Entries by category: Migration

The High Court, in a majority decision on 5 October 2012, ruled invalid a regulation that prevented the issue of a protection visa to a refugee with an adverse security finding made against them by ASIO. This meant that the refusal of the visa based on that regulation was a decision ‘not made according to law’.

The plaintiff, identified as ‘M47’, is a Sri Lankan national who arrived in Australia in December 2009, and has been held in detention since that time. He was granted refugee status on the basis of a ‘well-founded fear of persecution’ on the basis of his race or political opinion. He was however refused a protection visa because ASIO had assessed him as a risk to national security. A clause within the Migration Regulations 1994 (Cth) has a criterion for providing a visa (called ‘public interest criterion 4002’), which requires that the applicant has not had an assessment made that they are a risk to security under the Australian Security Intelligence Organisation Act 1979 (Cth).

Here are some newspaper articles which discuss the case, before and after the decision:

‘Freedom or a life without liberty?’ by Michael Gordon, SMH, 5 /10/2012

‘High Court rules ASIO powers on refugee decisions are invalid’ by Michael Gordon, SMH, 5/10/2012 

A media release by the Australian Human Rights Commission has welcomed the decision and called for an immediate reconsideration of more than 50 other refugees in the same situation.

The High Court has provided a summary of the case and the full decision is also available on AustLII.

Listen to the ABC Law Report on the High Court decision, or read the transcript of the program, broadcast on Tuesday 9 October, 2012.

The Report of the Expert Panel on Asylum Seekers was released on 13 August 2012. The panel was given the task of reporting on the best way to prevent asylum seekers risking their lives trying to reach Australia by sea.

Members of the panel were

• Air Chief Marshal Angus Houston (retired), former chief of Australia's defence force
• Mr Paris Aristotle, Director of the Victorian Foundation for Survivors of Torture Inc
• Professor Michael L'Estrange, Director of the National Security College, Australian National University.

The report's 22 recommendations include offshore processing of asylum seekers on Manus Island and Nauru. The recommendations have been accepted by the government and opposition and parliament has since passed legislation. See the full report or read sections of it.

The article 'Gillard backs experts' asylum seeker report' by Philiip Coorey, SMH, 13 August 2012 includes commentary on the report and a video of the panel members answering questions from the press.

The Parliament of Australia has passed a bill, Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012 that, once given Royal Assent, will become law.

'Senate passes offshore processing bill', ABC website, 17 August 2012.

The 2012-13 Federal Budget was brought down on 8^th May 2012. The Refugee Council of Australia have analysed the budget and what it means for Australia's Refugee and Humanitarian Program.

There will be no new places in the next year with the Program remaining static at 13,750 places – 6000 Refugee Program places, and 7750 places for the Special Humanitarian Program and onshore protection visa allocations combined. Funding of $20.2 million over two years will go towards support of unaccompanied humanitarian minors.

Read the budget report by the Refugee Council of Australia.

The NSW Auditor-General has also released a report called 'Settling Humanitarian Entrants in New South Wales' which looked at the support services provided.

The report found that unlike most of the other states NSW does not have a single point of contact for people entering via the humanitarian program. Consequently entrants are doing less well than in other states on health, housing and employment.

Read the media release and full report published by the Auditor-General.

There has been much media attention on the recent High Court decision that ruled against the 'Malaysia transfer deal'.  You can read our earlier posts on this decision.  The UNHCR has offered to conduct a review of Australia’s refugee processing system.

Erika Feller, the refugee agency’s assistant High Commissioner told ABC radio last week that she would urge the Federal Government to look closely at mandatory detention as part of a ‘serious review and serious reform’ in light of the High Court decision.  This interview with Erika Feller can be heard on ABC Sunday Profile. (9 September 2011) See a summary of this interview  ‘UN refugee agency calls for Australia to rethink its asylum policy’ by Kirsty Needham, SMH, 12 September 2011.

You might also want to listen to these two reports on ABC’s The Law Report:

• 'The High Court buries the Malaysia Solution', 6 September 2011
• 'The High Court Malaysian Solution Challenge', 23 August 2011 – interview with Mary Crock before the High Court handed down its decision.

The following opinion pieces are also interesting:

• 'Suddenly, Ruddock is a human rights hero' by Richard Ackland, SMH, 9 September 2011;
• 'New Pacific fix all but impossible' by David Marr, SMH, 5 September 2011; and
• 'The fall of the Malaysian Solution: the High Court decision' by Binoy Kampmark, Australian Policy Online, 1 September 2011.

A background note produced by the Australian Parliamentary Library was written before the High Court handed down its decision.  However, it still provides useful information on the legislation discussed by the High Court and the attempts by parties such as the Greens to amend it.  See Should Parliament ultimately decide whether asylum seekers may be sent to a foreign country? by Ellibrit Karlsen, APH Background Note, 19 August 2011.

The High Court handed down its decision, ruling against the 'Malaysia transfer deal' on Wednesday 31 August 2011.

The Court held that, under section 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to:

• provide access for asylum seekers to effective procedures for assessing their need for protection;
• provide protection for asylum seekers pending determination of their refugee status; and
• provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.

In addition to these criteria, the Migration Act 1958 (Cth), requires that the country meet certain human rights standards in providing that protection. Click here to read the High Court's summary of the judgment. The full decision is available on AustLII.