This is wonderful news for human rights, refugees and decency:
The [Australian] High Court has ruled in favour of two asylum seekers in a move that could undermine the Federal Government’s offshore processing system.
The two Sri Lankan Tamils had their refugee claims denied and wanted to challenge that decision in the courts.
But they 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 the two men were denied procedural fairness when Government contractors reviewed their case.
The men had wanted Immigration Minister Chris Bowen to personally review their case but were told he had no duty to do so because they were being held offshore.
The High Court’s decision means the Federal Government can no longer refuse to allow the courts to review decisions made about people who are processed offshore in places like Christmas Island.
The Federal Government has been ordered to pay the costs for the two asylum seekers.
The men arrived on Christmas Island last October claiming they would be persecuted if sent back to Sri Lanka.
The pair were alleged supporters of the paramilitary Tamil Tigers movement.
The men’s lawyers claimed the Federal Government’s processing procedures on Christmas Island are unlawful and unconstitutional.
David Marr in today’s Sydney Morning Herald offers background:
Even before wreaths are laid on the cenotaphs of the nation this morning, the High Court may send to the grave Australia’s treatment of boat people since the arrival of the Tampa. Sweating on the outcome are two Tamils who took their troubles to the court. Both were refused refugee protection early this year. Both are sitting in Villawood facing forced removal to Sri Lanka.
Canberra is sweating too. A decision in favour of the men could halt dozens of deportations and change the fate of thousands of boat people held in camps across Australia. The “excision” system that ships them all through Christmas Island would become redundant. The court might put in doubt every negative finding of the so called “non statutory” Refugee Status Assessment system that has decided the fate of every boat person for a decade.
It’s big. Few decisions of the court have been so anxiously and eagerly awaited. All will be clear this morning, but when lawyers gathered in August to argue the case in Canberra, judges on the bench indicated they were ready to make a big call: that boat people cannot be detained and processed outside the law.
Had the two Tamils known as M61 and M69 flown to Australia on a tourist visa and then asked for refugee protection, they would have been released into the community and assessed by the Refugee Review Tribunal with the courts keeping an eye on officials to make sure all was properly done.
But because M61 and M69 arrived at Christmas Island, their fate was entirely in the hands of the Minister for Immigration. That’s the theory anyway: they landed in territory “excised” from the Immigration Act so no court can have a say in their processing. A “non statutory” Refugee Status Assessment was compiled for each by outside contractors, but ultimately whether the two Tamils stayed or went was at the absolute discretion of the minister.
The claim that these contractors “do not need to be regulated by decisions of this court is,” observed the High Court judge William Gummow, “a rather remarkable state of affairs.” What’s more, M61 and M69 were detained while being assessed. This was the ordinary fate of all boat people processed in Australia but how, asked the judges, can a “non-statutory” process immune from court scrutiny authorise detention? Gummow again: “People are incarcerated under this system and transported around the country.”
In late March, M61 and M69 were among 89 asylum seekers flown to Villawood in a blaze of publicity as Christmas Island reached bursting point. The prime minister, Kevin Rudd, told the nation: “They are currently being processed for return back home.”
Rudd was jumping the gun. But both men were eventually denied refugee status because the contractors employed to conduct the “non statutory” Refugee Status Assessment considered the account the men gave of their predicament back home did not square with the official “country information” they had about Sri Lanka. But the two men were never quizzed about this fatal discrepancy; never given a chance to explain themselves. Instead they were rejected. Had they arrived in Australia by air, such a failure of natural justice could have been corrected by the courts.