and transported around the country."

In late March, M61 and M69 were among 89 asylum seekers flown to Villawood in a blaze of publicity as Christmas Island reached bursting point. The prime minister, Kevin Rudd, told the nation: "They are currently being processed for return back home."

Rudd was jumping the gun. But both men were eventually denied refugee status because the contractors employed to conduct the "non statutory" Refugee Status Assessment considered the account the men gave of their predicament back home did not square with the official "country information" they had about Sri Lanka. But the two men were never quizzed about this fatal discrepancy; never given a chance to explain themselves. Instead they were rejected. Had they arrived in Australia by air, such a failure of natural justice could have been corrected by the courts. M61 and M69 set out to convince the High Court that the same right to turn to the judicial system is available to boat people.

"This is a fundamental challenge to the government's ability to design a system where life and death matters can't be reviewed by an Australian court," says David Manne, executive director of Melbourne's Refugee and Immigration Legal Centre.

For M61, Manne gathered an old team: the barrister Debbie Mortimer, SC, instructed by one of the biggest of the big Sydney law firms, Allens Arthur Robinson. M69 had the Melbourne silk Stephen McLeish instructed by Holding Redlich. All the lawyers worked pro bono.

Mortimer attacked the government's position from two directions, both ending in the conclusion that the system for dealing with boat-people asylum seekers has to be open to supervision by the courts.

She argued first that in reality their fate is decided not by the minister exercising some unfettered discretion but by the contractors who carry out Refugee Status Assessments. Theirs is the only path to a visa. A favourable assessment has an automatically favourable outcome. It is not a preliminary step, Mortimer argues. "It is the actual grant of a visa."

Second, boat people can't be detained by a minister merely exercising his discretion. Detention has to have a lawful purpose: "Interference with the common law right of liberty has to be by force of law."

The justices of the High Court appeared to receive her argument very favourably. But of course it's always possible that they may have second thoughts in the privacy of their chambers as they write their judgments. Manne hopes not: "That might see the court opening up islands of power in this country where life and death decisions can be made unconstrained by law."

Michael Gordon: History takes high ground

The Age
Michael Gordon
November 12, 2010

As Debbie Mortimer awaited one of the biggest decisions of her career, she contemplated the worst. ''We could go down in history as the ones that lost this case,'' she told fellow barrister Richard Niall yesterday.

The barristers knew the stakes. They had one shot at challenging Australia's offshore processing system and there were only two possible outcomes - the High Court would entrench the system or deliver a potentially fatal blow to it.

Over 15 years of representing people seeking asylum, Mortimer and Niall and the rest of the team had had some uplifting victories and crushing defeats, but this case was different. This was a test case with implications for thousands of people from war-torn countries.

''It was an opportunity, if we were right, to bring a whole group of people who had been shut out of the legal system into the legal system - and it's not often in your career that you get to do something like that,'' Mortimer told The Age yesterday.

The victory, when it came, could not have been more emphatic: all seven judges agreed in a single judgment that the government was wrong to deny asylum seekers who tried to come to Australia by boat access to our legal system.

The opposition painted it as confirmation of Labor's policy failure. The truth of it is that the Coalition introduced the notion that you can deter boat arrivals by giving those who come by this method lesser rights than those who come by plane.

This was always morally repugnant. The High Court has now deemed it legally repugnant.

Deterrent was the defining feature of the Pacific Solution and it was retained when Labor shut down Nauru and scrapped temporary protection visas, but decided in 2008 to continue offshore processing on Christmas Island and establish a ''non-legal'', two-stage processing regime.

It was of less consequence when the overwhelming majority of boat arrivals were found to have had well-founded fears of persecution and were afforded refugee status, but the dynamics changed this year when the number of boat arrivals - and the political temperature - increased dramatically.

The catalyst for the court challenge was the transfer in March of 89 men from Christmas Island to the Villawood detention centre in Sydney after they failed their initial ''refugee status assessment''.

Both the then prime minister, Kevin Rudd, and the then immigration minister, Chris Evans, pre-empted their appeals by declaring they were on a ''removal pathway''. If the men failed the ''independent merits review'' they faced deportation within days.

It was then that David Manne, executive director of the Refugee and Immigration Legal Centre, approached law firm Allens Arthur Robinson and barristers Mortimer, Niall and Kathleen Foley were engaged. Manne's emphatic view is that the government was determined to counter opposition claims that it was weak on border protection. ''They seemed to want deportation scalps,'' he says.

''The comments from the government gave us a profound concern about whether people were receiving a fair and impartial process or whether there was political interference.''

In the case there were some fascinating revelations, including that the guidelines to determine whether people were sent back were only ever marked ''draft'' and the firm contracted to perform merit reviews was named Wizard People Pty Ltd.

The opposition cites the decision as vindication of its plan to process all those who seek to come by boat on Nauru, with no recourse to Australian courts or Labor's ''non-legal'' - and now discredited - alternative. This is not the answer.

The government's task is to rectify the problem exposed by the decision and apply the rule of law to all. If asylum seekers on Christmas Island have the same legal protection as those on the mainland, the case for offshore processing crumbles. Regional processing centres may still have a role in managing the issue, but this decision suggests any intention to fly those who arrive in Australian waters to regional centres without recourse to Australian law is highly problematic.

Part of the response should be to put the issue in global perspective and address the hardening of attitudes to people who have endured unfathomable pain and loss.

Mortimer says: ''I just hope that this decision gives the Australian community encouragement to see it as a good thing that the rule of law applies to everyone.''

Gillard and Abbott on Christmas Island

Daniel Flitton: Safer haven

The Age
Daniel Flitton
November 12, 2010

Labor is in a mess of its own making as the High Court gives asylum seekers new legal rights. Daniel Flitton investigates the implications.

The laws were drawn up in such a hurry, there was no time to even run the pages through a photocopier - the politicians would only see the legislation once the debate began in Parliament. It was August 29, 2001, and far away from Canberra, the Norwegian freighter MV Tampa anchored off the coast of Christmas Island, 438 rescued asylum seekers stranded on the deck.

These were heady days. John Howard was in the early phase of a drama that culminated in his most famous mantra: ''We will decide who comes to this country and the circumstances in which they come.''

In the rush to give legal backing to the actions taken by the government that fateful week - to stop the Tampa from docking at Australian territory to land its rescued passengers - six bills were hammered out and presented to Parliament for its assent. Most came into operation that very same day, with ramifications that are still playing out.

The Labor leader of the time, Kim Beazley, had decided to forgo the usual scrutiny for legislation. ''This country and this Parliament do not need a carping opposition,'' he pledged. ''What they actually need is an opposition that understands the difficult circumstance in which the government finds itself.''

In fact, Labor did oppose one aspect of the bills, a section that sought to supersede all other laws and remove legal jurisdiction over events on the Tampa.

But the rest of the legislation sailed by unchallenged - including a controversial move to cut Christmas Island out of the Australian migration zone. This created a category know as ''excised offshore places'', zones of Australian territory where asylum seekers could not apply for refugee protection

And it was the effect of this now nearly decade-old measure that the High Court cast into doubt yesterday, with a judgment that all asylum seekers should be allowed to appeal to Australia's courts, regardless of how they arrive in the country.

The creation of excised places was essential to Howard's ''Pacific Solution'' for responding to asylum seekers. After the Tampa episode, people intercepted on their way to Australia would be processed in either Papua New Guinea or Nauru. But Howard decided that even if a boat carrying asylum seekers evaded the naval patrols to Australia's north, people who arrived at either Christmas Island or Ashmore Reef - two of the closest Australian territories to Indonesia and the most likely destination for asylum seekers - could not apply to be refugees.

Unless a person arrived on the mainland, they were denied access to the Migration Act.

In practice, this created parallel systems; one for people who arrived in Australia on a commercial flight and claimed asylum, with full access to the migration laws and Australia's obligations under the refugee convention, and another far more restrictive system for those who made the journey by boat.

Labor gradually scaled back the Pacific Solution after winning office. But the concept of an excised place remained. Labor decided that asylum claims by people who arrived by boat would be processed on Christmas Island and in July 2008 strengthened a system known as a ''Refugee Status Assessment'' conducted by immigration officers. Any person unhappy with that assessment could ask for an ''Independent Merits Review'', to be carried out by independent contractors.

