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Courts react with glee to tighter asylum rules

July 5, 2013


Richard Ackland


“Try as politicians might to cut Australian law out of the [refugee] process, the courts are doing their best to get it back in.” Photo: Sharon Tisdale

The quality of the political response to asylum seeker arrivals has been predictably dire – and it’s been like that for many years.

Exploitative, cheap, inaccurate and unutterably depressing.

The ceaseless ratcheting-up of the rhetoric about boat arrivals is designed, no doubt, to appeal to voters in marginal electorates who for some mysterious reason have a ”well-founded fear of being persecuted” by refugees.

Prime Minister Kevin Rudd is now liberally splashing about his mea culpas. Foreign Affairs Minister Bob Carr has whipped up some distraction over ”economic refugees”, which is the basis of his call that the processes should be ”reviewed”. The fact is the system is constantly under review, along with routine tinkering in response to circumstances or a new bout of heightened political trauma.

What sticks out in this zone of shambolic policy and fear-mongering is that every time significant changes are made to the Migration Act, great cheers issue from the city law shops and bar chambers.

The courts are still there and, despite bare-knuckle attempts to quarantine them from the process, the judges have repeatedly dealt themselves back into the game.

After the Tampa affair in August 2001 the Howard government introduced a batch of measures designed to deter ”irregular maritime arrivals”.

Among them was an attempt to exclude judges from reviewing migration decisions – the notorious ”privative clause”.

The High Court said that’s all very well and good, however the legislation cannot curtail the courts from reviewing cases where there has been ”jurisdictional error”, i.e. legal mistakes, or breaches of the rules of natural justice.

Contrary to what Howard and Philip Ruddock, his immigration minister, wanted, the courts are still there, appeals are still available. The High Court effectively smacked down this audacious executive power grab.

There were other schemes, including an attempt to create a legal black hole by excising islands around the mainland from the migration zone and prohibiting ”offshore entry persons” from making visa application to enter Australia, unless the minister says otherwise.

More recently the entire mainland of Australia has, farcically, been added to the exclusion zone.

So even though refugees arriving in the excised territory of Australia cannot lodge visa applications under Australian law they are still able to seek asylum and to have their claims processed.

Our treaty obligations make that unavoidable, so what has been created is a non-statutory refugee status assessment regime, whereby departmental officers determine whether a person has refugee status. Each case is then referred to the minister, who will decide ”in the public interest” whether a refugee can apply for an onshore protection visa.

Complicated, messy and slow – and not much of a disincentive.

Cases can also be referred to an independent merits reviewer, which we understand has been carried out by former members of the Refugee Tribunal employed by a private company called Wizard People Pty Ltd.

That’s what was put in place after Tampa. But, it’s not the end of the matter because this contorted arrangement has been adjusted courtesy of the High Court, which found in the abstractly named M6 and M69 v the Commonwealth that both the refugee status assessments and the independent merits reviewers owe refugees ”procedural fairness” and they are also bound by other aspects of Australian law.

The Foreign Affairs Minister thinks the refugee determination process should be toughened. The High Court might have other ideas.

Try as politicians might to cut Australian law out of the process, the courts are doing their level best to get it back in.

Towards the end of the 1990s, 68 per cent of the Federal Court’s work came from Refugee Review Tribunal appeals. When the Federal Magistrates Court, now the Federal Circuit Court, got jurisdiction to review those decisions, its work increased tenfold. Last year migration cases filed in the Federal Magistrates Court represented about 60 per cent of the general federal law workload.

It’s enormous, yet Australia receives around 0.7 per cent of the world’s asylum seekers and those referred by the United Nations make up under 8 per cent of migrants accepted in Australia.

The political discussion, for sinister reasons, is never framed around the infinitesimal proportion of human displacement with which Australia legally and morally is obliged to cope.


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