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’. 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.