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The High Court’s surrender to the Morrison-Dutton immigration detention regime

  • 24 June 2021
For almost thirty years, there has been a tussle between the courts and government in Australia over immigration detention. Alas, the High Court called a truce on that tussle yesterday with a 4-3 decision that was unprincipled and harsh.

In the past, whenever the High Court has set limits on what immigration officials and the minister can do, government has gone back to Parliament introducing increasingly complex legislation aimed at overcoming the court decisions, while acknowledging our international obligations. While maintaining the sovereignty of our borders and the control of our migration program, we Australians have long prided ourselves on being a good international citizen. We have voluntarily signed up to all the key international human rights conventions including the Refugee Convention and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Both these conventions oblige us not to ‘refoule’ or send back people from our shores to places of danger where they would face persecution, torture, or inhuman treatment.

On Wednesday, the High Court by a narrow margin of 4 to 3 agreed that the measures introduced by Scott Morrison when he was minister for Immigration passed muster. The case related to a Syrian man known as AJL20 who came to Australia as a child. He came from Lebanon travelling on a Syrian passport. He had been issued with a visa and was resident in the Australian community for nine years. In 2014, the minister cancelled his visa on the grounds that he no longer satisfied the character test. Those on temporary visas can have their visas cancelled by the minister if he judges them not to be of good character, even if they are not serving a prison term. Six days later AJL20 was taken into immigration detention. After almost three years in immigration detention, an immigration official determined on 25 August 2017 that the young man was ‘a person in respect of whom Australia has protection obligations’. But the minister’s delegate and the minister refused to take any action. As far as they were concerned, the young man would remain in detention until such time that departmental officials were able to remove him from Australia.

In September 2020, a Federal Court judge ruled that the ongoing detention was unlawful and ordered the release of AJL20 into the community. It was this decision which the government appealed to the High Court. The young man is now to