Welcome to Eureka Street

back to site

Asylum seeker Ali's successful day in court


Former Immigration Minister Scott Morrison

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 capping of visa grants was unlawful, and directed the Minister make a decision on the application by 21 July 2014.

The then Minister responded by using a previously rarely used regulation clause 866.226 – the national interest criterion.  Ali’s visa was refused on 17 July 2014 in ‘the national interest’ and this was explained that because he arrived by boat, he would not be granted a permanent protection visa.  This was consistent with the Government’s policy of never granting permanent residence to someone who arrived by boat, despite the finding by the RRT that Ali was a refugee.

However, Ali and his legal team did not give up.  They returned to the High Court and challenged this decision on 17 July 2014.  There were a number of very significant events between the refusal and today.  The most significant was the passing of the Migration and Maritime Powers (Resolving the Asylum Legacy caseload) Act on 16 December 2014.

This contentious Act reintroduced TPVs and purported to convert any previous application for a permanent protection visa into an application for a TPV.  A consequence was that holders of TPVs would never get permanent residence unless they were able to change their visa to the awkwardly named Safe haven Enterprise Visa (SHEV), and after 40 months, maybe they can apply for some other visa, but never a permanent protection visa.

The Minister’s lawyers argued that even if the decision of 17 July to refuse ‘on the national interest’ were invalid, then the new law applied and all Ali would get would be a TPV.  The High Court, in a unanimous decision, disagreed.  The Minister was ordered by a peremptory writ to grant a permanent protection visa to Ali.

Such a result is almost unheard of from the Courts because the courts just do not order that a visa be granted, but instead instruct the decision maker to remake the decision lawfully.  However the Court was not prepared to let the Minister once again prevent Ali from getting his permanent visa.  The Court stated that the Minister’s decision of 17 July was ‘legally wrong’ and ‘the Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff’s (Ali’s) application.

As yet it is not clear how many other refugees would benefit from the decision but it will be closely studied in Canberra and by lawyers and refugees.   It may be too early to hope that the Government will rethink the unwarranted harshness of the TPV and the harm it will cause for refugees, but this decision will not be the last challenge to the TPV – the cruel visa we cannot justify. 

Kerry Murphy profile photoKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

Topic tags: Kerry Murphy, asylum seekers, High Court, TPVs, S297, Pakistani Hazaras, Scott Morrison, Peter Dutton



submit a comment

Existing comments

Thanks Kerry. It's good to see that the High Court was not a dead end for Ali. Here's hoping for a better future for the rule of law being applied by parliament and the courts to those reaching our shores seeking asylum.

Frank Brennan SJ | 13 February 2015  

Thanks, Kerry. One up but how many to go. Isn't it passing strange that those who flee to us for refuge need to go to the High Court (in Ali's case more than once) to receive their due.

Gerard Walsh | 13 February 2015  

I cannot help but feel very, very relieved and thankful that The High Court were prepared to act to ensure their decision could not be hijacked so that 'Ali' could at last have justice. I so hope this decision can be extended to apply to other asylum seekers. Thank you for this article.

Dorothy Panelli | 13 February 2015  

It is wonderful to see that in one case, at least, the High Court has been able to bring this to a just solution and give others some hope. Thanks for the many hours of work to all concerned.

patricia malone rsj | 13 February 2015  

A wonderful result! in both meanings of the word, 'wonderful'. How many more Ali's have to go through the regulatory mill to win a place of resettlement in Australia after fleeing their nation in which they were at grave risk of arbitrary killing? In neighbouring Afghanistan, Australia fought against the Taliban, who remain a threat to the Hazaras and all of the Shia minority. Now we participate in the fight against ISIS, another hellish militarist group from which millions of refugees are fleeing into the surrounding small nations. And yet our Federal Government, of both sides of politics, places far more effort in creating series of obstacles to minimise refugee re-settlement in Australia than working towards a much-needed new international agreement on resolving the world-wide refugee crisis.

Ian Fraser | 13 February 2015  

Mr Murphy. Would you be kind enough to explain the difference between 'unlawful" and "illegal". Your article attaches some criticism to a conservative minister using the term "illegal" but accepts a socialist minister using the term "unlawful". In day to day language both mean the same and are undistinguished from each other in the Concise Oxford English Dictionary. Is it possible to have an unlawful action which is not illegal or vice-versa? Is the position you take in relation to the word "illegal" related to the lack of a specific written law. If that is the distinction would not the use of "unlawful" to describe the same event also be erroneous? I know nothing of these things and genuinely seek understanding.

john frawley | 13 February 2015  

Thank you Kerry and Team! How heartening to read a good news story for at least one person held in limbo for so long. May you have many more successful outcomes for long suffering refugees!

