High noon for Government refugee policy


View of Parliament from High CourtLast Thursday the High Court published a decision which not only overturns the interim temporary visa plans of the Government for refugees but also reminds Government that asylum seekers are not ‘outlaws’ and that immigration detention can only be for limited purposes. The decision is timely because the Minister is still negotiating his re-introduction of the Temporary Protection Visa through the Senate and he has also flagged the partial winding back of the harsh offshore processing policy reintroduced under Labor.

The case, Plaintiff S4 v Minster for Immigration and Border Protection [2014] HCA 34 considered the case of a stateless asylum seeker who spent two years in detention.

On arrival in late 2011 at Christmas Island, the applicant was an ‘excised offshore person’, a term replaced in June 2013 with ‘unauthorised maritime arrival’. Such a linguistically unpleasant description has serious legal implications because if you were an ‘excised offshore person’, or an ‘unauthorised maritime arrival’, you are prevented from lodging any visa application onshore by s46A unless the Minister personally intervenes and lets you make the application.

Despite being assessed as meeting the refugee definition (grant ready was the term used by Immigration)  the refugee in the case was not granted a protection visa but he was released from detention after the grant of two temporary visas.  The first was a temporary safe haven visa (TSHV) for seven days, and a temporary humanitarian concern visa (THCV) for three years.

The grant of the TSHV meant that a legislative bar then prevented the applicant from applying for a protection visa. Section 91K prevents further applications for any visa onshore unless the Minister personally intervenes and permits the applications.   

The High Court held that immigration detention can only be done for three purposes:

1. removal from Australia

2. investigating if the person can remain in Australia

3. determining whether to permit a valid application for a visa

Here, it was the third category as Plaintiff S4’s case as a refugee was being considered.  The Court held that in those circumstances, it was not lawful for the Minister then to grant different visas under another section (s195A) which effectively prevented an applicant from making a protection visa application. This was because the only reason he was lawfully detained was the assessment under s46A whether this refugee could even make that very application.

The High Court also held that the duration of detention must be ‘fixed by reference to what is both necessary and incidental to the execution of those powers and the fulfilment of those purposes. (para 29)’ and that such a decision had to be ‘undertaken and completed as soon as reasonably practicable’ (para 34).  Detention cannot be ‘at the unconstrained discretion of the Executive.’

Previously the High Court held in 2004 in the Al Kateb Case that detention could be indefinite where there was still the possibility of arranging someone’s removal from Australia. Whilst Plaintiff S4 does not seem to go as far as overturning the harsh effect of Al Kateb, it may reel back the harshness and certainly reminds the Government that detention can only be for a purpose based on the Migration Act, and that purpose cannot be political.

In the judgment the High Court referred back to the old case of Chu Kheng Lim (1992), about the detention of Cambodians from 1989. The judges remind us all that a non-citizen in the country, whether lawfully or not, ‘is not an outlaw.’ This is relevant because the Government has insisted on demonising people by incorrectly referring to asylum seekers arriving without a visa as ‘illegals’. 

As recently as the day before the judgment, the Minister in his speech to the National Press Club continued his demonisation of asylum seekers arriving by boat by trying to link the naughty ‘queue jumping illegals’ to the horrid ‘dole bludgers’. He stated:

Refugee resettlement is not an economic upgrade programme. It is about providing protection from persecution. If this remains simply the responsibility of first world nations then not only will the number of places remain limited but the programme itself will become a pull factor for people smuggling.

The attraction of first world economies and first world welfare is understandably strong.

The refugee convention and refugee resettlement is supposed to be for asylum seekers not Centrelink seekers.

This misses the obvious facts that, firstly, Australia cannot subcontract its international obligations to poor countries like Cambodia, Nauru or Papua New Guinea. Secondly, refugees are entitled to and want to get on with their lives, and the vast majority of refugees and asylum seekers are in developing countries and have no access to durable solutions. So Lebanon, for example, has nearly 850,000 refugees (mostly Syrians) in a population of only 4.5 million. Even Italy has received over 60,000 people by boat just this year. Such facts put the irrational fears of being swamped in Australia in perspective.

Putting the situation of asylum seekers into human and global perspectives is something lacking in the toxic political discourse in Australia. Advocates and commentators on each side are solidly entrenched in their positions, rather like the Western Front 100 years ago. Progress in addressing complex issues such as the irregular movement of refugees around the world is not achieved by three word slogans and demonising and punishing the people. There may not be simple solutions to complex issues such as how to reduce the risk of travel by boat without punishing the refugees. The High Court reminds us there are people involved and they are not ‘outlaws’.  

