Shake-up looms for offshore processing after High Court ruling on Tamils
by Lauren Wilson, Joe Kelly
THE High Court has unanimously rejected the federal government's attempt to keep asylum-seekers on Christmas Island outside the protection of Australian law.
In a landmark ruling handed down by the full bench of the High Court this morning, the court determined that two Sri Lankan Tamil asylum-seekers, M61 and M69, had been denied procedural fairness.
The Coalition said the decision was a “disaster” which would appear to represent a “total collapse” of Labor's offshore processing system.
David Manne, executive director of the Refugee and Immigration Legal Centre, who co-ordinated the High Court challenge, said: “This is a great decision for the rule of law in this country.
“The court has unanimously ruled that these decisions on our clients' cases were unfair and unlawful because the government was not applying ordinary Australian laws on decisions on these life or death matters.”
Today's decision could allow failed asylum-seekers whose claims were processed on Christmas Island access to Australian courts to appeal.
“This decision applies to every asylum-seeker in Australia subject to the offshore processing regime,” Mr Manne said.
“ It means that not one single one of them should be removed without their consent until they have had their claims assessed through a new and lawful process in accordance with the High Court's ruling.”
The two Tamil asylum-seekers were refused refugee status and have been detained while they challenged the legality of Australia's offshore processing regime.
The High Court said the processing agency which determined that Australia did not have protection obligations to M61 and M69 made an error by treating the Migration Act and decided cases “as no more than guides to decision-making”.
It found that the asylum-seekers' forced detention had a direct impact on their rights.
The High Court did not uphold the asylum-seekers' broader challenge to the validity of the Migration Act.
Opposition foreign affairs spokeswoman Julie Bishop said the High Court judgment could open a “Pandora's box” of appeals in Australian courts.
“It would appear to represent a total collapse of Labor's offshore processing system.
“This decision of the High Court now throws into doubt the whole offshore processing system that Labor had introduced and essentially opens up a Pandora's box when it comes to the potential legal claims that could be made,” Ms Bishop told ABC television.
Ms Bishop said the only option left for the government was to “pick up the phone and talk to the President of Nauru”.
Ms Bishop said she understood the High Court challenge came about because of the government's decision to make the processing of asylum-seekers on Christmas Island a “non-statutory” process under amendments to the Migration Act in 2008.
“This represents a total failure on Labor's part on protecting Australia's borders,” she said.
Opposition immigration spokesman Scott Morrison also said Labor's border protection regime had completely collapsed as a result of the ruling.
He argued that every rejection decision could now be subject to a “flood” of appeals.
“The system that Labor put in place in the middle of 2008 when the unprecedented rate of illegal boat arrivals began has completely collapsed on the government today, throwing into further chaos the government's asylum policy and border protection regime,” he told The Australian Online.
“This was a system that Labor put in place that has been slammed by the High Court and literally opens the door now to a flood of appeals on every rejection decision, including potential claims for compensation,” Mr Morrison said.
“They have set new records for incompetence that challenge even their pink batts failures. “
Mr Morrison said there was now “no future” for Labor's regional processing centre in East Timor.
He explained that in the middle of 2008 Labor had “introduced what was a non-statutory process or an informal process for assessing and reviewing applications for asylum under the convention”.
He said this was in stark contrast to the statutory process that the Coalition had in place for doing the same job in Nauru, he said.
“If they picked up the phone to Nauru today then all of those same protections and provisions for conducting assessments in a valid way would be in place,” he said.
The two asylum-seekers arrived by boat in 2009, reaching Christmas Island on October 2.
Both claimed refugee status out of fear they faced persecution from the Sri Lankan army, agencies of the government and paramilitary groups because of their alleged support for the Liberation Tamil Tigers of Eelam.
Faced with deportation, the pair appealed to the High Court on grounds of lack of procedural fairness because former immigration minister Chris Evans had failed to personally consider their cases.
The minister has the power under the Migration Act to grant a visa if it is in the public interest.
The Australian government and the immigration minister have been ordered to pay the pair's legal costs. ~ courtesy: The Australian ~