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Asylum seeker Ali's successful day in court

  • 13 February 2015

Once again, former Immigration Minister Scott Morrison's ruthless determination to prevent refugees arriving by boat from getting permanent residence has been successfully challenged.  

On Wednesday, the High Court ordered current Minister for Immigration Peter Dutton to grant a permanent protection visa to a Pakistani Hazara ‘S297’. This is the second win Mr ‘S297’ has had over the Minister in a  year.  We shall give him a name ‘Ali’, not his real name, but more human than the number.

Briefly the background is that Ali arrived on a boat in May 2012.  He was detained and then labelled an ‘offshore entry person’.  As such, he could not make a protection visa application unless the Minister personally intervened.  The then Minister allowed him to apply in September 2012 but a case officer refused his case.  On review, the Refugee Review Tribunal (RRT) found Ali to be a refugee in May 2013.

Such a finding is not surprising, given the targeting of Shia Hazaras in Pakistan by the Pakistani Taliban and other militant groups – often just because they are Shia, not Sunni.  Only last week a Shia mosque was bombed in Pakistan, and there are a number of accounts of buses being stopped in Pakistan by militants and the Shia being taken off and then executed.

After apparently winning his case in May 2013, nothing happened for Ali until 2014 apart from him no longer being an offshore entry person but becoming an ‘unlawful maritime arrival (UMA) in June 2013.  With the election of the Coalition in September 2013, the new Minister incorrectly referred to people such as Ali as ‘illegal maritime arrivals’.  This was not a mere slip of the Ministerial tongue, but part of a deliberate campaign of vilification of refugees arriving by boat that goes back to the Howard era for the Coalition.  

Several attempts to reintroduce Temporary Protection Visas (TPVs) were unsuccessful after the Senate disallowed the regulations so the then Minister determined that the number of protection visas would be limited in a year, thereby putting all unfinished cases on hold.

This was the subject of the first High Court Case for Ali, S297 v MIBP [HCA] 24 on 20 June 2014. The High Court held that the Minister could not limit the number of protection visas he was to grant because the Howard era amendment of s65A required protection visas be decided in 90 days.  The High Court held the