The High Court yesterday declared this approach ''flawed'' after examining the case of two Sri Lankan asylum seekers. Identified only as plaintiffs M61 and M69, the two men arrived by boat in October 2009 and were transferred to Christmas Island. Both claimed to be refugees, fearing persecution from the Sri Lankan army because of their supposed support for the Tamil Tigers.

The offshore processing system ''had the consequence of depriving them of their liberty for longer than would otherwise have been the case,'' the court found. ''Consideration of the exercise of the power must be procedurally fair to the persons ... [a]nd likewise, the consideration must proceed by reference to correct legal principles, correctly applied.''

This leaves Labor in a mess of its own making. When the government dismantled the Pacific Solution in 2008, the number of people arriving by boat seeking asylum could be easily accommodated. But since then, the total number of arrivals has run into the thousands.

Asylum applications in Australia are still small in comparison with other Western nations - notably in Europe. But the scale of Australia's challenge has grown exponentially in recent years.

Facilities on Christmas Island are full and people have been shifted to the mainland, but remain in legal limbo. As in 2001, asylum seekers are a vexed political issue.

''Everything this government touches turns to mush,'' said opposition immigration spokesman Scott Morrison yesterday after the court's judgment was delivered.

''What we have seen today is that it is people smugglers and asylum seekers and others who are now effectively driving the agenda in this country in terms of how claims are assessed, how decisions are made - and not the Australian government.''

Morrison may be deliberately intemperate in attacking the court for a ''terrible judgment'', but he is also homing in on an obvious government vulnerability. Polls show Australians rank border protection as a key concern, and the number of asylum-seeker arrivals under Labor was a significant reason for the drubbing Labor received in the August federal election.

Immigration Minister Chris Bowen acknowledged the court's finding had ''significant ramifications'', but he also hinted at where the government will now focus attention. ''The preliminary advice to me is that there is not a significant implication for regional processing,'' Bowen said. For regional processing, read East Timor.

Prime Minister Julia Gillard has pinned her hopes on setting up a processing hub for asylum seekers in Australia's tiny northern neighbour. That way, the government can avoid altogether the question of excised places.

But reaction to the plan has been mixed. When she first proposed what was quickly dubbed the ''Timor Solution'' in July, her initial approach to East Timor President Jose Ramos-Horta was ridiculed for leaving out Prime Minister Xanana Gusmao and showing her as a diplomatic novice. Gillard appeared to back-pedal, suggesting East Timor was one of a number of possible locations - only to then affirm that it was the first choice, all the time ignoring opposition jibes that Nauru was willing to again host a processing centre.

Both Ramos-Horta and Gusmao have said they are open to discussions, but referred the question on to what is known as the ''Bali process'' - the diplomatic arrangement to draw the region together to tackle the movement of people.

This may be a tactic to ensure Indonesia has a place in the discussion, but it also condemns the Gillard proposal to a long series of meetings and torturous negotiations. Mention of the Bali process usually elicits a yawn in diplomatic circles, hardly a conversation noted for delivering speedy outcomes.

That adds to Labor's difficulty after yesterday's court judgment. The government insists offshore processing at Christmas Island will remain, and even sought to welcome the extra oversight the court has required. ''It is worth noting none of this undermines the decision of offshore islands for the general processing arrangements in place,'' acting Prime Minister and former immigration minister Chris Evans said.

''It does impact on the legal rights of asylum seekers to seek review of decisions and obviously we're going to have to take very careful advice about what that means.''

The government did not accept that the judgment could prompt more people to seek passage to Australia. ''I don't think that's going to be a huge issue,'' Evans said. ''I'm not sure there's a great awareness of the finer points of Australian law in people fleeing persecution.''

But the government must now ensure it has a fair process to deal with the thousands of people already detained on Christmas Island and in facilities around Australia. Legal experts were poring over the judgment yesterday to determine the precise implications. Most agree the biggest impact is on the 2008 system introduced by Labor. A major overhaul will be needed. That will mean more chances for the opposition to score political points, and could prove difficult for a minority government relying on support from a Greens MP.

While the court did not overturn the notion of excised places, it has returned the right of people to appeal to Australian courts. ''Hopefully it will mean better decisions,''said Graham Thom, refugee co-ordinator from Amnesty International. He described a ''positive but not jubilant'' reaction to the court judgment. ''Anything that has all asylum seekers being treated equally is a positive,'' he said. ''The cabinet will obviously have to go back and look what this means.''

But Thom remains concerned two tiers of processing remain in place: one for people arriving by boat, another by plane. ''You are penalising people based on their mode of arrival, which the convention says you are not allowed to do,'' he said. Even after the court decision, Thom said, the immigration minister retained complete discretion as to how to process people's asylum claims, ''powers that aren't there for people who reach the mainland''.

''It means we still have a little way to go. That's not pointing the finger at the High Court ... the ball is now back in the court of the government.''

While Australia's responsibilities to refugees must be paramount, security officials argue the trick with asylum-seeker measures is to find a balance, treating people fairly but deterring people smugglers from marketing a ''product'' - passage to Australia and settlement. People who travel by boat to Australia are dangerously exposed, illustrated tragically by the hundreds who perished in the sinking of an asylum seeker vessel known as SIEV X in 2001. People smugglers have proved they are far more concerned with profit than the welfare of the people they send on poorly equipped and overburdened vessels.

An East Timor solution might take away the incentive to risk the journey to Australia. But regional countries also worry it may serve as a magnet, drawing people from across south-east Asia and beyond who are looking to migrate. Australia's political problems might be solved, but at a cost to the neighbourhood.

The other response is often ignored - intercepting boats before they depart.

Since September 2008, more than 5000 people are believed to have been prevented from departing to Australia. Some of that number are likely to have boarded other boats to Australia, as people smuggling laws in Indonesia remain weak and organisers rarely spend much time in prison.

But the courts in both countries have now shown they are crucial to the final circumstances under which people arrive in Australia.

Daniel Flitton is diplomatic editor.

Richard Ackland: A great day for freedom as gavel falls on government

The Age
Richard Ackland
November 12, 2010

The High Court in Canberra yesterday delivered two decisions that struck at the heart of Australia's most divisive and politically-pedalled fears: refugees and criminal gangs.

It was a big day for justice, freedoms and rights. As a consequence, you can be sure the political mugging will be even more unrestrained and distorted.

In the organised crime case, the court by a six-to-one majority struck down the key component of the South Australian bikies legislation. The reasoning was clear - the legislation sought to dictate what magistrates were required to do in implementing decisions of the state government.

This is an exhilarating warning to governments from the highest court - don't trample on the judicial patch.

The vice in the legislation was that it sought to turn courts into rubber-stamps for decisions of the attorney-general and police commissioner. Magistrates were required to sprinkle holy water over the executive's attempts to restrict people's freedom of association if they were deemed to be engaging in ''serious criminal activity'' (even if they weren't).

It was not so much the attempt to control people's freedom of association that concerned the High Court. After all, numerous bits of law do that. It was the obligation that the legislation imposed on the courts to make control orders at the behest of government that was so upsetting.

It goes to the heart of chapter three of the constitution, the provisions that guarantee the independence of the judiciary and quarantine the government of the day from making ''judicial decisions''.

At the moment, chapter three is all we have by way of a national charter of rights. It is limited and its application is far from consistent but in the past couple of years it has been relied on by the High Court in a number of provocative ways.

In February, the court put a big hole in the NSW Industrial Relations Act by striking down the provisions that removed the right to appeal its occupational health and safety decisions to the Supreme Court. In August last year, it struck down the Australian Military Court because the legislation required it to exercise judicial powers without there being proper constitutional underpinning. A year ago today, the court scuttled elements of the NSW criminal assets recovery legislation because it used the word ''must'' in insisting the Supreme Court make orders to restrain bank accounts and other assets without the affected person being put on notice.

