The High Court decision on refugees. What does it mean?

So if you read my Best for this week you will see that I am absolutely elated about the High Court Decision made yesterday. I was not alone in my jubilation – and Julie Cowdroy was one of the elated people who called me and volunteered to explain the ins and outs.  She writes

WHAT DECISION WAS MADE BY THE HIGH COURT YESTERDAY?

 

The High Court of Australia has made a ruling yesterday that will affect all future asylum seeker applications made by people who try to reach Australia by boat, because it has recognised that the Government can no longer act in absolute power, outside of the law, just because a refugee is intercepted on their way to Australia and sent to Christmas Island.

The Government has been attempting, for years now, to keep asylum seekers who arrive outside the “official channels” the protection of Australian law and to keep their claims for justice out of the protection of the courts. Until now.

 

WHY? WHAT HAPPENED?

 

Two Tamil men applied for refugee status. They had their claims rejected by the Department of Immigration and by an independent reviewer.

The men then took their claim to the High Court, thanks to the pro bono services of a legal team. The High Court ruled that the processes assessing the refugee status of these two were unfair and unlawful.

SO, WHAT DOES THIS MEAN?

This issue gets into the nitty-gritty of asylum seeker policy because it deals with the way in which people who arrive by boat are processed. These seemingly “dry” processes, which have for years been left without scrutiny by the wider community are now in the spotlight and we have the chance to examine these processes and ask if they are just for some of the world’s most desperate people.

We need to consider the processes that give the Government too much power, and, have, up until now, snubbed the rule of law.

Before we go on, it is vital to understand the separation of powers.

Separation of powers:

 

This is the act of dividing power between three groups that reinforce the notions of freedom and justice.

The three groups are:

1. The Executive (currently, the Cabinet Ministers in the Gillard Government);

2. The Legislature (the 150 members of the House of Reps and 76 Senators) who   pass laws through parliament; and, the

3. Judiciary, which is our court system.

OK. Back to asylum seekers. Let’s recap. Person flees country. A people smuggler puts them on a boat. Person heads for, in this case, Australia. Person is re-directed to Christmas Island.

Stop.

Let’s talk about Christmas Island. It is important to note that when an asylum seeker tries to reach Australia by boat, the Australian government classifies them as an “offshore entry person” or “unlawful maritime arrival”. Once redirected to Christmas Island, these people fall conveniently out of the boundary lines of the rule of domestic law in Australia, but, also conveniently they fall at the mercy of the Minister for Immigration and the Department of Immigration’s bureaucratic processes. (Can you see where this is going?)

The whole purpose of off-shore processing as set up in 2001 under Howard with support from Labor, is that it is carried out in an “Migration Excision Zone” that excludes it from the tenets of our law. (Conveniently, many islands are part of this zone, including Christmas Island).  This system is designed to give the Government absolute and unreviewable power to say that a person is or is not a refugee.

How do asylum seekers apply to become refugees?

First remember, these are no home loan applications. These are life and death decisions. So, let’s really examine how the Government tried to set up these processes.  Remember, this is the process that determines whether a person is or is not a refugee – if they may be allowed into Australia, or if they will be deported to the country that they risked their lives to flee.

First step, a Department of Immigration official carries out a ‘Refugee Status Assessment’ (RSA). It used to be that 90 per cent of these claims were successful until recently, when the rate changed to a 70 per cent REJECTION. (This was at the time of the Oceanic Viking incident just before the election… I’m just saying.)

Next step, for those are rejected at the RSA stage, an ‘independent’ contractor carries out an ‘Independent Merits Review’ (IMR) that goes back over the case. About 50 per cent of the cases that are refused at the RSA stage go to an IMR and are approved, and 50 per cent are rejected (obviously).

