Category Archives: Courts and Legal Challenges

More than 200 asylum seekers on Manus Island join legal challenge to contest detention

June 23, 2015 | ABC News

The asylum seekers will argue that their ongoing detention breaches the right to liberty.

The asylum seekers will argue that their ongoing detention breaches the right to liberty.

Almost a third of the asylum seekers at the Australian-run immigration centre on Manus Island are challenging their detention, after 277 of them were added to an ongoing case in Papua New Guinea.

The case will argue the detention of asylum seekers on Manus Island has breached at least 8 parts of PNG’s constitution, including the right to liberty, freedom of movement, information about detention and access to a lawyer.

Chief Justice Sir Salamo Injia approved a move to join 277 new applicants to the original 25 asylum seekers who started the case.

“I will be travelling to Manus [Island] and will spend 21 days to collate the 277 signed affidavits for filing by the first week of August,” Ben Lomai, the lawyer representing the asylum seekers, said.

The legal action began when 25 asylum seekers were jailed without charge during unrest in January and were able to make contact with a lawyer while in a provincial prison.

The case has been filed against PNG’s chief migration officer, immigration minister and the state.

Australia’s role in the case remains unclear.

“We are aware of the case being run by Mr Lomai in PNG on behalf of a number of detainees in Manus … [but] the Commonwealth has not been served documents in relation to this case,” a Department of Foreign Affairs and Trade spokesman said.

However, Mr Lomai said he has served documents on the Commonwealth of Australia via diplomatic channels that were suggested by the Australian High Commission.

“If the court finds in favour of the applicants there are serious implications for the Commonwealth of Australia, because I will be asking for [the asylum seekers] to be released to the first port of entry, which is Australia,” he said.

The case is one of numerous legal challenges to the Australian-funded processing of asylum seekers on PNG’s remote Manus Island.

Former PNG opposition leader Belden Namah launched a Supreme Court challenge last year, which has since become bogged down in the court system.

Australia has funded PNG’s legal challenge against Mr Namah’s case.

In March, PNG judge David Cannings launched a Human Rights Inquiry into conditions for asylum seekers,allowing rare media access to the detention centre.

The PNG government stayed that case, citing conflict of interest, and Justice Cannings promptly launched a second human rights inquiry into whether asylum seekers’ rights were being denied.

Separately, asylum seekers are undertaking a class action in the Victorian Supreme Court, suing the Commonwealth for negligence relating to the standard of care provided at the detention centre and for psychological injury caused by conditions.

There were 943 asylum seekers in detention on Manus Island — according to Australian immigration figures from May 31 — and approximately 40 refugees at a transit centre awaiting permanent resettlement.

Some of the men have been on the island for almost two years and the PNG government is yet to form a policy on how to resettle them in other parts of the nation.



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Nauru staff call for closure of asylum centre and royal commission into abuse

April 07, 2015 | the guardian

Open letter from detention centre employees alleges Australian government knew of physical and sexual abuse of asylum seekers on Nauru more than a year before it acted.

Asylum seeker children play in the dirt at the Australian-run immigration detention centre on Nauru.

Asylum seeker children play in the dirt at the Australian-run immigration detention centre on Nauru. Photograph: Supplied

The federal government has been aware of physical and sexual abuse of asylum seekers on Nauru for more than a year but failed to take appropriate action, workers from the detention centre have alleged.

In an unprecedented move, 23 current and former medical staff, teachers, social workers and child protection staff have signed an open letter calling for the removal of all asylum seekers from Nauru to Australia. They have also called for a royal commission into sexual abuse on Nauru and into the government’s response.
Transfield immigration staff told they can be fired for using Facebook
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The three-page letter says comments by immigration minister Peter Dutton that there was a “zero tolerance” attitude to sexual abuse “do not reflect the attitude or actual response” on Nauru.

It says Dutton’s request for asylum seekers to come forward and report sexual assaults could put them in further danger because of the close-knit nature of the detention environment.

The recent review led by former integrity commissioner Philip Moss found some allegations of sexual assault at the centre were substantiated. The review has now sparked a federal Senate inquiry to further investigate allegations of abuse at the centre.

Some of the workers were also due to appear on ABC’s Lateline on Tuesday evening.

The letter says: “We are a group of current and former employees from the Nauru detention centre who have first-hand knowledge of the conditions in which children and adults are detained.