NSW has a bikie case that is awaiting a hearing in the High Court. The South Australian act was supposed to be the ''model'' gangs law, and NSW rushed to draw on its framework after the bikie brawl at Sydney Airport in March last year. Even though the police already had sufficient powers to deal with criminals and criminal organisations, the government of ''Red Hot'' Nathan Rees wheeled out its anti-gangs act and got it through Parliament pretty smartly. It drew heavily on the language of the Howard era's terrorism laws, with control orders and decisions made by judges who were deemed ''eligible''. There's plenty of room for the High Court, if it's in the mood, to find that this law, too, flies in the face of the chapter three protections, but you just never know.

Who was the hold-out in the South Australia case? No surprises there - Justice Dyson Heydon, who is more conservative than the Duke of Wellington. His is the lengthiest and most fascinating judgment, and a variety of authorities are cited, including Lenin.

In the refugee case, the court (unanimously) said that the offshore processing of asylum seekers had to be conducted with procedural fairness and according to law. The fact that the former immigration minister Philip Ruddock had tried to deny legal rights to possible refugees by containing them in black holes like Christmas Island did not excuse the ministerial obligation to observe binding decisions of the Australian courts or the Migration Act itself.

Ruddock's invention, we recently discovered, was the result of some creative discussion around his family dinner table.

Already the court's decision is being flagged by the ''stop the boats'' brigade as an open invitation to asylum seekers and people smugglers to overrun our borders.

Not quite. The broader challenges to the Migration Act and the minister's discretion on granting protection visas were not upheld.

The way in which chapter three and rules of procedural fairness are applied by the High Court are far from consistent. After all, the court has held that it is perfectly legal to lock up a person indefinitely without charge. It has also held that secret evidence can be used by courts to make decisions and that can be done without showing the evidence to the party adversely affected and having it properly tested.

Chief Justice James Spigelman of NSW, who would have been chief justice of the High Court had it not been for Kevin Rudd, said something last month that we all know, but least expect judges to say publicly: ''It is all too easy to dress up a conclusion, reached on other grounds, by selecting from the smorgasbord of maxims and principles of interpretation those which assist the achievement of the predetermined result.''

Yesterday was an emphatic statement by the High Court led by Robert French. Further, ministers ignore the law and the judges at their peril. That both major decisions were scheduled to come thudding down from on high on the same day rubs in the points even more forcefully.

Julian Burnside: A victory for basic rights

The Age
Julian Burnside
November 12, 2010

The High Court yesterday decided a case concerning two Sri Lankan asylum seekers who had been refused permission to ask for a protection visa. In a unanimous decision, the court held that the asylum seekers were entitled to procedural fairness.

The case, brought by the Refugee and Immigration Legal Centre, arose this way. In recent times, a number of asylum seekers have arrived by boat at Christmas Island, which is part of Australia but a long way from the mainland. Christmas Island was excised from the migration zone under the Pacific Solution legislation in 2001. When asylum seekers arrive in a part of Australia that has been excised from the migration zone, they are classified as "offshore entry" people.

A person who arrives on the mainland is entitled to apply for a protection visa, but offshore entry people are not. The Immigration Minister has power to grant the right to apply for a protection visa, but he is not obliged to exercise that power. If the minister decides in a particular case not to allow an offshore entry person to apply for a protection visa, the decision cannot be reviewed. Although the Rudd government scrapped the Pacific Solution, this part of the Howard government's policy remains.

Under the Refugees Convention, Australia has promised the rest of the world that it will not send refugees back to a place of persecution. But if an offshore entry person is not allowed to apply for a protection visa, there has to be some other way of making sure that Australia does not breach the convention by sending genuine refugees back to a country where they are in danger.

What happens to offshore entry people is that a company of independent contractors assesses whether they are likely to be refugees. It then makes a recommendation that the minister should or should not give the person permission to apply for a protection visa. While all this proceeds, the offshore entry person is held in detention, potentially for months or years.

The government's position was that the recommendation of the independent contractors cannot be reviewed by a court, and that, in substance, there is no obligation to act fairly in deciding what to recommend.

The High Court held that the court is entitled to review the process, and asylum seekers are entitled to procedural fairness.

Those of us who are concerned about the treatment of asylum seekers are, predictably, very happy about the result. Those who have a different view about asylum seekers are, predictably, disappointed. Philip Ruddock, who was immigration minister in the Howard government, has called it a ''diabolical'' decision. But what should the average member of the public think - those who do not have a strong view either way about asylum seekers?

In my view, the decision should be warmly welcomed. At its foundation, it rests on the simple proposition that the executive government is answerable for its conduct. Under the Migration Act, the executive can hold asylum seekers in detention indefinitely, potentially forever. That is a truly awesome power. The act also allows the executive to remove asylum seekers from Australia and return them to their country of origin.

If the government's decision-making process goes wrong, genuine refugees might be held in detention for years, despite being entitled to our protection. They might be sent back to the certainty of persecution or death.

In response to the judgment, the opposition said that the government should now establish an offshore processing centre on Nauru. It is important to understand what that means. Essentially, the opposition wants to be able to process asylum seekers unfairly and out of sight.

Such an idea ought to be unthinkable for any Australian.

The High Court's reasoning turns in part on rejecting the idea ''that a statutory power to detain a person permits continuation of that detention at the unconstrained discretion of the executive''.

Putting to one side the particular position of asylum seekers, most citizens should be troubled by the idea that the executive government could detain a person without having to act fairly in determining whether that detention was legally justifiable.

More broadly, the High Court's decision rests on the well-established principle that a person is generally entitled to procedural fairness before the executive makes a decision that affects that person's rights or interests. This is another instance of the principle that the powers of executive government should not be beyond the control of the courts. Unconstrained executive power can quickly lead to oppression and tyranny. It is incompatible with the most basic assumptions on which our democracy is based.

Members of the public who, for their own reasons, are unhappy about so-called ''boat people'' should not be disturbed by yesterday's judgment. On the contrary, they should understand that the court has upheld and reaffirmed one of the most basic protections our legal system provides to reduce the risk of oppression and injustice at the hands of the executive government. They should reflect for a moment on the fact that the same principles protect their rights.

Julian Burnside is a barrister and a human rights advocate.

Greg Barns: Victory for asylum seekers against legal fiction

ABC Unleashed
by Greg Barns
11 November 2010

The penchant of both the ALP and the Liberal Party for creating legal fiction so as to deny asylum seekers their human rights has come unstuck this morning.

The High Court's ruling that the offshore processing regime which denies asylum seekers fairness in how their cases are assessed, is procedurally unfair represents a victory for human rights and fairness over the cruel politics of immigration to which this country has become all too accustomed in the past decade.

This decision involves two Sri Lankan Tamils known only as M61 and M69 who arrived at Christmas Island in October 2009. Christmas Island of course is one of Australia's offshore territories which have been subjected to the Alice in Wonderland excision process that enables the Australian Government to say that when it comes to migration it's not part of Australia.

The two men applied for protection visas on the basis that if they returned to Sri Lanka they would be persecuted by that country's government. Immigration officials made an assessment and knocked them back. There was then an Independent Merits Review carried out by consultants employed by the Department and they too decided the men were not refugees.

The two men argued that the Migration Act applied to their case because Section 46A of that Act provides that the Minister for Immigration has the power to allow the Migration Act to apply to asylum seekers who are regarded as "offshore" entrants. Undertaking assessment processes as was done in this case is an indication that the Minister is exercising that power they argued. Given that the Migration Act applies the men argued, they were entitled to be accorded procedural fairness and this was not done so in their case. The High Court, in a unanimous decision, agreed with the men.

In short, the politics of Tampa and beyond have unravelled. It was former prime minister John Howard who, when he decided in the lead up to the 2001 election to turn back the Tampa - a ship carrying asylum seekers - created the fiction of offshore processing so as to deny asylum seekers rights to appeal decisions taken against them and to be treated equally with those who made it to the Australian mainland and applied for protection.

The High Court also rejected an argument from the Commonwealth's lawyers that the Government has no implied obligation to afford procedural fairness to asylum seekers because asylum seekers have no rights in a legal sense.

"The Commonwealth and the Minister submitted that, if any power was being exercised under s 46A(2) (and they submitted that it was not), there was no implied obligation to afford procedural fairness because the power is not a power to destroy, defeat or prejudice a right; it is a discretionary power to confer a right," the Court noted.

But, referring to previous cases, the Court rejected this submission arguing that "the obligation to afford procedural fairness is not limited to cases where the exercise of the power affects rights in the strict sense, but extends to the exercise of a power which affects an interest or a privilege."