The Government tried to set up both the RSA and IMR processes to ensure that they would not be bound by the decision of courts or ‘procedural fairness.’ (You can use that in a sentence today, I promise). Procedural fairness is really just making sure the procedure one has to undergo to apply for refugee status is fair. Let’s call it PF. PF is characterised by things like transparency. For example, in the case of the two Sri Lankan men, the application was refused by the IMR because the men’s individual accounts of their situation did not line up with the information that the reviewer had in front of them about the situation for people who are forcibly returned to Sri Lanka. But because of a lack of PF, these men had no way of knowing this information, (incidentally this was found today to be wrong) or having the option to take it to the courts. (By the way, if you arrive ‘onshore, even if it is as a stowaway, you get access to PF with a full set of rights and protections… I’m just saying).

It is vital to remember that the RSA and IMR processes were implemented, in theory, to assist the Minister to make these decisions (but now you bright things can you see how these processes reinforce the power of the Executive, AKA the Government, hey?)

If applicants have been rejected by the RSA and the IMR processes, they have the option of appealing to the Minister who has the power to grant asylum on compassionate grounds. (Oh, by the way, he doesn’t really tend to do this).

Similarly, if applicants have been approved by the RSA or IMR processes, asylum seekers take their case to the Minister who chooses to grant them refugee status (which, again, reinforces the power of the Government).

The Government set up the RSA and IMR processes so they would not be bound by the Migration Act 1958. This is what the High Court had issues with today.

Why? Because the High Court held that the Minister set up these processes to support his use of power under the Migration Act. In using that power the Minister is still acting in accordance the Migration Act, which essentially means he is acting under the law. In other words, the Government rejects the binding of the law in its RSA and IMR processes, but will use the law to exercise power in making decisions about refugees. SEE HOW GOSH DARN CHEEKY THAT IS?

Oh, so this ruling now means the Government has less power in these decisions?

Yes. Suddenly the power the Government has exercised over asylum seekers in off-shore processing facilities is diluted.

This is important not just for asylum seekers, but for every Australian because it reinforces the fact that the Australian Government cannot act how it pleases, but must act according to the law – and that rights to procedural fairness apply even to the most disenfranchised.  It reaffirms that under the Constitution, the government does not have absolute power over anyone, only the limited power that was granted to it under the Constitution. This is how we enjoy life with certain freedoms in Australia. (Also see how dry concepts can sometimes = important. Just. Saying.).

The High Court is rejecting the idea that the Executive and the bureaucratic processes it establishes, has the ultimate ability to do whatever it wants without the bounds of law, even in these ‘Migration Excision Zones’.

The bottom line is, people who are seeking refugee status because they claim they have been persecuted, have to date been assessed by a process and according to the discretion of officials and contractors without any chance of review, even where there were mistakes or unfair processes.

That doesn’t mean that everyone who seeks refugee status will get it.  But it does mean that wrong or unfair decisions by bureaucrats or independent contractors will get the scrutiny that is only right under our Constitutional system.

And that is cool.

Well, perhaps I speak too soon. Let’s see how the government responds.

The Greens are going to introduce a bill into parliament next week that proposes that all asylum seekers can apply to the courts. What will the Labor Government do? Will they pass it through? Or join the Coalition and reject the idea? (Remember we have a minority government). The government understands that the application processes will take longer if this bill does go through. People will apply through the RSA, the IMR, the Department, and now have the option of appealing to the courts.  But, under the High Court’s decision, the Government cannot stop them from appealing right now.

Despite this, human rights advocates are calling on the government to respect this ruling and give more access to the courts for asylum seekers. For power should never be vested in just the Executive without any limitation – that’s a recipe for an unaccountable Government. Now the courts have put the brakes on that.

Let’s see what happens.

As well as being the Mamamia Political Correspondent, Julie Cowdroy is an ambassador for Opportunity International Australia and the Global Poverty Project.  Julie is also a singer and you can download her album here

Julie would like to thank the very busy lawyers who took her calls all day and answered her many questions about the legal process for asylum seekers, but who have to remain anonymous. You know who you are.