Asylum seekers in offshore detention can't be denied access to the judicial process available to those who apply from the mainland, Australia's High Court ruled today.
In a unanimous decision, it declared that two Sri Lankan men, detained at Christmas Island, had been denied procedural fairness as former immigration minister Chris Evans failed to consider their cases personally.
AdvertisementThe country has been thrown into a tizzy following the ruling, as immigration is a very sensitive subject and lot of people rush to the Australian shores seeking asylum there almost every day.
Opposition Deputy Leader Julie Bishop noted, with perverse glee, "The processing system is now in chaos as a result of this High Court ruling and detention centres are being opened up across Australia to cope with people coming."
The two asylum seekers arrived by boat in 2009, reaching the island on October 2 last year.
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 consider their cases personally.
The minister has the power under the migration act to grant a visa if it is in the public interest.
The High Court upheld their argument that they had been denied procedural fairness when having their claims for refugee status assessed.
"Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the executive," the judgment said.
The court found the government had erred in not regarding the asylum seekers as being bound by the Migration Act and decisions of Australian courts.
For a good measure, the High Court ordered the Commonwealth and Immigration Minister Chris Bowen to pay costs too
Asylum seekers housed outside Australia's migration zone are denied the same legal rights as applicants on the Australian mainland. This system came into effect in 2001 as part of the Howard government's Border Protection Act.
The legal dispute hinged on the distinction made by the government between asylum seekers who arrive by plane and those who come by ship since 2001.
Boat arrivals are placed in detention; their status is assessed by contractors of the Immigration Department and if denied, they have had - until now - no right of appeal in Australia's courts.
But those who arrive by plane are not automatically detained - and do have the right of appeal if their claim to refugee status is denied. This distinction has virtually been set aside by the country's highest court.
But Immigration Minister Chris Bowen sought to put on a brave face, arguing, "The High Court has not found that the excision of certain islands in Australia is unconstitutional, the High Court has not in any way cast judgment on the mandatory detention regime in Australia.
"The High Court have found that refugee assessments and independent merits reviews are subject to judicial appeal, judicial review in certain circumstances."
Still he conceded that the decision had significant ramifications and said that he would make recommendations to Cabinet in the next few weeks on how the Government should respond.
The coordinator of the Refugee and Immigration Legal Centre, David Manne, is delighted, predictably. He says asylum seekers who have their refugee claims rejected will now have recourse 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.
The immigration minister at the time the law was changed, Philip Ruddock, slammed it a diabolical decision, warning it would only increase rapidly the numbers of people seeking to access Australia and end up clogging the country's legal system.
Mr Ruddock says the courts will struggle to cope with the number of cases as everyone denied entry can fight it all the way to the High Court.
The Greens say they will introduce a bill next week giving all asylum seekers access to the courts.
Greens Senator Sarah Hanson-Young says the bill will ensure that all asylum seekers are able to ask the courts to review their cases.
"To ensure that we can deal with this problem and we don't leave unnecessarily asylum seekers languishing anxiously in the detention system - that is unfair, that is unjust," she said.