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Australia high court rules application of migrant laws unfair

By Maureen Cosgrove

[JURIST] The High Court of Australia [official website] on Thursday ruled unanimously [judgment text] that two Sri Lankan men held offshore on Christmas Island had been denied procedural fairness. The court stated that the government wrongfully denied the asylum seekers, who wanted to apply for visas, access to the Australian legal system. The plaintiffs entered the Australian territory of Christmas Island by boat and were detained under section 189(3) [text] of the Migration Act of 1958 [text], which provides that "If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person." Upon detention, the Department of Immigration and Citizenship [official website] conducted a Refugee Status Assessment (RSA) [overview] for each of the plaintiffs and concluded that neither plaintiff was a person to whom Australia had protection obligations. The investigators who conducted Independent Merits Reviews (IMR) [overview], third-party RSA reviews requested by the plaintiffs, reached the same conclusion. The plaintiffs were unable to challenge the RSA and IMR inquiries because they were being held at offshore detention centers. The court held that the reviewer who conducted the RSA made an error of law by not treating provisions of the Migration Act and court precedent as binding. The ruling also establishes that asylum seekers who arrive by boat must be treated as those who arrive by plane. The ruling could force the Australian government to review its offshore processing policy [BBC report] for asylum seekers.

Australia's immigrant processing system has undergone a number of changes in recent years. In April, Australia temporarily suspended [press release, JURIST report] processing of all asylum claims from Sri Lanka and Afghanistan because of improved security situations in those countries. The Australian House of Representatives [official website], in August 2006, approved the Migration Amendment (Designated Unauthorized Arrivals) Bill [text] requiring asylum seekers arriving in Australia by boat to be processed in offshore camps [JURIST report], rather than on the mainland. A November 2006 judgment [JURIST report] by the High Court of Australia held that a "holder of a temporary protection visa is not entitled to further protection in Australia if they are no longer in danger in the country from which they fled" and that the person may not remain a refugee. Australia's mandatory detention [AHRC backgrounder] policy, which requires any non-citizen without a visa seeking entry to be detained, had previously been challenged [JURIST report] by rights groups.

Full post as published by JURIST - The Paper Chase on November 11, 2010 (boomark / email).