This decision also shows that the Migration Department's assessment processes were severely flawed in this particular case. The review processes undertaken, said the High Court, failed to consider all the claims put forward by the men and did not give them an opportunity to view information about Sri Lanka which the assessor used in making a decision. One wonders how many other cases are similarly flawed.

"There is a considerable public interest in the observance of the requirements of procedural fairness in the exercise of the relevant powers", the Court concludes.

This is pointed message by the judiciary - the protector of individual's rights against excesses of the executive and legislature - that in a democratic society the rule of law must apply to anyone irrespective of their status as citizen or non-citizen. It is a principle that has been notably absent from migration law and practice on the part of governments in Australia for some time now - until today that is.

Greg Barns is a barrister and a director of the Australian Lawyers Alliance.

David Marr: As one, judges show they safeguard liberty

Sydney Morning Herald
David Marr
November 12, 2010

Unanymous decisions of the High Court are never an accident. Only every decade or so do all seven judges speak with a single voice on big issues of principle. It's their way of sending a blunt message to government. Their support for the Tamil asylum seekers M61 and M69 lays down the law about fair dealing for all refugees. But underneath it's about safeguarding liberty.

Everything in the case turned on the fact that they - like all boat people since mandatory detention was introduced by the Keating government in 1992 - were deprived of their liberty while their claims were assessed. One way of boiling down this dramatic decision to its essentials is this: the High Court will ensure the courts are always there to see that liberty is only lost according to law.

The judges appear to be making amends for what is widely regarded as one of the High Court's worst decisions. Five years ago a majority of the judges decided Ahmed Ali Al-Kateb, a Palestinian whose claim for refugee protection had been rejected, could be held in Australia in immigration detention for the rest of his life if no other country would take him off our hands. So shocking was that conclusion, that Al-Kateb was released from detention by the Howard government. They could not live with a rule they themselves had asked the court to make. Al-Kateb has since become an Australian citizen. But his name is in the law books marking an embarrassing low point in the High Court's valuation of liberty.

The tone and approach of the judges to the predicament of M61 and M69 could not have been more different. This was all about setting limits on governments acting alone to deprive people of their liberty.

A little history is required at this point. Back in 2001, Australia set up a deliberately second-class system for assessing refugee claims by boat people. About 14,000 have gone through that system which has never been fundamentally challenged until now. The architects of the scheme tried to exclude the courts by separating as far as legally possible the assessment of claims from the minister's role in granting visas. Assessments of visa claims were said to be "non statutory" investigations - hence outside the control of the courts - and only once they were complete did the minister enter the picture. Whether he granted a visa at that point was something said to be absolutely at his personal discretion. Once again, the courts were supposed to be excluded.

They might work, said the court, except that while each case was going on - and here the judges used italics to indicate the crucial importance of these few words - "the claimant was detained". And that changes everything. Loss of liberty, said the seven judges, can only be for lawful purposes. No one can be detained in ways beyond the supervision of the courts.

Technically, the High Court collapsed the distance between the assessors and the minister. The court found that despite claims to the contrary, the minister was there at the start directing the assessors to do their work. They are not independent of the law but caught up in the machinery of the Migration Act. The work of the assessors - but not the minister - can therefore be directed by the courts.

The ultimate upshot? Shock, horror: all asylum seekers have to be dealt with fairly and according to law. And governments of all persuasions are on notice that the court now takes far more seriously its traditional role as guardian of liberty.

Offshore detention 'likely to be longer' after High Court ruling

Paul Maley and Sid Maher
The Australian
November 12, 2010 12:00AM

Failed asylum-seekers will be given access to the judicial system after a pivotal High Court ruling.

The decision lands a significant blow to Australia's offshore processing regime and that the government warns will "elongate" detention times.

But in a development that will increase pressure on the Gillard government to make good on its promised Timor Solution, Immigration Minister Chris Bowen said plans for a regional processing centre would not be affected by the court's decision.

The High Court yesterday unanimously ruled that two Tamil asylum-seekers from Sri Lanka were denied procedural fairness after their claims were rejected under the Rudd government's independent merits review process.

The administrative system - under which failed asylum-seekers can appeal against decisions by the Department of Immigration and Citizenship - was introduced by the Rudd government in July 2008.

In a decision Mr Bowen described as "significant", the High Court rejected the government's use of the Migration Act to detain asylum-seekers on Christmas Island, while claiming the review process was "non-statutory" - occurring outside of Australian law.

"The High Court have found that refugee assessments and independent merits reviews are subject to judicial appeal, judicial review in certain circumstances," Mr Bowen said.

The decision creates a political headache for the Gillard government, which will be beholden to the Coalition should fresh legislation be required as a result of the ruling.

The Greens have long opposed offshore processing and independent Andrew Wilkie yesterday hinted strongly he was unlikely to support moves by the government to use legislation to get around the court decision and restrict asylum-seekers' access to courts.

"I have been an outspoken critic of offshore processing for some time. I oppose offshore processing and the excision of islands," Mr Wilkie said.

The Coalition's immigration spokesman, Scott Morrison, refused to say if the opposition would support new legislation, describing yesterday's decision as a "policy failure".

"This government has been caught out changing the rules, doing it badly and now the taxpayers and the Australian people are paying the consequences of that," Mr Morrison said.

Mr Bowen said the government was still digesting the decision, but he would recommend a course of action to cabinet in coming weeks.

"It's important that we recognise that this is a significant judgment; it has significant ramifications," Mr Bowen said.

With one in two asylum-seekers failing, Mr Bowen said the court's ruling could "elongate" the refugee-determination process. "It certainly has the potential implication that people would be in detention for longer as those appeals are worked through," he said.

Mr Bowen said the Christmas Island detention centre would stay open. He told the ABC's 7.30 Report he rejected suggestions the immigration detention system had been thrown into chaos.

He said appeals based on the decision would probably go to the High Court rather than lower courts and yesterday's decision would not open up scope for "court-shopping".

One of the two asylum-seekers who brought the action was a Sri Lankan Tamil known as M69, who spent 18 days at sea after his asylum boat left the Sri Lankan coastal town of Beruwala.

He was taken to Christmas Island on October 2 then transferred to Villawood, in Sydney's west, in March, where he was to be deported. He described the court's verdict yesterday as "fantastic".

In a statement issued by his lawyer, David Shaw of Holding Redlich lawyers, he said he hoped his claim would now be considered in a way that was "legal and fair" and would benefit other failed Sri Lankans.

"This is the first good news I have heard in 10 months," the man, who is still in the Villawood detention centre, said yesterday. "I am feeling fantastic today. This is a very happy day."

Yesterday's ruling does not give the courts the power to review evidence in individual cases. Rather, it will allow failed asylum-seekers to mount legal challenges on procedural aspects of their cases.

Sub-dean of migration law at the Australian National University Marianne Dickie said the judgment was aimed at the system set up by the Rudd government for deciding refugee cases in 2008. "The procedures and policies they put in place left them open to this judgment," she told The Australian. "They deliberately put a process in that was outside the law."

However, the Howard government's decision to excise areas of Australian territory from the Migration Act formed the basis of the Rudd government's administrative architecture.

Ms Dickie said every failed asylum-seeker could now potentially contest their case in court. "All those cases decided in this way should be reconsidered to avoid them all going to court," she said.

David Manne, the executive director of the Refugee and Immigration Legal Centre, the organisation that co-ordinated the challenge, hailed the decision as a win for his client, and for Australia.

"The government's attempts to keep these people outside Australian law and outside the Australian courts have failed," he told The Australian.

There are 4711 asylum-seekers in detention centres around the country, although Mr Bowen said only 145 of them had had their claims rejected on review. He said claims would be processed as normal, despite the uncertainty.

Greens immigration spokeswoman Sarah Hanson-Young said her party would introduce a bill next week to repeal the excision policy, introduce "proper judicial review" and challenge "the presumption of detention".

Senator Hanson-Young said the ruling meant there was a "clear conflict between Australia's Migration Act and the decision of the High Court".

While the Greens bill will fail on combined Coalition and Labor votes, the party's position and that of Mr Wilkie mean the government will not be able to get a lower house majority for any legislative moves to overcome the High Court decision.