“We would like to inform the Australian public that the government and the Department of Immigration and Border Protection [DIBP] has been aware of the [allegations of] sexual and physical assault of women and children on Nauru for at least 17 months, long before the Moss review was ever commissioned.

“[DIBP] and all service providers were informed, in writing, of several of the assaults detailed in the Moss review in addition to many other assaults not mentioned in the report.”

The letter was signed by former and current staff and workers from Save the Children and International Health and Medical Services.

Former Save the Children workers named on the letter include Jesse-James Clements, Viktoria Vibhakar, Tobias Gunn, Jarrod Kenney, Hamish Tacey and E Maree.

Named former staff from International Health and Medical Services include Dr Peter Young, Dr Rodney Juratowitch and Dr Michael Gordon.

A number of other current and former staff from Save the Children and the Salvation Army have signed the letter, but chose to remain anonymous.

The incidents it highlights include one from November 2013 in which a boy was sexually assaulted by a detention centre employee. Guardian Australia has previously reported on the case, and obtained documents that show the service provider Transfield filed an incident report at the time.

The letter says that on this and other occasions, the immigration department was made aware of the allegations through incident reports, meetings and minutes from Save the Children meetings, but that it chose not to act.

“Despite this knowledge, the DIBP chose to keep this child in the detention centre where he was assaulted and remained at risk of further abuse and retaliation. Indeed, this child was subjected to further incidents of abuse while he was in detention.”

The letter says Dutton’s comments encouraging asylum seekers to report abuse when the Moss report was released posed further risks as they continue to live in close proximity to the alleged perpetrators. The signatories allege this will place them at future risk of assaults.

“It is not safe to expect women and children to report abuse to authorities and then require them to live in close proximity to the [alleged] perpetrators,” it said.

“To do so places them at risk for repeated assault, retaliation for reporting the abuse, and exposure to repeated reminders of the assaults that they suffered which further delays their recovery from trauma.”

The letter says the sexual exploitation of vulnerable women by detention centre staff – another allegation raised by Moss – was reported to the Department of Immigration 16 months before the Moss review.

“However, DIBP refused to remove these women from the unsafe detention environment.”

The letter calls for the closure of the Nauru detention centre.

“In order to protect asylum seekers, and in particular women and children from further abuse, we immediately ask for the transfer of all asylum seekers in the Nauru detention camp to Australia. We also request the Australian people support a royal commission into abuse allegations in the Nauru detention centre.”

The Senate inquiry into events on Nauru is now accepting submissions, and is likely to hold public hearings in April and May. Some former detention centre staff are preparing submissions, which will be protected by parliamentary privilege.


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Scott Morrison’s denial of visa to refugee from Pakistan unlawful, high court finds

February 12, 2015 | the guardian

The high court said the man, a Hazara, faced ‘a real chance of being seriously harmed or killed by extremist groups if he was returned to Pakistan’.

The high court said the man, a Hazara, faced ‘a real chance of being seriously harmed or killed by extremist groups if he was returned to Pakistan’. Photograph: Lukas Coch/AAP

High court justices unanimously rule that basis of refusal – that he arrived by boat – was not legally valid and he must be granted a permanent protection visa.

The high court has ordered the immigration minister to grant a Pakistani refugee a permanent protection visa after three years in immigration detention and sustained government efforts to refuse him.

The government has promised the man a permanent visa within a week.

The high court unanimously ruled that former immigration minister Scott Morrison’s decision to refuse the man a visa was unlawful.

The minister denied the visa simply because the man arrived by boat. The immigration department had found he had a genuine fear of persecution and Australia was legally obliged to protect him.

The Pakistani man arrived on Christmas Island by boat in May 2012. A member of the Hazara ethnic minority and a Shia Muslim, the man faced, the high court said, “a real chance of being seriously harmed or killed by extremist groups if he was returned to Pakistan”.

The man was initially permitted to apply for a visa by Labor immigration minister, Chris Bowen. His application was rejected. However, on appeal to the Refugee Review Tribunal, he was found to be a refugee requiring protection.

But the man was then denied a visa because the minister, by then the Coalition’s Morrison, unilaterally capped the number of visas to be issued.

The high court ruled that action invalid.

