Tag Archives: australian high court

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.

Source: http://www.abc.net.au/news/2015-06-22/hundreds-of-manus-island-detainees-join-legal-challenge/6564698


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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.

Source: http://www.theguardian.com/australia-news/2015/feb/11/scott-morrisons-denial-of-visa-to-refugee-from-pakistan-unlawful-high-court-finds

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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.”

Source: http://www.theguardian.com/australia-news/2014/nov/14/ian-macdonald-asylum-seeker-law-changes-aimed-avoiding-avoid-high-court

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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.

Source: http://www.abc.net.au/news/2014-11-12/immigration-department-loses-appeal-over-afghans-refugee-status/5885148

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Asylum seeker can apply for permanent protection visa, high court rules

September 11, 2014

Judges say asylum seeker who accepted a temporary visa could not be barred from applying for a permanent one.

Scott morrison
Scott Morrison said he was talking to crossbenchers about passing temporary protection visas. Photograph: Stefan Postles/AAP

The high court has dealt another blow to the federal government’s plans to give asylum seekers temporary protection visas (TPVs), ruling an earlier move to force asylum seekers on to temporary visas was invalid.

In a joint unanimous decision the high court ruled on Thursday that an asylum seeker who had been in detention for two years and accepted a temporary humanitarian concern visa – a type of of temporary visa employed by the government earlier in 2014 – could not be precluded from making an application for a permanent protection visa.

Asylum seeker casework organisations began receiving mass refusals of permanent protection visa applications in February and many of their clients were “invited” to accept temporary humanitarian concern protection visas in what was described as a back-door reintroduction of temporary protection visas.

The Senate voted to disallow the regulation that permitted the use of the visas in May, but in the three months that the regulation was in force, many asylum seekers were placed on the visas. The high court decision relates to one of those asylum seekers.

The high court’s release on the decision said: “The high court unanimously held invalid the grant by the minister for immigration and border protection of a temporary safe haven visa to the plaintiff which had the effect of precluding the plaintiff making a valid application for a protection visa, in circumstances where the plaintiff’s detention had been prolonged for the purpose of the minister considering the exercise of power to allow the plaintiff to make a valid application for a visa of his choice.”

The executive director of the Refugee and Immigration Legal Centre, David Manne, welcomed the decision.

“It is significant because the high court has found yet another attempt by government to block people being given permanent protection and circumvent parliament is unlawful,” he said.

But Manne cautioned that the further ramifications of the decision remained unclear as the government attempted to negotiate with crossbench senators over the introduction of TPVs through parliament.

The decision follows a possible U-turn on offshore transfers announced in a speech by the immigration minister, Scott Morrison, on Wednesday, in which he indicated the Coalition would consider granting temporary protection visas to some asylum seekers who arrived between 19 July and 31 December 2013 and had not already been transferred for offshore resettlement.

The government has been attempting to secure the support of crossbenchers to reintroduce a temporary protection visa bill or regulation.

When asked about the possible changes signalled in his speech, Morrison told ABC AM on Thursday: “What we are talking about with the crossbench is those who arrived last year and none of those would be given a permanent visa in Australia either. No permanent resettlement in Australia either.”

“So, I think they are very clear measures but we have to work with the Senate that we have and if we have to make some changes to get TPVs in then that’s what we are talking to them about.”

Detention centre sources on Nauru have told Guardian Australia that news of Morrison’s possible U-turn filtered through to asylum seekers on Wednesday evening.

“The whole camp is talking about it,” a source said, adding that asylum seekers, including family groups, misinterpreted the potential U-turn as applying to them. “Last night the mood was quite elated.”

The source said centre workers were now having to explain that the announcement only applied to those on Christmas Island and had been warned that adverse reactions to the news could be expected.

Water supplies continue to dwindle in the detention centres on the island.

Greens senator Sarah Hanson-Young reiterated that the Greens would not support the introduction of temporary protection visas.

“Offshore processing has collapsed and the Greens won’t be bullied into backing the government’s cruel and punitive temporary protection visas,” she said.

“It’s entirely inappropriate of the immigration minister to hold children in detention to ransom so that he can get TPVs through the Senate. The parliament has rejected TPVs and today the high court has ruled that the immigration minister’s use of two other types of temporary visas is unlawful.”

Katie Wrigley, principal solicitor of the Refugee Advice and Casework Service (RACS), welcomed the high court decision.

“This case has a positive effect for those who were issued with or offered these visas. RACS continues to oppose grants of temporary visas, including grants of temporary safe haven visas,” she said.

“The clients that are affected by this case have spent incredibly long times in detention in Australia, and RACS supports a process that is efficient and that will allow them to be considered for permanent protection.”

Source: http://www.theguardian.com/world/2014/sep/11/asylum-seeker-can-apply-for-permanent-protection-visa-high-court-rules

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Australia grants permanent protection visa to teenager who fled Ethiopia

July 22, 2014

High court ruling and backflip by immigation minister Scott Morrison could have ramifications for other asylum seekers.