Additional reporting: Lauren Wilson, Lanai Vasek

Ruling a blow to asylum strategy

Lauren Wilson
The Australian
November 12, 2010 12:00AM

Australia's capacity to detain asylum-seekers on Christmas Island and refuse them access to appeal determinations is in doubt.

The capacity to detain has been fundamentally undermined by a 37-page High Court judgment.

The landmark ruling could mean the government cannot lawfully deport asylum-seekers from Christmas Island whose claims for protection visas have been denied. It also means all failed asylum-seekers processed on Christmas Island could have their claims reviewed.

The High Court yesterday unanimously ruled that two Tamil asylum-seekers were denied procedural fairness and failed to have their claims processed in accordance with the Migration Act.

The High Court rejected the government's use of the Migration Act to detain asylum-seekers on Christmas Island while claiming the assessment process was "non-statutory" -- occurring outside of Australian law.

The government had maintained the processing of asylum-seekers on Christmas Island occurred within an exclusion zone and therefore gave failed asylum-seekers no rights to appeal the decisions made on their refugee status in Australian courts.

That meant illegal boatpeople processed offshore on Christmas Island did not have the same rights as asylum-seekers processed onshore.

But the High Court ruled that the government had used the statutory powers of the Migration Act to justify the continued detention of asylum-seekers.

In their strongly worded judgment, the seven High Court judges remarked the Migration Act was used directly to limit the rights and interests of asylum-seekers and that it was necessary that the principles of natural justice regulate that power.

"That price of prolonged detention is a price which some claimants may have paid without protest. After all, they sought entry to Australia and this was the only way of achieving that end," the judgment said.

The High Court determined that the third-party contractor who reviewed the Tamils' application for asylum had used the Migration Act "as no more than guides to decision making".

David Manne, executive director of the Refugee and Immigration Legal Centre, who co-ordinated the High Court challenge, said the court had ruled his client's refusal of refugee status was "unfair and unlawful".

"The government's attempt to keep these people outside Australian law and the protection of Australian courts has failed," he said.

"This decision applies to every asylum-seeker in Australia, subject to the offshore processing regime. It means that not one single one of them should be removed without their consent until they have had their claims assessed through a new and lawful process in accordance with the High Court's ruling."

The two Sri Lankan asylum-seekers travelled to Australia by boat and have been detained on Christmas Island since last year, claiming asylum on the grounds that they faced persecution from the Sri Lankan government for supporting the Liberation Tamil Tigers of Eelam. During this time, their claims for asylum were rejected, as was a subsequent review of that decision. The High Court ordered that the government and the Immigration Minister pay their legal costs.

Despite hue and cry, it's not a massive win

Chris Merritt, Legal affairs editor
The Australian
November 12, 2010 12:00AM

The real impact of the High Court's decision in the asylum-seeker case will be felt by bureaucrats and lawyers, not refugees.

This decision will not free anyone from detention. It has struck down no law.

It has merely found that the asylum claims of two Sri Lankans were handled so poorly that the process did not meet the minimum standard of procedural fairness.

In time, more asylum-seekers can be expected to ask more lawyers to run similar cases.

And if they have also been subjected to shoddy public administration, they deserve to win in court.

But even if they do, it will have no impact on their migration status.

This can be seen from the fate of the two men at the heart of yesterday's case.

The Refugee and Immigration Legal Centre, which represented them, did not call on the government to set them free. It asked the government to agree to reprocess their applications in a more rigorous manner.

Constitutional lawyer George Williams is among those who disagree with over-excited advocates on both sides of the refugee debate who see this decision as something far more significant than it is. "On one side there are people who claim this is a massive victory - it's not," said Williams.

"It will lead to more claims and it may lead to people succeeding in claims when there is a genuine problem in the way their application is assessed.

"But it still doesn't lead to anything because the minister still retains his discretion."

The most that can be said about this ruling is that it will quickly expose those bureaucrats who process asylum claims with one eye on the views of their political masters.

Judicial oversight can be expected to kill off any suspicion that the refugee-processing system is too easily influenced by Canberra's political whims.

There will be those who will call for urgent legislative change to keep the court away from these decisions. But that response is disproportionate when compared to the reality of what the court decided.

It needs to be kept in mind that this decision only concerned the procedure that is used when processing offshore claims for asylum.

The High Court, unanimously, did not wander into the dangerous territory of examining the substantive merits of whether these two men deserve to stay in Australia.

That is not the High Court's job and this court plays by the rules.

Timor solution in tatters

Sydney Morning Herald
Yuko Narushima, Immigration Correspondent
November 12, 2010

The government's plans for a detention centre in East Timor have been thrown into doubt by a High Court judgment demanding the equal treatment of asylum seekers, regardless of how they arrive.

In a landmark decision, the High Court ruled that two Sri Lankans who arrived by boat were denied ''procedural fairness'' because their asylum claims were reviewed through a process unchecked by Australian law.

It also opens the possibility of appeals by hundreds of rejected asylum seekers.

The offshore detention regime was set in 2001 during the Tampa crisis.

The lawyer who led the High Court challenge, David Manne, said the decision yesterday was a triumph for the rule of law.

''It applies to every asylum seeker in Australia subject to the offshore processing regime and it means not a single one of those people should be forced from Australia until they have had their claims assessed through a new and lawful process,'' he said.

It was now crucial for the government to investigate past cases where asylum seekers had been deported under a flawed system, he said.

The ruling also has implications for the planned offshore processing centre. ''It's unlikely the government could cure the fundamentally flawed process, as identified by the High Court, by sending people to Timor or Nauru,'' Mr Manne said.

But the Prime Minister, Julia Gillard, said the government was seeking legal advice. And the Immigration Minister, Chris Bowen, said preliminary advice suggested there would not be ''a significant implication'' for regional processing. ''But, of course, I will be seeking further advice,'' he said.

The opposition was appalled by the ruling. Its immigration spokesman, Scott Morrison, said it would lead to longer periods of detention and would cost taxpayers more.

"The only winners are people smugglers and lawyers,'' he said. "The big losers will be Australian taxpayers who will fund asylum seekers' legal challenges.''

But refugee advocates disagreed, saying the ruling made the costly exercise of shipping all boat arrivals to Christmas Island redundant. The Refugee Council of Australia urged the government to resist the temptation to undermine the decision.

"The main impact is to put all people seeking asylum in Australia on an equal footing. Both the mainland and offshore asylum processes will now be subject to judicial review,'' said the chief executive, Paul Power.

The national refugee co-ordinator at Amnesty Australia, Graham Thom, said the government had an opportunity to rectify a ''grave and long-standing error of judgment'' that blatantly discriminated against boat arrivals.

The Greens senator Sarah Hanson-Young promised to introduce a bill to repeal the excision policy and give boat arrivals access to judicial review.

The case upheld yesterday related to two asylum seekers, identified as M61 and M69. They arrived by boat last year and reached Christmas Island on October 2.

Both claimed refugee status out of fear of the Sri Lankan army, agencies of the government and paramilitary groups because of their alleged support for the Tamil Tigers.

They appealed to the High Court against imminent deportation on the grounds of lack of procedural fairness because the former immigration minister, Chris Evans, had failed to consider their cases personally. The minister has the power under the Migration Act to grant a visa if it is in the public interest.

''Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the executive,'' the judgment said.

The men, being held at Villawood detention centre, said they were happy and grateful.

''It is the best news they've had in 10 months,'' Mr Manne said.

The offshore detention regime was set up to deny those arriving by boat the right to apply for protection unless the immigration minister made an exception. In effect, it created a two-tier system. Those who arrived at mainland airports had the right to appeal in court against their rejections but those who sailed were funnelled through a separate process that mimicked the courts but was not bound by law.

High Court judgment has ramifications

November 11, 2010 - 1:29PM
AAP / Sydney Morning Herald

A High Court judgment in favour of two Tamil men seeking a review of their refugee claims does not mean offshore processing of asylum seekers is invalid, the federal government says.

The judgement in favour of the Sri Lankans was handed down on Thursday involved Australia's system, which processes asylum seekers on Christmas Island.

"It is important that we recognise this is a significant judgment ... it has significant ramifications," Immigration Minister Chris Bowen told reporters in Sydney.