The minister then denied him a visa on grounds it would not serve the “national interest” to grant him protection, because he arrived by boat. The court ruled that while the government’s policy was that no unauthorised maritime arrival should be granted a visa to stay in Australia, the law required the minister to grant the visa within 90 days.

The minister’s efforts to “prolong the plaintiff’s detention” by simply refusing to grant the visa were unlawful too.

“The court found … the minister could not refuse an application for a visa only because the applicant was an unauthorised maritime arrival.”

Chief Justice Robert French “made an order commanding the minister to grant the plaintiff a permanent protection visa”.

Guardian Australia reported in October that then immigration minister Morrison was warned by his own department that his attempts to refuse permanent protection visas were illegal and would be defeated in the high court.

Documents before the high court show Morrison was told on 15 January, in a brief from his department, that his policy objective of never granting permanent protection to boat arrivals could not be achieved “in the medium to long term” but that he could “delay being forced to grant” visas in the short term.

The departmental brief is confidential, but sections of it are reproduced in submissions before the high court.

The brief gave Morrison five strategies “to delay being forced to grant a permanent protection visa in the absence of a new temporary visa”, but conceded “each of these strategies is likely to be short lived as a consequence of decisions taken in parliament to overturn them or in the courts to invalidate them”.

Morrison ignored that advice and refused the Pakistani man a visa.

The current immigration minister, Peter Dutton, acknowledged the high court’s judgment and said a permanent protection visa would be issued within seven days.

“The Department of Immigration and Border Protection is looking into the implications of the decision, but they appear to be limited,” a spokesman said.

“This decision doesn’t affect the government’s policy that illegal maritime arrivals will not be granted permanent protection visas.”

The Greens senator Sarah Hanson-Young said the government’s actions showed its “arrogance” in dealing with asylum seekers and refugees.

“The immigration minister is not above the law, despite his consistent efforts to undermine the parliament and the high court,” she said.

“This man is a refugee, he came to Australia asking for help and it’s only after being dragged through the courts that the government will recognise its duty and offer him protection.

“There was no need for this. It was only the government’s own hubris that brought them to this loss.”

The executive director of the Refugee and Immigration Legal Centre, David Manne, welcomed the decision, saying the high court had ruled unanimously that the government had acted unlawfully in denying a person found to be a refugee protection, simply because he had arrived by boat.

“We are carefully studying the potential implications of the ruling for other refugees who arrived by boat, but who were refused a permanent protection visa because of their method of arrival.”

A spokesman for the Human Rights Law Centre, Daniel Webb, said the high court ruling was significant in setting limits to ministerial power.

“Being a boat arrival already triggers a range of severe legal consequences under the Migration Act. The high court has said it was not for the immigration minister to unilaterally attach more under the guise of ‘the national interest’,” Webb said.

The government has been ordered to pay costs.


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Refugee advocate Julian Burnside QC to represent ‘desperate’ asylum seeker on hunger strike in Darwin detention centre

February 06, 2015 | ABC News

Julian Burnside QC

Julian Burnside QC

Human rights lawyer Julian Burnside QC will represent an asylum seeker on a hunger strike in a Darwin detention centre, describing the man as “desperate”.

The 33-year-old Iranian man, who is detained at Wickham Point detention centre, has been on a hunger strike since late last year after losing his appeal for refugee status.

Burnside, a well-known barrister and refugee advocate, said he would represent the man in an appeal against the decision in the Federal Circuit Court next Thursday.

“He’s a man who’s trying to die rather than being sent back to his country,” Mr Burnside said.

“Who wouldn’t want to help someone like that.

“You know that’s pretty desperate territory. I was available on the day, of course I’m going to help.”

The Iranian man began his hunger strike on November 8 last year. He stopped in late December but resumed four days later.

He was joined by 15 other Iranian hunger strikers in late January.

Government ‘morally responsible’ if hunger strikers die: Burnside

One of the men – who did not want to be named – told the ABC some of the hunger strikers had been taken to hospital.

The man said they were protesting against their indefinite detention after their applications for refugee status were rejected.

He said he would be killed if he returned to Iran because of his political and religious beliefs.

Mr Burnside said the Federal Government would be morally responsible if any of the asylum seekers died from their hunger strike.

“The only reason they’re on a hunger strike is because of their fear of what will happen to them if they return to Iran,” Mr Burnside said.

