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