Yesterday’s unanimous High Court decision to declare unlawful the treatment of two Tamil asylum seekers dealt a decisive blow to the offshore processing of boat people.
The decision has levelled the playing field by removing one of the most important features of the regime first established by the Howard government and continued under the Rudd and Gillard governments. While applicants who arrive by plane and seek protection on the Australian mainland have full access to the safeguards of Australia’s legal system, those arriving by boat without authorisation are taken to Christmas Island and processed under an expedited system that lacks the safeguards of the onshore system.
As of yesterday, this has changed. Regardless of their mode of entry into Australia, all asylum seekers will now have access to redress in the courts if the person assessing their claim makes an error of law or breaches the rules of procedural fairness.
Successive governments attempted to put the processing of asylum seekers arriving by boat beyond the reach of Australian courts by creating offshore detention centres — first on Nauru and now on Christmas Island. Refugee status determination appeals from these offshore centres have been outsourced to private bodies, currently to the dubiously named "Wizard People Pty Ltd".
Christmas Island is one of many offshore territories excised from Australia’s migration zone. Asylum seekers housed there cannot make valid visa applications unless the Minister decides personally to allow this. The government’s reasoning went as follows: status determination processes are being carried out by non-government actors in a legislative vacuum — outside Australia’s written law. Therefore these processes can be carried out free both from any duty to act fairly and from oversight by the Australian courts. The High Court was unanimous yesterday in finding against the government on both counts.
The judgment handed down yesterday concerned two Tamil asylum seekers known as M61 and M69 who arrived by boat in 2009. Both claimed refugee status on the basis that they faced persecution from the Sri Lankan army and paramilitary groups because of their alleged support for the Tamil Tigers.
The Court found that the review officer breached the rules of procedural fairness by not informing the men of information about Sri Lanka used in making the respective decisions. It also found that the review officer made an error of law by failing to consider all the claims put forward by the men. For example, there was a failure to address M61’s claim that he would be at risk if returned to Sri Lanka on account of his membership of a particular social group: "Tamils who are perceived to be wealthy".
An interesting aspect of the High Court’s ruling is that is relatively short and rather careful in its discussion of the law — which will make it difficult for the government to introduce easy remedial legislation. Its effect is to open the way for every offshore asylum seeker whose claims are rejected to seek review in the High Court. Anecdotal accounts suggest that it is common practice not to notify applicants of adverse information about the state of affairs in their home country. In practical terms, it is likely that many cases will need to be re-determined. With a backlog of thousands of cases in the High Court, this is not good news for the Government.
This decision may also mean, interestingly, that people processed on Christmas Island may have broader rights to fair treatment than do onshore applicants. This is because the Migration Act reduces the common law rules for onshore applicants who have no right to be informed of general country information that may be detrimental to their claim.
The implications of the decision for offshore refugee processing are serious. On one hand, the High Court rejected arguments that the scheme is unconstitutional. So, offshore processing can continue.
However, the underlying motive for offshore processing — restricting access to the Australian legal system — has been seriously undermined. If common sense were to prevail, the Government should seriously consider abandoning offshore processing , closing down the detention centre on Christmas Island and processing all asylum seekers onshore under a single system. As the record number of boat arrivals indicates, offshore processing has clearly not been an effective deterrent in reducing unauthorised arrivals. It has always been costly and inefficient. It is now more difficult to justify than ever.
Building yet another detention centre in East Timor is no solution — contrary to Chris Bowen’s statement yesterday that the decision has no significant implications for regional processing. As long as the Australian government is involved in any aspect of the decision process in asylum claims, the plain message from the High Court is that it will not be easily dislodged from its constitutionally entrenched role as guardian of justice and the rule of law.
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