Cecilia Merrigan | 13 February 2015  

Presumably Mr Morrison will receive no further rebuke because he was acting according to government policy (if not the law), and criticism of him could be seen as criticism of the policy. (And he has changed portfolio since.)

Brendan Roberts | 13 February 2015  

It simply is odd to this American that there is a law against refugees arriving by boat considering that is exactly how Australia came to be Australia by refugees arriving by boat. It is funny how children of immigrants try so hard to deny others the possibility of becoming immigrants. Reason and logic have failed in this case it would appear. Please see to it that true justice is the rule rather than the exemption. God be with you all.

Papa Smurf | 13 February 2015  

Most of the problems for Refugees arise from two immature concepts; Sovereign States, and Sovereign Borders. Being a Sovereign State seems to imply that the government can mistreat and persecute its citizens with impunity, giving rise to millions of refugees. Sovereign borders seems to imply that refugees fleeing persecution can be denied access to protection without assessing their claims. If not actually implied, it is just a step short of saying, 'We will determine what information will be given to our citizens, and the time and manner in which it is given.'

Robert Liddy | 13 February 2015  

Excellent outcome! Let's hope there are more like it. This stupidity has to stop! We believe in a compassionate Australia even if this Govt doesn't!

Hugh Murdoch | 13 February 2015  

it was Australia who uncovered the Bali 9 plot. It was Australians who would suffer most if the heroin had been smuggled into Australia, so it should be Australia's Courts who should determine the punishment that should be applied. Perhaps this is the argument that should be sent to Indonesia - , to send the culprits to Australia for trial and punishment.

Robert Liddy | 15 February 2015  

ri http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCA/2002/1009.html?query=al%20mas “60 In any event, while it is literally correct to describe the applicant as an "unlawful" entrant and an "unlawful non-citizen" that is not a complete description of his position. The nomenclature adopted under the Act provides for the description of persons as "uinlawful non-citizens" because they arrived in Australia without a visa. This does not fully explain their status in Australian law as such persons are on-shore applicants for protection visas on the basis that they are refugees under the Refugees Convention. 61 The Refugees Convention is a part of conventional international law that has been given legislative effect in Australia: see ss 36 and 65 of the Act. It has always been fundamental to the operation of the Refugees Convention that many applicants for refugee status will, of necessity, have left their countries of nationality unlawfully and therefore, of necessity, will have entered the country in which they seek asylum unlawfully. Jews seeking refuge from war-torn Europe, Tutsis seeking refuge from Rwanda, Kurds seeking refuge from Iraq, Hazaras seeking refuge from the Taliban in Afghanistan and many others, may also be called "unlawful non-citizens" in the countries in which they seek asylum. Such a description, however, conceals, rather than reveals, their lawful entitlement under conventional international law since the early 1950's (which has been enacted into Australian law) to claim refugee status as persons who are "unlawfully" in the country in which the asylum application is made. 62 The Refugees Convention implicitly requires that, generally, the signatory countries process applications for refugee status of on-shore applicants irrespective of the legality of their arrival, or continued presence, in that country: see Art 31. That right is not only conferred upon them under international law but is also recognised by the Act (see s 36) and the Migration Regulations 1994 (Cth) which do not require lawful arrival or presence as a criterion for a protection visa. If the position were otherwise many of the protection obligations undertaken by signatories to the Refugees Convention, including Australia, would be undermined and ultimately rendered nugatory. 63 Notwithstanding that the applicant is an "unlawful non-citizen" under the Act who entered Australia unlawfully and has had his application for a protection visa refused, in making that application he was exercising a "right" conferred upon him under Australian law.”

Marilyn | 15 February 2015  

So let’s wander off to the High Court appeal which became Behrooz, Al Kateb and Al Khafaji and have a look at the meaning of “unlawful”. GUMMOW J: What is the baggage of the word “unlawful”? MR BENNETT: Your Honour, none. It is a word used in a definition provisihttp://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/456.html?query=behroozon, it is simply a defined phrase. It is not a phrase which necessarily involves the commission of a criminal offence. http://www.austlii.edu.au/cgi-bin/sinodisp/au/other/HCATrans/2003/458.html?query=behrooz “GUMMOW J: What is the force of the word “unlawful”? MR BENNETT: It is merely a word which is used in a definition section, your Honour. GLEESON CJ: Does it mean without lawful permission? MR BENNETT: Yes, that is perhaps the best way of paraphrasing - - - GUMMOW J: But in the Austinian sense that is meaningless, is it not? MR BENNETT: Yes, your Honour. The draftsperson of the Act is not necessarily taken to be familiar with the - - - GUMMOW J: Well, perhaps they ought to be.” Now there is no excuse to torture innocent people just because of how they got here.

