Australian Court rules refugee processing violates "procedural fairness"
[TamilNet, Friday, 12 November 2010, 03:06 GMT]
High Court of Australia, in a landmark ruling said that the Australian Government's attempt to keep "unlawful non-citizens" in prolonged detention in Christmas Island while the refugee status was being processed under the Migration Act of 1958, was not proper as the detention had "direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the Executive," and ordered the Commonwealth and the Immigration Minister to pay plaintiffs' costs. The plaintiffs' were two Sri Lankan Tamils who were refused refugee status and decided to challenge the legality of Australia's offshore refugee processing system in Christmas Island.
The High Court declared that "it was an error of law for a person conducting a review of a refugee status assessment as part of an "offshore processing regime" to fail to treat provisions of
the Migration Act 1958 (Cth) ("the Migration Act") and the decisions of Australian courts as binding. It held that two Sri Lankan citizens who arrived at Christmas Island claiming refugee status were also denied procedural fairness in the review of the assessment of their claims."
Legal observers said that today's decision will likely allow failed asylum-seekers from Christmas Island access to Australian courts to appeal and that the decision will open a floodgate of legal actions in Australian courts.
David Manne, the coordinator of the Refugee and Immigration Legal Centre, who initiated the action on behalf of the two Sri Lankan Tamils said, "[t]here'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."
The decision also will be politically damaging to the ruling labor government, as the Rudd Government in 2007 was responsible for decommissioning the refugee processing centers in the Manus Island and Nauru, and bringing the processing to Christmas Island.
Between 2001–2007, the former Howard Government secured the passage of legislation through the Australian Parliament which excised Christmas Island from Australia's migration zone, meaning that asylum seekers arriving on Christmas Island could not automatically apply to the Australian government for refugee status.
This allowed the Royal Australian Navy to relocate them to other countries (Papua New Guinea's Manus Island, and Nauru) as part of the "Pacific Solution." In 2006 an Immigration Detention Centre, containing approximately 800 beds, was constructed on the island for the Department of Immigration.