"It needs to be worked through in a calm and methodical manner."

But Mr Bowen denied the decision brought into question the validity of offshore processing.

"One of the things I've sought advice on is implications for both regional processing and offshore processing," he said.

"The preliminary advice to me is that there is not a significant implication for regional processing, but of course I will be seeking further advice."

But the minister foreshadowed longer waits in detention for asylum seekers requesting reviews of their refugee claims.

"It's a judgment which has the potential to elongate the amount of time it takes to process refugee claims, that's what I mean by significant ramifications," Mr Bowen said.

In a unanimous decision, the High Court found the men were denied legal fairness.

It further declared it was an error of law for the government's "offshore processing regime" to deny asylum seekers their rights to apply for a protection visa.

Refugee claims will continue to be processed while the government considers the judgment, Mr Bowen said.

High Court rules asylum seekers denied 'procedural fairness'

Thursday, 11 November 2010
by Tom Cowie

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."

Offshore processing to stay: McClelland

November 11, 2010 - 1:39PM
AAP / The Age

Offshore immigration detention is here to stay following a High Court ruling in favour of two Tamil asylum seekers, Attorney-General Robert McClelland says.

In a unanimous decision the High Court declared the Sri Lankan men, detained at Christmas Island, were denied procedural fairness in applying for refugee status.

Mr McClelland said the ruling would affect refugee appeals rather than the overall regime of offshore processing.

"I understand the decision is not to overturn the offshore processing regime but rather to indicate that there is a level of review," he told Sky News on Thursday.

"Additional review is appropriate in respect to legal matters relating to the decision making process, including potentially those relating to the issue of procedural fairness."

Lawyers interpreting the decision said it would affect refugee application procedures set up by the Rudd government in 2008, rather than 2001 laws which excised Christmas Island from the migration zone to deny asylum seekers legal rights.

In the High Court case the asylum seekers, identified only as plaintiffs M61 and M69, arrived by boat in 2009, reaching Christmas Island on October 2 last year.

Both claimed refugee status out of fear they faced persecution from the Sri Lankan army because of their alleged support for the Liberation Tamil Tigers of Eelam.

Faced with deportation, the pair appealed to the High Court on grounds of lack of procedural fairness because former immigration minister Chris Evans had failed to personally consider their cases.

MEDIA RELEASE: Refugee system is fundamentally flawed

Refugee Action Coalition
Ian Rintoul
mobile 0417 275 713


Refugee groups have welcomed the unanimous High Court decision declaring the present off-shore processing invalid.

"The court's decision has confirmed what refugee advocates have been saying all along - that off-shore processing is discriminatory and subject to political manipulation. The government should apologise to every asylum seeker whose rights have been denied.

It should immediately make arrangements to ensure the safety and the return to of all those who were deported after being denied refuge status under this flawed system," said Ian Rintoul, spokesperson for the Refugee Action Coalition.

"Hundreds of rejected asylum seekers are immediately affected by this decision. The government must state explicitly that it will not move to deport any asylum seekers until their case can be properly determined.

"Instead of scrapping off-shore processing in 2007, successive Labor governments left the flawed arrangements of the Howard government in place. Refugees have paid a high price for their lack of political courage.

"Julia Gillard and Chris Bowen should announce a far-reaching review of the Migration Act and most importantly change the law to reflect the High Court decision.

"The High Court decision gives the government the opportunity to finally take the decisive action needed to establish a humanitarian refugee policy - to close Christmas Island, end off-shore processing and mandatory detention.

"While the High Court has now declared that refugee determinations must be done according to principles established by Australian courts, it has left in place the possibility for two streams of refugee assessments. The Minister can still make particular arrangements for so-called "off-shore persons".

"To remove the possibility of further discrimination, the government has to end the excision of Christmas Island and other Australian territory from the effects of the Migration Act.

"The Minister seems to be playing "damage control". That's not good enough. What's needed is a fundamental review of a fundamentally flawed system."


The Refugee Action Coalition has called a protest beginning at 12.30 at the Henry Deane Plaza (Railway Square end of Central railway tunnel) and then moving to the Immigration Department offices, 26 Lee Street, City). Speakers at the rally include The Greens representative Sylvia Hale, Reverend Mee Ping Lau, lawyer Julian Gormly, and refugee speakers.

The protest will be highlighting the High Court decision and calling for an to forcible deportations. In particular, the rally will call on the Immigration Minister to intervene to prevent the deportation of a Chinese underground Christian. Among other things, new information including a summons issued by the Chinese Public Security Bureau for her husband to appear in court has not been considered by the Minister. The father and son of the family were deported to China in the last week of October.

For more information contact Ian Rintoul 0417 275 713

Court casts doubts over legality of offshore processing

The Age
Yuko Narushima
November 11, 2010 - 11:35AM

The validity of Australia's controversial offshore processing of asylum seekers has been thrown into doubt after a court found fundamental errors of law in the system.

The High Court has today ruled that two Sri Lankan boat arrivals were denied "procedural fairness" in the review of their rejected refugee status claims.

The unanimous judgment by all seven judges, handed down this morning, found those reviewing refugee determinations were bound to act within Australian law. Currently, those who seek asylum in Australia by boat are denied access to Australian courts.

The full impact of the decision, and what implications it might have for the operations of the offshore detention system, is still being assessed.

The High Court ruling places all asylum seekers on equal footing before the law, regardless of their mode of travel.

This neutralises any legal benefit for the government to first send all boat arrivals to Christmas Island.

Australia's offshore detention regime was set up to deny boat arrivals the right to apply for protection unless the immigration minister made an exception, or ''lifted the bar''.

In effect, it created a two-tier system of asylum where those who flew into mainland airports were given the right to appeal their rejections in court but those who sailed were funnelled through a separate review process that mimicked the courts but were not bound by Australian law.

The Commonwealth and the minister were order to pay the plaintiff's costs.

The two asylum seekers, identified only as plaintiffs M61 and M69, arrived by boat in 2009, reaching Christmas Island on October 2.

Both claimed refugee status out of fear they faced persecution from the Sri Lankan army, agencies of the government and paramilitary groups because of their alleged support for the Liberation Tamil Tigers of Eelam. Faced with deportation, the pair appealed to the High Court on grounds of lack of procedural fairness because former immigration minister Chris Evans had failed to personally consider their cases.

The minister has the power under the migration act to grant a visa if it is in the public interest.

The High Court upheld their argument that they had been denied procedural fairness when having their claims for refugee status denied.

''Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the executive,'' the judgment said.

The court found the government had erred in not regarding the asylum seekers as being bound by the Migration Act and decisions of Australian courts.

- with AAP

Asylum seekers could face longer detention time

ABC Online News
By David Mark and Sabra Lane
Posted Thu Nov 11, 2010 7:30pm AEDT

Asylum seekers could face longer periods of detention because of slower processing times in light of today's landmark ruling in the High Court.

The court ruled unanimously that two Sri Lankan asylum seekers who arrived by boat last year were denied procedural fairness under the Migration Act because of where they were held.

Before today's decision, asylum seekers who arrived by boat and were sent to offshore processing centres like Christmas Island were denied access to the courts, unlike those who arrived by plane or those who had overstayed their visas.

Prime Minister Julia Gillard has hit out at Opposition suggestions that the ruling will throw asylum seeker processing into chaos, accusing them of hypocrisy.

"The simple fact here is this is legislation passed by the Howard government; everybody from the Opposition who is probably criticising it today voted for it," she said.

Immigration Minister Chris Bowen is seeking advice but says the ruling might mean people are detained longer while they wait for court rulings.

"It does have the potential to elongate the period of time it takes to process," he said.

"It's important that we recognise that this is a significant judgment. 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."

In the meantime, he says the Government will continue processing refugee claims.

But lawyers say the ruling has huge implications and the Government should abandon offshore processing.

"I think what it means is the whole idea of keeping people in detention for long periods has to be reviewed and alternatives to detention have to be seriously considered," said Kerry Murphy, a specialist immigration lawyer.

David Manne, the lawyer who represented the two Sri Lankan asylum seekers, is also urging the Government to abandon offshore processing.

It may be weeks before the full implications of the High Court decision are fully understood and acted upon.