Marilyn | 15 February 2015  

This is a great outcome for Ali, I note the efforts Kerry Murphy has made to seek justice for these unfortunate asylum seekers. I am currently in despair of both major political parties, the sheer cruelty and inhumane treatment of these boat people and their children is a national disgrace. Professor Jillian Triggs who has advocated on behalf of these children has been rudely ignored, by politicians who claim to be Christian. The current policy is costing millions and the physical conditions on Naruu and Mannus Island are a disgrace. These places are breeding grounds for mental and physical health destruction. I am ashamed to be Australian at present. Maybe our government should Ministers should all spend a few weeks there to see for themselves what a hell house these places are! Margaret M.Coffey

Margaret m. Coffey | 15 February 2015  

It is good that high court instruct the decision maker to remake the decision lawfully. How sad that Ali who is struggling for his safe life has to go with all this difficulties. let's not forget, this all happened in Multicultural Australia.

Sudarshan | 16 February 2015  

So what does all your assiduous research really mean Marilyn? It seems that anyone can rock up to Australia and illegally enter it without a visa, claim they are fleeing persecution and be granted a TPV. In so doing they can then be released into the community for three years while their claims are being processed. During this time they have the right to work, claim Centrelink benefits and be eligible for Rent Assistance, Family Tax Benefit, Child Care Benefit, Medicare, Early Health Assessment and Intervention program, torture and trauma counselling and English classes. And if after three years their claims for asylum are rejected they have a large and powerful asylum seeker lobby/industry ready to fight their case all the way to the High court to reverse such a decision. Alternatively, they can simply disappear into the black economy and work illegally, hoping they are not discovered till some years down the track when an amnesty for illegal immigrants is declared. Moreover, the fleeing-persecution-claim is so wide you could drive a truck through it. On one hand it covers those who belong to an ethnic/racial/religious group of whom some members have been subjected to sporadic persecution and have been able to make a leisurely departure from their homeland, remain in a country like Indonesia, Malaysia or India for months on end, before heading for Australia. At the other hand are human rights activists who face torture/death from opposing a repressive regime and refugees who may have been fleeing to a border just ahead of murderous militias who may well kill them if they catch them. And while there is usually little doubt about the latter’s claims of persecution, the same cannot be said for most of the former, many of whom have found to be merely self-selecting economic migrants.

Dennis | 17 February 2015  

Wait a minute! If the High Court has found that the Minister acted unlawfully, does that make him illegal?

Ian Law | 17 February 2015  

Wow. It is great to see that fighting the good fight is still worthwhile in this country. Too often we see law makers try to subvert the courts and it is vital they push back

Darren | 17 February 2015  

Thank you Kerry, it is such a relief to hear that their are some Australian Laws that will uphold human rights. It's been easy to be bogged down in the generally misery associated with the plight of the asylum seeker. I'm now looking forward to seeing this precedent afford positive change to those already in detention and others still arriving who need our help.

Lauren | 17 February 2015  

Thank you Kerry. Keep them on their toes and the process in the public eye. Good to see there is still something beyond the politics of fear happening out there

Nola Randall-Mohk | 18 February 2015  

Hopefully we will now see many others granted a permanent visa. Even before Ali in 2012 there were several hundred people found to have met the requirements to be granted a permanent visa. Most of them were granted visas, but around 100 hadn't had their visas granted when the new government came into power. Those people have been expecting a visa since mid 2012.....it's criminal what this government has done.

Hopeful | 19 February 2015  

Thank you Kerry and Team! How heartening to read a good news story for at least one person held in limbo for so long. May you have many more successful outcomes for long suffering refugees!

zarialay | 19 February 2015  

Similar Articles

The financial crisis the Government wants us to have

  • Colin Long
  • 09 February 2015

The Coalition Government falsely claims that Medicare co-payments and cuts to welfare and publicly funded institutions such as the CSIRO and the ABC are necessary to 'fix Labor's mess'. There are indeed structural problems with the economy, but essentially the plan is to strip the public sector by cutting universal access to a range of services that also includes tertiary education, to create a dominant free market that marginalises Australians on low incomes.


Nice guy Jokowi a death penalty strong man

  • Pat Walsh
  • 04 February 2015

The execution of Andrew Chan and Myuran Sukumaran is expected to take place on Nusakembangan, a prison island off Central Java. Visitors there are greeted by a sign which translates: 'They are not criminals, just lost people, and it is never too late to repent'. To be executed after you repent, however, is certainly too late. It also diminishes Indonesia. But let’s not write Indonesia off.