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High Court backs ministerial power over asylum seekers

  • 20 June 2014

Over the last few years the High Court has made several decisions which found the Government wanting when making decisions regarding asylum seekers. Inevitably the cases are decided on the basis of whether a power was correctly applied or interpreted. Sometimes the results favoured applicants and asylum seekers, sometimes they upheld the position of the Government.

Two decisions which had a major impact in this area were the M61 Case in 2010 and the M70 case in 2011. M61 essentially found that when asylum seekers are detained and the Government is considering whether to allow them to apply for refugee status onshore, the Government must comply with the provisions of the Migration Act and the relevant decisions of the Courts.

In M61 the Government unsuccessfully argued that the process of considering whether to allow a refugee application to be made was not reviewable in the courts. The result was that many cases had to be reconsidered, and a significant number of asylum seekers were successful on remittal when a closer attention to the rule of law was applied.

In M70, the High Court ruled on the interpretations of the old s198A, the power to direct the transfer of people to a third country such as Malaysia. The Labor Government had entered an agreement with Malaysia to transfer 800 asylum seekers to Malaysia in return for the resettlement of 4000 refugees from Malaysia over four years. The Court held that this agreement failed in built-in protections to assess the adherence to human rights principles that were found in s198A — a section inserted during the time of the Howard Government in 2001.

The solution for the Government was to repeal s198A and insert a new provision, s198AB, which effectively only required the minister to think it is in the national interest to send asylum seekers to the third country, and for that country to provide assurances they will not refoule (force back) the asylum seekers to their home country and will consider a refugee claim.

On 18 June 2014, in M156 v MIBP, the High Court held that this was a much simpler test to meet.

The plaintiff in M156 was an Iranian who arrived at Christmas Island on 23 July 2013. This was only four days after the new joint policy with Papua New Guinea of reinstalled Prime Minister Rudd was announced. In that policy, Australia declared PNG to be the country where it would send