The 5,000-odd asylum seekers currently in detention around Australia will be waiting and watching the Federal Government very closely.

Liberal backbencher Philip Ruddock, who oversaw the changes to Migration Act in 2001 when he was immigration minister, says the ruling is a "diabolical" decision.

"In terms of being able to manage Australia's borders, this will be a diabolical decision. It will increase rapidly the numbers of people seeking to access Australia," he said.

"I can't see immediately any legislative response to this measure and that means that all of those who access Australia will have access not just to a preliminary decision maker and magistrate, it'll be to the Federal Court and ultimately the High Court.

"In relation to the court's workloads, all of those people, and we're now looking at 8,000 who may have transited Christmas Island and been excluded from access to judicial review, will now be able to seek it."

The Greens say they will introduce a bill into Parliament next week giving all asylum seekers equal access to the law.

Court upholds offshore asylum rights

ABC Online News
First posted Thu Nov 11, 2010 10:04am AEDT
Updated Thu Nov 11, 2010 10:59am AEDT

The High Court has ruled in favour of two asylum seekers, in a move that could undermine the Federal Government's offshore processing system.

The two Sri Lankan Tamils had their refugee claims denied and wanted to challenge that decision in the courts.

But they were prevented from doing so because they were being held in an offshore detention centre on Christmas Island.

However, in a unanimous decision, the High Court has ruled that was an error of law and the two men were denied procedural fairness when Government contractors reviewed their case.

The men had wanted Immigration Minister Chris Bowen to personally review their case but were told he had no duty to do so because they were being held offshore.

The High Court's decision means the Federal Government can no longer refuse to allow the courts to review decisions made about people who are processed offshore in places like Christmas Island.

The Federal Government has been ordered to pay the costs for the two asylum seekers.

The men, both alleged supporters of the paramilitary Tamil Tigers, arrived on Christmas Island last October claiming they would be persecuted if sent back to Sri Lanka.

'Diabolical' decision

Coalition backbencher Philip Ruddock, who was immigration minister in the Howard Government, has called it a "diabolical" decision.

He says the courts will struggle to cope with the number of cases.

"Once they access it for a preliminary decision if they don't like the outcome they will take a further appeal," he said.

"If they don't like that outcome they will take a further appeal. In the end all of them will end up before the High Court.

"I think the High Court will have a very, very, significant case load which they will have difficulty in managing."

Attorney-General Robert McClelland says the court judgement will have to be carefully examined.

"Orders have been made in favour of the claimants. We'll obviously have a look at that and the repercussions [as to] whether it's necessary to consider any additional review mechanisms," he said.

Lawyers call for review on asylum

Chris Merritt and Lanai Vasek
The Australian
November 13, 2010 12:00AM

The federal government has been urged to review the way it handles applications for asylum in the wake of this week's landmark High Court decision.

The Law Council of Australia called for the review after the court on Thursday cleared the way for a new wave of legal challenges by those claiming their asylum applications have not been dealt with fairly.

"Nobody knows what the impact will be and the system needs to be properly resourced to deal with it," said Law Council president Glenn Ferguson yesterday.

The opposition said the review needed to go beyond the question of looking at ways of dealing with the expected increase in court challenges.

"We don't need just a mop-up of the High Court case. We need a mop-up of the government's border protection and immigration failures," said opposition immigration spokesman Scott Morrison.

In a unanimous decision, the High Court ruled that the two Tamils who brought the challenge were denied procedural fairness and failed to have their claims processed in accordance with the Migration Act. The Tamils are in immigration detention.

Greg Craven, vice-chancellor of the Australian Catholic University, said one of most positive aspects of the decision would be the fact that it imposed pressure on the government to avoid court backlogs by increasing the pace of decision-making. "Hopefully that is what will happen because you don't want things dragged through the courts," he said.

Before the Howard government introduced the Migration Litigation Reform Act in 2005, Federal Court figures show that migration cases accounted for 79 per cent of listings. Migration cases now account for 46 per cent of listings in the Federal Court, its annual report shows.

James Jupp, associate professor at the Centre for Immigration and Multicultural Studies at the Australian National University, said the cost to the government as a result of the ruling could be in the "millions".

"We're looking at a fair amount of money . . . there could be significant budget blowouts even if we're only dealing with a couple of hundred cases," he said.

Julia Gillard said Immigration Minister Chris Bowen was weighing up Labor's response to the ruling and considering if new legislation to protect offshore processing was required.

"He'll work through (the decision) and make some recommendations about the need for legislative change," the Prime Minister said in Seoul.

Mr Bowen said it was his intention to continue with the plan for offshore processing.

"I think that offshore detention and the excision of islands is appropriate," he said.

Border Protection Command yesterday confirmed the interception of the 119th boat to arrive this year, carrying 39 passengers.

Bowen considers response to asylum ruling

ABC News Online
First posted Fri Nov 12, 2010 1:37am AEDT
Updated Fri Nov 12, 2010 8:46am AEDT

Federal Immigration Minister Chris Bowen says the Government could respond to the High Court ruling on asylum seekers by streamlining the current review process, or making it more robust.

The court ruled unanimously that two Sri Lankan asylum seekers who arrived by boat last year were denied procedural fairness under the Migration Act because of where they were held.

Before yesterday's decision, asylum seekers who arrived by boat and were sent to offshore processing centres like Christmas Island were denied access to the courts, unlike those who arrived by plane or those who had overstayed their visas.

The implication of this finding is that the way is now open for many more asylum seekers to take their case to the High Court rather than the limited appeals process currently available.

Opposition immigration spokesman Scott Morrison told ABC 1's Lateline program that could create gridlock and chaos.

"I think the High Court has called it as they've seen it, as they have every right to do, but there are terrible consequences, both for the taxpayer, both for the integrity of our system," he said.

"What we don't want to see is a return to the bad old days when people game the system, where they come and they seek to make appeals endlessly in order to protract their stay in Australia.

"And sad to say as a result of this judgment, and without any genuine action taken by Chris Bowen, that's what's going to happen."

Immigration Minister Chris Bowen told ABC 1's 7.30 Report the ruling might mean people are detained longer while they wait for court rulings.

"It certainly does mean that the length of time for some people in detention, if they take up their appeal rights, would be lengthened," he said.

But he said he has advice appeals would go straight to the High Court.

"The High Court would be the relevant jurisdiction and they could be appealed, in some cases, to the full bench. But it's not as if it opens up, necessarily, the options for court shopping," he said.

Mr Bowen says it is too early to say how the Government will respond to the decision, but there are several possible options.

"What we need to do is to assess for example whether we need to have a more robust refugee assessment process, an independent merit review process, so the chances of appeal for matters of procedural fairness are minimised," he said.

"Or whether we need to streamline the current system further to reduce the amount of time it would take to get to appeal."

One hundred and forty five asylum seekers are directly affected by the ruling, but it could have an impact on another 1,000.

Mr Bowen said he has been advised the High Court ruling does not apply to past asylum decisions.

He also said he is confident the ruling has no implication for the Government's plans for a regional processing centre for asylum seekers.

Rejected refugees given new hearings

The Age
Michael Gordon and Yuko Narushima
November 20, 2010

At least 150 failed asylum seekers will have their claims for refugee status reassessed following the High Court's landmark decision to uphold a constitutional challenge to the Gillard government's offshore processing regime.

All of those whose claims have been rejected under a two-stage offshore regime found to be flawed by the court will be offered new hearings before an independent assessor who has no connection with the initial reviews.

The offer coincides with rising tensions inside increasingly crowded mainland and offshore detention facilities that led to detainees on Christmas Island sewing their lips together yesterday.

Aside from fresh hearings for those whose claims have been rejected at the second merit review stage, the government is planning to strengthen the process that will apply to hundreds of asylum seekers whose claims are yet to reach the merit review stage.

It is not clear how long the government expects the reviews to take, but newspapers yesterday carried advertisements for ''experienced administrative decision makers'' to perform merit reviews of refugee status decisions.

The executive director of the Refugee and Immigration Legal Centre, David Manne, described the offer as a ''sensible and welcome first step'' response to the court's finding that errors of law had been made and procedural fairness denied at the merit review stage.