“And frankly, starving yourself to death in Australia is a fair mark of sincerity that you are genuinely scared of returning to Iran.

“It brings to mind an interesting comment that I’ve heard from a lot of asylum seekers over the last 15 years, which is ‘In my country … they kill you quickly, in Australia they kill you slowly’.”


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Ian Macdonald: asylum-seeker law changes aimed at avoiding high court

November 15, 2014 | the guardian

Australia ‘doesn’t want to be beholden to the high court who will pick every comma in the wrong place to allow someone in’, says Liberal senator

ian macdonald coalition senator
Ian Macdonald called for refugees to be dealt with in an ordered way. Photograph: Alan Porritt/AAP

The Liberal senator Ian Macdonald has said Australia was introducing sweeping changes to asylum-seeker processing laws because it did not want to be beholden to the high court.

The comment was made in the course of a Senate inquiry on Friday into the migration and maritime powers amendment, which would makesignificant changes to the assessment process for asylum seekers to “fast-track” decision making, and would also reintroduce temporary protection visas.

Leading lawyers and human rights experts had earlier warned the changes were likely to cause major delays in courts and increase the risk that legitimate refugees would be returned to their countries of origin.

Macdonald’s admission was made in an exchange with the Migration Institute of Australia member Nicholas Tebbey.

Macdonald asked Tebbey why the government was introducing the legislation. Tebbey said: “Australia doesn’t want to feel like it is beholden to a 1951 convention any longer.”

Macdonald interjected, and told the inquiry: “No, it doesn’t want to be beholden to the high court who will pick every comma in the wrong place to allow someone in.”

“That’s the purpose of it. If what we deal with are refugees who we used to deal with through UNHCR in an ordered way, none of this will be important.”


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More than 5700 submissions on Scott Morrison’s controversial immigration bill

November 14, 2014 | smh

A parliamentary committee has received more than 5700 submissions against a controversial bill introduced by Immigration Minister Scott Morrison that could allow Australia to neglect its human rights obligations under international law if passed by the Senate.

The United Nations High  Commissioner for Refugees and human rights lawyers including David Manne have written submissions. They will also appear at a hearing into the  suggested legislation on Friday in Canberra.

The key issues against the bill include removing international legal accountability; fast-tracking refugee assessments that do not allow any right of appeal; and removing references to the Refugee Convention in Australian law. There were 5712 submissions to the legal and constitutional affairs legislation committee. The majority were against the changes.

The UNHCR said it was particularly concerned about  a decision to “fundamentally alter” Australia’s obligations to refugees assumed by Australia on its signing of the 1951 convention relating  to the status of refugees.

Greens senator Sarah Hanson-Young said the bill was “radically cruel”.

“This bill is an affront to Australian decency and compassion,” she said.

Mr Morrison has maintained that the proposed changes will enable the government to stop  the boats, and resolve the “legacy caseload” of 30,000 asylum seekers who arrived under the Labor government.

This month, the government’s  human rights committee, chaired by Liberal senator Dean Smith, found the proposed changes were incompatible with Australia’s human rights obligations.

The report, delivered by the joint parliamentary committee on  human rights, was scathing of nearly all of the government’s proposed changes to the act, saying they would put Australia at odds with international human rights law.

It was particularly critical of a proposal to cut the time in which asylum seekers’ refugee claims would be assessed, warning it could lead to genuine refugees being sent home to face persecution or torture.


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Federal Government loses High Court appeal over refugee status of Afghan truck driver

November 12, 2014 | ABC News

The Federal Government has lost a High Court appeal over the refugee status of an Afghan truck driver who claimed he could not return to his country for fear of persecution.

The Hazara man, who was denied a protection visa by the Immigration Department, had worked for foreign agencies in Kabul transporting construction materials to and from the city.

He fled Kabul in 2011, when another truck driver showed him a letter from the Taliban which named him and urged others to do their “Islamic duty” and get rid of him.

The Department’s decision to deny him a protection visa was affirmed by the Refugee Review Tribunal, which ruled the man could avoid persecution by changing jobs.

However, the High Court found the tribunal had failed to consider whether it was reasonable to expect the man to remain in Kabul, and not drive trucks away from the city.

It meant the tribunal could not make a proper determination on whether he had a well-founded fear of persecution, the Court ruled.

The man’s case will be heard again by the tribunal, in light of the High Court ruling.


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