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Immigration facing 'chaos' after High Court decision
By Alexandra Kirk and staff


A High Court decision on asylum seekers is threatening to undermine the Federal Government's offshore processing system

In a judgement handed down today, the court upheld a challenge mounted by two Sri Lankan Tamil asylum seekers who had their refugee claims rejected.

The men wanted to challenge that decision in the courts but were prevented from doing so because they were being held in an offshore detention centre on Christmas Island.

However, in a unanimous decision, the High Court has ruled that was an error of law and that the two men were denied procedural fairness when Government contractors reviewed their case.

The decision calls the entire Commonwealth system of offshore processing for asylum seekers into question, with Opposition immigration spokesman Scott Morrison saying the process has been "thrown into chaos".

The court found the Federal Government cannot deny access to the nation's court system to those asylum seekers who arrive by boat onto an area excised from Australia's migration zone.

Not only is this a win for the two Sri Lankans, but it could apply to any asylum seekers denied access to the courts all the way back to when the Migration Act was changed by the Howard Government almost a decade ago.

The Howard government introduced legislation, supported by Labor, to excise thousands of islands from Australia's migration zone.

The express aim was to deny all asylum seekers arriving by boat access to Australia's court system when it came to reviewing rejected refugee claims.

But the High Court has ruled that because the Immigration Minister decides to apply the Migration Act to every asylum seeker's application for protection or refugee status, asylum seekers should also be afforded procedural fairness in the review of the assessment of their claims.

In other words, asylum seekers from Christmas Island should not be treated differently under Australian law when it comes to applying for protection.

The men, both alleged supporters of the paramilitary Tamil Tigers, arrived on Christmas Island last October claiming they would be persecuted if sent back to Sri Lanka.

The High Court has ordered the Commonwealth and Immigration Minister Chris Bowen to pay costs.

A 'great decision'

The coordinator of the Refugee and Immigration Legal Centre, David Manne, initiated the action on behalf of the two Sri Lankan Tamils.

Their asylum claims have been rejected and could be revisited by the Independent Merits Review, but not reviewed in the courts.

Mr Manne says they had a big win today.

"The attempt to keep these people outside Australian law and the protection of Australian courts has failed. This is a great decision for the rule of law in this country," he said.

"The High Court has unanimously ruled that these decisions for our clients were unfair and unlawful because the Government was not applying ordinary Australian laws to decisions on these life-or-death matters.

"So we call on the Government to publicly confirm that it will respect the court's decision and give all these people a new decision-making process that complies with the ruling of the court.

"That is, decisions must be made fairly and in compliance with ordinary Australian law."

Mr Manne says asylum seekers who have their refugee claims rejected will now have access to the Australian court system.

"The decision applies to every asylum seeker in Australia subject to the offshore processing regime," he said.

"It means that not a 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.

"Essentially the solution now is to ensure that all asylum seekers are put on equal footing and no-one is discriminated against because of where or how they arrived in Australia."

Mr Manne says the decision will also apply retrospectively to asylum seekers who have been the subject of offshore processing since 2002.

"There's no doubt that this decision will also result in looking very carefully at what has happened in relation to the decisions of many asylum seekers subject to this offshore processing regime; this scheme which the High Court has now found to be fundamentally flawed," he said.

'Diabolical decision'

The immigration minister at the time the law was changed, Philip Ruddock, accepts the High Court ruling but says it will clog up Australia's legal system.

"In terms of being able to manage Australia's borders this will be a diabolical decision. It will increase rapidly the numbers of people seeking to access Australia," he said.

"I don't dispute the court's entitlement to come to a view. But the outcome will have very significant implications for Australia and the capacity to be able to manage our borders."

Mr Ruddock says the courts will struggle to cope with the number of cases.

"Once they access it for a preliminary decision if they don't like the outcome they will take a further appeal," he said.

"If they don't like that outcome they will take a further appeal. In the end all of them will end up before the High Court.

"I think the High Court will have a very, very, significant case load which they will have difficulty in managing."
Source: ABC News
 

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Who'd have thunk it: "Australia" means the territory of Australia and not what the government deems the migration zone.

Even putting them on an Australian flag vessel ought to give them access to s 75 of the Constitution.

Want to fix it? constitutional alteration. People hate illegal immigrants, right? And even people who don't may hate slimy immigration lawyers...
 

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Citadis Rider
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Who'd have thunk it: "Australia" means the territory of Australia and not what the government deems the migration zone.

Even putting them on an Australian flag vessel ought to give them access to s 75 of the Constitution.

Want to fix it? constitutional alteration. People hate illegal immigrants, right? And even people who don't may hate slimy immigration lawyers...
Only problem is they hate constitutional referenda even more. It's tantamount to changing the flag, which is also a mortal sin.
 

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Galactic Ruler
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It's not like we are a tourist mecca anyway and what of covert operations?

It's not like anyone can hear you scream when out in the middle of the ocean.
 

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Galactic Ruler
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What is trolling about that? I don't agree with the court's decisions and I support offshore processing and removal of rights. Speak to a few navy staff and see what they tell you, many I know see greater benefits in sinking the vessels. Just because you have gone all hippy in the forums does not make your point of view the only valid one.

What action does the US take in illegal border crossings in relation to their mexican borders ... it's certainly not a dinner date of cake and coffee.

I guess you are only too happy to funnel your taxes into paying for unscrupulous solicitors and the thousands of potential cases that could be brought against the Australian Government. It sets a dangerous and expensive precedent IMO.
 

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A precedent which will hopefully result in change :)

Hippie generally doesn't define someone who doesn't want to kill people by sinking their boats, locking them up in jails or denying them the human rights that we are all expected.

Speak to a few sane people, and they'll tell you that Australia's treatment of asylum seekers is abhorent and wrong.
 

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Galactic Ruler
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A precedent which will hopefully result in change :)

Hippie generally doesn't define someone who doesn't want to kill people by sinking their boats, locking them up in jails or denying them the human rights that we are all expected.

Speak to a few sane people, and they'll tell you that Australia's treatment of asylum seekers is abhorent and wrong.
Fortunately Australia is home to less of these sane people you talk of. Talk to most people on the street and i think you will find a fairly divergent view to the one you express.
 
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