Scott Morrison reacts during question time in parliament.
Scott Morrison during question time in parliament. Photograph: Lukas Coch/AAP

The immigration minister has issued a permanent protection visa to an unaccompanied minor who fled Ethiopia and arrived in Australia by boat, in a major backflip that could have ramifications for other asylum seekers in Australia.

Since the Coalition government came to power in September, Scott Morrison has aggressively stated it would not issue permanent visas to asylum seekers who arrive by boat in Australia and has attempted to cap the number of permanent visas it offers.

But he has now issued a visa to the 15-year-old boy whose case led to a high court ruling that such a cap was invalid.

After the ruling, Morrison had initially indicated he would still not grant the boy a permanent visa, and had appeared intent upon getting around the ruling by introducing a new public interest test in July.

Morrison said following the ruling: “The policy of the Australian government is that those who arrived illegally by boat or plane … should only be granted a temporary visa.

“This policy forms part of a suite of measures that have been critical to the government’s success to date in preventing maritime people-smuggling ventures as part of Operation Sovereign Borders.

“The government will continue to implement this policy consistent with the powers established under the Migration Act and national interest.”

He had then asked the boy’s lawyers to argue why it was in the national interest for a visa to be granted.

But now Morrison appears to have changed tack, with a decision that the boy’s lawyer, David Manne, said was a “great outcome for my client but also a great outcome for the whole of our nation”.

Manne said the boy was “so happy to finally have an answer … I just can’t believe it”. Manne added the boy had been through a “terrible cycle of uncertainty” as his case progressed through the court.

“I look forward to the government recognising that not only is it in the interests of our client and all refugees in Australia, but in the interests of Australian society to give people a permanent visa to rebuild their lives,” Manne said.

“We look forward to the government adopting the same approach for other refugees.”

The boy is understood to have arrived by boat as a stowaway 16 months ago, lodging a protection claim in April last year.

He is said to be a keen and talented sportsman, currently studying in Melbourne.

“It’s hard to comprehend the courage it took him to flee in such fear and then, having arrived here, have the courage to present his case before the high court,” Manne said.

“The circumstances are extraordinary, but in another sense what he’s done is something that ought to be considered normal in this country. Anyone should be able to raise questions with the court and ask if the government has the power to do what it is saying it wants to.”

Source: http://www.theguardian.com/world/2014/jul/22/australia-grants-permanent-protection-visa-teenager

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High Court blocks return of 153 asylum-seekers to Sri Lanka military

July 07, 2014

Immigration Minister Scott Morrison has declined to comment on the whereabouts of an asyl

Immigration Minister Scott Morrison has declined to comment on the whereabouts of an asylum-seeker boat which is believed to be carrying 153 people. Picture: Kym Smith Source: News Corp Australia

THE High Court has granted an interim injunction to prevent 153 asylum-seekers being returned to the Sri Lankan military by the Australian Navy.

In an urgent hearing in Sydney this evening after an application by refugee advocates, Justice Susan Crennan granted an interim injunction that would stop the Australian Navy returning the Sri Lankan asylum-seekers, who have claimed to be minority Tamils, being handed over to the “Sri Lankan government, its military or its agents.”

Asylum-seekers face criminal probe

Acting on behalf of refugee advocates and the Tamil association, solicitor George Newhouse has sought to protect a boat of 153 people claiming to be Tamil refugees who made contact with Australian authorities after leaving Pondicherry in southern India late last month.

The order sought to protect 48 people who are named as Tamils, while it seeks to protect a further 105 unnamed asylum-seekers who are also claiming to be Tamil refugees.

Justice Crennan’s interim injunction protecting the removal of the asylum-seekers believed to be on the Australian Navy vessel will stay in place until 4pm tomorrow. The matter is set to be heard in the High Court tomorrow afternoon.

Justice Crennan noted that “the position of Tamil minority appears problematic” and that the applicants had “made out a prima facie case for urgent relief”.

However she also noted that “it was not entirely clear what the next step for the plaintiffs” was and the application “appears somewhat speculative”.

The court heard evidence from affidavits field by human rights groups, as well lawyers handing up the Australian department of foreign affairs own travel warnings on what they describe as a still unstable and potentially dangerous situation in Sri Lanka.

Acting on behalf of the asylum-seekers, barrister Ron Merkel compared the case to the Tampa boat crisis, saying: “the Tampa case raised a slightly similar” although slightly “different question” about the constitutionality of parts of the migration act that could allow returns of asylum-seekers.

“This is a clear case where the commonwealth should not be able to risk the lives of those on the boat … simply because they were unable to make a claim,” Mr Merkel said.

Acting on behalf of the commonwealth, Andras Markus said claims that the asylum-seekers would be handed over to Sri Lanka were “entirely speculative” and relied merely on media reports.

“The factual assumptions made are simply not sufficient to justify the sort of judicial power that is being sought,” he said.

“The reference to press reports do not provide a sufficient factual basis for the making of the orders being sought.”

Source: http://www.theaustralian.com.au/national-affairs/high-court-blocks-return-of-153-asylumseekers-to-sri-lanka-military/story-fn59niix-1226980884195


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