The response meant no one who had been assessed under the flawed process could be removed from Australia without having their case reassessed and subject to the rule of law, Mr Manne said.

In an bid to allay mounting anxiety among asylum seekers, those whose claims are being assessed are being told they will be given procedural fairness, including the chance to respond to any negative information that might be used in assessing their case.

A spokesman said a response to the High Court would be made ''at the appropriate time''.

Immigration Minister Chris Bowen confirmed that 10 people had stitched their lips together yesterday and predicted more protests could follow.

''This is distressing for me and most of the Australian people,'' Mr Bowen said. ''It is very important that all our detainees ... realise that protests such as this do not change visa application outcomes.''

Mr Bowen said the 10 asylum seekers were Iraqi, Iranian and Kurdish. They were part of a protest of about 160 detainees who were declining food and medical and psychological assistance. ''I think that we can expect more tension at our detention centres as our recognition rates continue to fall,'' Mr Bowen said.

The comments infuriated the head of the government's advisory group on the mental health of asylum seekers, Louise Newman.

''Implicit in his statement is that we should accept this,'' Dr Newman, a psychiatrist, said. ''We should accept - for the greater political good - that this degree of human suffering is acceptable.''

The latest protest follows the mass breakout of detainees in Darwin, two suicides at Villawood and a rise in self-harm among detainees. ''This is not an isolated incident; this is something that is systemic,'' Dr Newman said, calling on the government to reconsider the policy of mandatory detention.

Almost 6000 asylum seekers are in detention in Australia, with 2971 on Christmas Island.

The opposition said the government had to claim responsibility for the latest protests and harden it's policies. ''They must now confront the reality of their failures, climb down and implement the policies we know to be effective,'' immigration spokesman Scott Morrison said.

Australian of the Year Patrick McGorry said the government had to continue with positive steps it had taken to bring asylum seekers closer to services in mainland cities.

Advocates welcome asylum claim reassessments

ABC Online News
By Alexandra Kirk and staff
Posted Sat Nov 20, 2010 10:53am AEDT

The Federal government is set to offer all offshore asylum seekers who have been refused refugee status a fresh start, in response to last week's landmark ruling on immigration.

Off-shore asylum seekers will have the automatic right to have their claims re-assessed by a different reviewer under a revamped processing regime.

It comes at a critical time, with asylum seekers on Christmas Island protesting and a small group even sewing up their lips.

The ABC understands the Immigration Department has already begun informing detainees they can have their asylum claims reviewed, but the Immigration Minister Chris Bowen has declined to comment.

Refugee lawyer David Manne, who initiated the successful High Court challenge, has welcomed the move.

"It is a welcome and sensible first step in the government complying with the unanimous ruling of the High Court," he said.

"It'll ensure that everyone who has been refused under the process, which the Court ruled was fundamentally flawed, will now have their case fully reassessed with a new decision, made by a different decision maker, according to Australian law.

"Under this offshore processing regime there have been serious systemic errors in decision making and secondly, past experience shows that where unlawfulness or unfairness is corrected, the outcome can be completely the opposite and that is that someone who was refused protection from persecution can in fact be found to be owed that protection and to need it.

"What this will do is it will ensure that everyone is now on equal footing with access to the ordinary workings of Australian law, no matter whether they arrive by plane on the mainland, or by boat in excised Australian territory.

Lips sewn

The immigration system has been under renewed pressure after a large protest at the Christmas Island detention centre.

Detainees at Christmas Island have been undertaking a peaceful protest for a few days, but it has escalated after 10 asylum seekers sewed their lips together.

It is understood the protest started as prayer vigil for another detainee at the Villawood detention centre in Sydney who committed suicide earlier this week.

The Greens say it is clear the immigration system is making people mentally ill and it needs to be changed, while the Opposition says the Government's failure to prevent asylum seekers reaching Australia is contributing to the problem.

The Government says the protests are distressing, but will not have any impact on the outcome of visa applications.

Mr Manne says the High Court's decision may ease the desperation evident in the protests.

"It will certainly give a far greater assurance to many hundreds of asylum seekers that they will now have access to ordinary and basic rules of fairness and have their decisions made according to law," he said.

"Our clients [on Christmas Island] will certainly welcome this news as an assurance that they will now have access to ordinary safeguards of Australian law on their cases, instead of a process where there have been seriously cutting of corners and systemic errors on these life-or-death matters."

Why Bother With Offshore Processing Now?

New Matilda
12 November 2010
By Daniel Ghezelbash and Mary Crock

It might not be unconstitutional but now that asylum seekers have access to the courts, the rationale for offshore processing has been seriously weakened, write Daniel Ghezelbash and Mary Crock

Yesterday's unanimous High Court decision to declare unlawful the treatment of two Tamil asylum seekers dealt a decisive blow to the offshore processing of boat people.

The decision has levelled the playing field by removing one of the most important features of the regime first established by the Howard government and continued under the Rudd and Gillard governments. While applicants who arrive by plane and seek protection on the Australian mainland have full access to the safeguards of Australia's legal system, those arriving by boat without authorisation are taken to Christmas Island and processed under an expedited system that lacks the safeguards of the onshore system.

As of yesterday, this has changed. Regardless of their mode of entry into Australia, all asylum seekers will now have access to redress in the courts if the person assessing their claim makes an error of law or breaches the rules of procedural fairness.

Successive governments attempted to put the processing of asylum seekers arriving by boat beyond the reach of Australian courts by creating offshore detention centres -- first on Nauru and now on Christmas Island. Refugee status determination appeals from these offshore centres have been outsourced to private bodies, currently to the dubiously named "Wizard People Pty Ltd".

Christmas Island is one of many offshore territories excised from Australia's migration zone. Asylum seekers housed there cannot make valid visa applications unless the Minister decides personally to allow this. The government's reasoning went as follows: status determination processes are being carried out by non-government actors in a legislative vacuum -- outside Australia's written law. Therefore these processes can be carried out free both from any duty to act fairly and from oversight by the Australian courts. The High Court was unanimous yesterday in finding against the government on both counts.

The judgment handed down yesterday concerned two Tamil asylum seekers known as M61 and M69 who arrived by boat in 2009. Both claimed refugee status on the basis that they faced persecution from the Sri Lankan army and paramilitary groups because of their alleged support for the Tamil Tigers.

The Court found that the review officer breached the rules of procedural fairness by not informing the men of information about Sri Lanka used in making the respective decisions. It also found that the review officer made an error of law by failing to consider all the claims put forward by the men. For example, there was a failure to address M61's claim that he would be at risk if returned to Sri Lanka on account of his membership of a particular social group: "Tamils who are perceived to be wealthy".

An interesting aspect of the High Court's ruling is that is relatively short and rather careful in its discussion of the law -- which will make it difficult for the government to introduce easy remedial legislation. Its effect is to open the way for every offshore asylum seeker whose claims are rejected to seek review in the High Court. Anecdotal accounts suggest that it is common practice not to notify applicants of adverse information about the state of affairs in their home country. In practical terms, it is likely that many cases will need to be re-determined. With a backlog of thousands of cases in the High Court, this is not good news for the Government.

This decision may also mean, interestingly, that people processed on Christmas Island may have broader rights to fair treatment than do onshore applicants. This is because the Migration Act reduces the common law rules for onshore applicants who have no right to be informed of general country information that may be detrimental to their claim.

The implications of the decision for offshore refugee processing are serious. On one hand, the High Court rejected arguments that the scheme is unconstitutional. So, offshore processing can continue.

However, the underlying motive for offshore processing -- restricting access to the Australian legal system -- has been seriously undermined. If common sense were to prevail, the Government should seriously consider abandoning offshore processing , closing down the detention centre on Christmas Island and processing all asylum seekers onshore under a single system. As the record number of boat arrivals indicates, offshore processing has clearly not been an effective deterrent in reducing unauthorised arrivals. It has always been costly and inefficient. It is now more difficult to justify than ever.

Building yet another detention centre in East Timor is no solution -- contrary to Chris Bowen's statement yesterday that the decision has no significant implications for regional processing. As long as the Australian government is involved in any aspect of the decision process in asylum claims, the plain message from the High Court is that it will not be easily dislodged from its constitutionally entrenched role as guardian of justice and the rule of law.

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