The Full Bench of the High Court handed down a unanimous decision today that has the potential to completely change how boat-borne asylum seekers have their claims processed. In this landmark ruling, the Court found that two Sri Lankan asylum seekers were denied ‘procedural fairness’, because – being incarcerated on Christmas Island – they had no access to the Australian court system.
See, that’s something not many people know, and no one talks about. If you walk off a plane and claim asylum, you are released into the community, assessed by the Refugee Review Tribunal, and have access to Australian courts to appeal an unfavourable ruling. If you come via boat, you get a ‘review’ process. That process looks like a court, but is not bound by Australian law. If the bureaucrats in charge of that deny your claim, your only hope is to pray that the Immigration Minister considers your case personally. Otherwise, you’ll be deported.
This is the ‘compassionate’ system put in place by the Howard government on Christmas Island and Nauru, and continued by the Rudd and Gillard governments even after the closure of the Nauru centre. In one of the most shameless and inhumane pieces of legislation passed by the Howard Government, Christmas Island, Ashmore Reef and other destinations commonly sought by asylum seekers were ‘excised’ from Australian jurisdiction under the Immigration Act. This made it possible to deny full access to Australian law, in much the same way the US prevented suspected ‘terrorists’ from seeking legal redress in the courts. Although the Rudd government introduced an Independent Merits Review Process in 2008 so that those whose claims were denied once could appeal, the reality is that outside contractors hold the fate of asylum seekers in their hands – contractors who are not required to have any experience in immigration law, and who are accountable only to the Minister.
The High Court found today that this system is completely unfair, that it denies the rights of boat-borne asylum seekers the right to a fair hearing under Australian law. It ruled that all asylum seekers were bound by the Migration Act and other Australian laws, regardless of their mode of travel. This means that the government now derives no benefit from funnelling asylum seekers through offshore processing – they can no longer do an end run around the law. As law firm Allens Arthur Robinson, the legal firm who handled the case on behalf of the Refugee and Immigration Legal Centre noted, the decision ‘has important legal ramifications’.
Scott Morrison, the Coalition’s Shadow Immigration spokesperson, seems not to understand this. Shaking his head in disbelief, he fronted the media to tell them that this was a ‘terrible’ decision, ‘the best day for people smugglers since the reappointment of the Gillard government’. This was ‘proof’ of Labor’s ‘policy failure of cack-handedness’, he said, and added that the government should now embrace the Nauru solution. The High Court’s ruling did not apply to Nauru, he said. I’d like to think this was some kind of political strategy, but in reality, I think he just doesn’t get it. Whether asylum seekers come to Tullamarine Airport, Christmas Island, or Nauru, if they claim asylum from Australia they must now have access to the Australian court system.
Immigration Minister Chris Bowen said he was getting legal advice from the Solicitor-General, and would make recommendations to Cabinet within a few weeks. He seemed keen to create the impression that the ruling did not affect the policy of offshore detention, or the excision of Australian territories from the Migration Act. To say he looked like he didn’t believe that himself is an understatement. He was extremely nervous, and not just because David Marr was standing behind his shoulder looking like the Ghost of Righteous Fury Vindicated. (Read the excellent Dark Victory, which he co-wrote with Marian Wilkinson, if you haven’t yet heard his views on Australia’s refugee policy.) At this time, 145 people have been denied refugee status. That’s a potential 145 appeals.
Unless the government moves to introduce some particularly dodgy legislation, the implications of this High Court decision are far-reaching. It may not end offshore detention – there are certain political benefits, disgusting as that may be, to having refugees ‘out of sight and out of mind’. The recent xenophobic rabble-rousing over the proposed new centres at Northam and Inverbrackie prove that unpleasant point. At the very least, however, boat-borne asylum seekers should now have access to the court system, and would no longer be subject to the whims of the bureaucracy.
The Refugee and Immigration Legal Centre, who were the main drivers of this High Court case, have not said whether they plan further legal action. It would be interesting to see whether the High Court would rule that incarcerating those who come on boats, while letting those who arrive by plane walk around freely, was an illegal two-tier system. Certainly, there are no good reasons for assuming that a sea-borne refugee is a greater threat to the community.
In the meantime, no matter what parliamentarians might be saying to the media, there is no getting away from the fact that this decision could change how Australia handles refugee claims – and change it for the better.