High Court backs ministerial power over asylum seekers


Scott MorrisonOver 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 asylum seekers who arrived from 19 July, PNG agreed to assess cases and, later, agreed to limited resettlement.

The plaintiff argued that s198AB and related sections were constitutionally invalid and that the ministerial designation of PNG as a regional processing country was also invalid. They argued there had to be an element of proportionality in interpreting the validity of the laws.

The plaintiffs lost on all their arguments and, in what was a short 15-page judgment, the High Court upheld the validity of the relevant sections and the ministerial declaration.

The effect of the decision is that the Iranian asylum seeker on Manus Island must rely on the PNG process in order to gain the protection he is claiming. This protection has been under further scrutiny in recent Senate Estimates hearings where a number of those making submissions and appearing before the committee argued that the effective care, supervision and control of the asylum seekers was by Australia, not PNG.

The High Court avoided entry into this debate in the judgement, but the responsibility, and potential liability of the Australian Government when it effectively seeks to subcontract its international obligations to poor neighbours, is a far from settled debate. The unsuitability of Manus Island as a regional processing centre has been argued not just by refugee advocates and specialist academics, but by the UNHCR.

A significant concern raised by UNHCR in its several reports on visits to Manus Island is that there is a 'return-orientated environment' rather than one with a focus on 'identifying and protecting refugees and other persons in need of international protection'.

While the protection of refugees and the provision of timely and adequate solutions for them should be among our primary aims, we know that this requires strong political will and leadership. The debates and court cases will continue, but, sadly for the plaintiff in this case, uncertainty and indifference is what we have to offer.

Kerry MurphyKerry Murphy is a partner with the specialist immigration law firm D'Ambra Murphy Lawyers. He is a student of Arabic, former Jesuit Refugee Service coordinator, teaches at ANU, an IARC ambassador, and was recognised by AFR best lawyers survey as one of Australia's top immigration lawyers.

Topic tags: Kerry Murphy, High Court, asylum seekers, Malaysia solution, PNG, Manus Island



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Another article supporting the current government and pointing out the failings of the Gillard/Rudd disaster. And hello!! Not single comment before midday! Must be a big crisis in the ranks of the usual critics.

John Frawley | 20 June 2014  

“… the protection of refugees … should be among our primary concerns,” notes Kerry Murphy, and I couldn’t agree more, provided we’re talking about genuine refugees and not merely self-selecting economic migrants trying to illegally force their way into Australia. As I’ve noted in other ES posts perhaps 90% fall into the latter category, according to ex-foreign minister Bob Carr. But what of the 10% or so of asylum-seekers who are truly fleeing some form of political, ethnic or religious persecution? Well, I suppose we have to let them in, even though far more deserving refugees are rotting in refugee camps elsewhere who’ve lost everything and should be given preference. But troubling questions remain, like why do they want to come all the way to Australia? Persecuted Sri Lankan Tamils can easily head for Tamil Nadu directly opposite in India 100kms away where 60 million Tamils already live. And considering that most are from Islamic countries and that they reside in such Islamic countries as Malaysia and Indonesia before trying to enter Australia why don’t they stay there? The $30,000 or so that they have gathered to pay people smugglers to get into Australia would be more than enough for them to establish some small business and resettle in these countries where business and living costs are a fraction of what they are in Australia. But then perhaps my question is a trifle disingenuous. We all know why they want to come to Australia. They seek citizenship in a stable, peaceful prosperous country very different from where they come from. That’s a perfectly understandable aim. But that doesn’t qualify them as refugees. Let’s keep our refugee program for the millions of homeless refugees who really need our help! . .

dennis | 20 June 2014  

Dennis, if people don't self select that means they are slaves. Why do you use such language about humans who are suffering?

Marilyn | 22 June 2014  

Yes Marilyn, the right to select or choose is certainly denied slaves. But surely choice must be exercised in a responsible and law-abiding manner. Illegally entering another country without going through its normal and legitimate immigration procedures is not. It’s like someone “selecting” to force their way into your home and staying there because they think your house is better than their’s. And when you try to eject them your neighbours gang up on you and accuse you of lacking compassion – and racism if your uninvited guest is racially different from you! Moreover, .Australia’s asylum-seekers certainly have had far more choice than the 2.5 million Syrian refugees rotting in refugee camps in Jordan, Lebanon and Turkey. They’ve been forced from their homes by warfare, starvation and murderous ISIS etc militia. They live in tents or sometimes dingy cramped rooms in places like Amman. They subsist from the pittance their children earn from selling flowers on the streets all day or by doing other menial jobs. They can of course “select” to return to Syria to God knows what fate. But “our” asylum-seekers can return to their own countries to their homes and families – airfares paid by Australia (plus “resettlement” money) if they decide that trying to force their way into Australia wasn’t such a good idea after all. Who therefore should we be helping? Imagine if even half the $12 billion spent on asylum-seekers since 2008 had been used to aid and resettle the Syrian refugees elsewhere, including Australia. How many thousands would that have helped? The moral confusion of the AS lobby never ceases to amaze.

dennis | 24 June 2014  

Dennis, there is no such thing as orderly seeking asylum, people all over the world do it when they can and by whatever means they can. How they do that, who they pay or the transport they use has zero to do with anything and the fact that we squander billions to jail them is our fault, not theirs.

Marilyn | 24 June 2014  

Yes Marilyn, for many genuine refugees asylum-seeking is very rushed and chaotic, as the Syrian refugees show. They had to suddenly leave their often-destroyed homes to avoid the next barrel bomb and starvation; then flee with their children and a few pathetic possessions across scorching deserts to safety in Jordan and Lebanon. But that hardly describes the departures of asylum-seekers coming to Australia. They have had many months if not years to plan and raise money for their trips, before leaving for Malaysia, Indonesia etc, then waiting months for their trip to Australia via people smugglers. All very organized, not rushed and chaotic. And yes I do recognize asylum-seekers’ suffering. They’ve perhaps sold their possessions/property and/or borrowed maybe $30,000 from friends/family, embarked on a dangerous sea journey in cramped leaky boats with 1% chance of drowning enroute; have spent months in detention on arrival and now could end up in PNG or Cambodia instead of Australia. They’ve “bet the farm” to get here and may have lost. They will then have to return home to disappointed families and maybe angry lenders to repay. Yes their misery in understandable. But they chose to make this trip, unlike most Syrian refugees who were forced leave their homes..

Dennis | 26 June 2014  

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