Kerry Murphy profile photoKerry 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.

Image: Shutterstock



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Existing comments

Australia could reduce the risk of travel by boat by letting the owners of boats that make it to Australia take the boats home again. This would give them incentive to maintain the boats in a safe condition.
Gavan | 15 September 2014

Kerry, thanks for throwing light on the murky area of the detention of asylum seekers and the role politics plays in sustaining the system. A good reminder also to both major political parties that 'Australia cannot subcontract its international obligations to poor countries like Cambodia, Nauru or Papua New Guinea.,
Maureen O'Brien | 15 September 2014

I don't know why Kerry Murphy is still worried about Asylum Seekers. No more boats. Over 4000 persecuted Christians will be accepted as genuine refugees in Australia. It looks that only lawyers who dealt with asylum seekers in the past, seems to be concerned about losing that extra income.
Ron Cini | 15 September 2014

Tell me Ron, why a 'persecuted Christian' is more worthy of Australian support than a persecuted muslim, buddhist, jew, or atheist?
Ginger Meggs | 15 September 2014

Where are the 4000 persecuted Christians? and why only Christians?
bernie introna | 15 September 2014

To Ginger and Bernie. Because persecuted Christians are genuine refugees, They do not have the money to pay people smugglers. Ron Cini
Ron Cini | 16 September 2014

Ron Cini simplistically believes that the world as run out of refugees because there are few here.
Marilyn | 16 September 2014

Ron, I reject your attack that I am only writing because I fear losing money, That is unfounded and a cheap shot. If I wanted to make lots of money as a lawyer I would not be doing refugee cases. Also I have a number of Christians from Iraq and Syria seeking asylum, mostly they arrived by plane, not by boat. A refugee can be rich, middle class or poor - poverty is irrelevant to the refugee definition. The key issue is our attitude towards people seeking asylum, and why it is seen legitimate to demonise a group of people fleeing persecution simply because of how they arrive.
Kerry Murphy | 16 September 2014

Well said Kerry, and thank you for continuing to contribute such thoughtful, insightful and empathetic articles. You are a voice of calm reason in these terrible times. Words should not be used as weapons - 'illegals' 'queue jumpers' and the like are used by the government to deliberately mislead and misinform. Surely people can see through this nasty rhetoric? Rather than demonising them, Ron Cini should try meeting with refugees in his area and hearing from them directly what prompted them to make their perilous journeys. I have been fortunate to meet refugees from Sri Lanka, Iran, Iraq, Afghanistan and Syria - I am humbled by their strength, fortitude and resilience. Ron - please get out there and engage with your refugee community. It will make you a much kinder person. Kerry - thank you for all that you do.
Ali | 16 September 2014

Refugees are people seeking refuge outside their own country for a variety of reasons. Once they have arrived they are no longer refugees but newcomers or some similar label.
Bruce Fraser | 16 September 2014

Kerry Murphy may be justified in taking offense at Ron Cini’s comment questioning his advocacy work for asylum-seekers. Perhaps Kerry’s work for asylum-seekers may be largely pro-bonorish, done for idealistic rather than pecuniary reasons. But Ron’s comments do raise questions about what drives the asylum-seeker industry. While the AS lobby may be motivated by idealistic concerns, however confused and hypocritical at times, can the same be said for the AS industry? Lawyers. and migration agents are just two groups who would seem to benefit from the ceaseless legal activity waged on behalf of asylum-seekers. Of the $12 billion that asylum-seekers cost Australia between 2008-2013, how much went on legal expenses and payments to lawyers and migration agents representing or working for asylum-seekers? Last March Minister Morrison removed free legal advice for asylum-seekers who arrived without visas by sea or air, saving $100 million. And in the 2011-12 federal budget, $108 million was provided by the government to cover costs for asylum-seeker appeals. These bits of information indicate that some detailed probe of the asylum-seeker industry and who gets what, when, where and how could be very enlightening. The same applies to the Aboriginal industry where vast sums seem to have been squandered and “mis-used” since the 1960s.
Dennis | 22 September 2014

Why should we look at the cost of the so-called refugee industry when we clearly are not worried about the war-mongering industry. Australia is supposedly in a debt crisis (not!) but yet we find easy millions to leap into far away wars. What hypocrisy. It is those violent conflicts that are the main drivers for the refugee industry.
Name | 01 October 2014


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