News: Migration Bill targets High Court rulings

Last Thursday, Immigration Minister Scott Morrison introduced the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 into the federal Parliament. While the headline issue is the return of temporary protection visas,  the Bill contains many other provisions. Indeed, the Explanatory Memorandum observes that the ‘Bill fundamentally changes Australia’s approach to managing asylum seekers’. As  asylum seeker law is regularly considered by the High Court, the Bill inevitably responds to a number of the Court’s decisions and is intended to reverse several of them.

The major change is contained in Schedule 5 (‘clarifying Australia’s international law obligations’), which is intended to reverse ‘a series of High Court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations’,including two key rulings on ‘offshore processing’: Plaintiff M61/2010E v Commonwealth of Australia [2010] HCA 41 (on procedural rights for asylum seekers on Christmas Island) and Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 (on the Malaysian Solution.) Relevantly, new section 197C of the Act provides that non-refoulement obligations (barring the return of refugees to potential persecution or torture) are irrelevant to the power to remove  ‘unlawful non-citizens’ in various circumstances under s198 of the Act.

A number of Court rulings are also implicated by the new section 5J of the Migration Act, which defines the key term ‘well founded fear of persecution.’ The Explanatory Memorandum states that the new section:

  • is a ‘statutory implementation’ of the ‘real chance’ (of persecution) test set out in Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62.
  • sets out a ‘reasonable steps’ test for assessing whether an asylum seeker’s future actions mean that he or she ‘would’ be persecuted is ‘not inconsistent with the principles ennunciated by a majority of the High Court in S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71
  • ‘codifies the interpretation of effective protection measures provided by the State consistent with’ Minister for Immigration and Multicultural Affairs v S152/2003 [2004] HCA 18
  • is intended to remove the High Court’s test for ‘reasonableness’ in ‘internal relocation’ cases sets out in SZATV v Minister for Immigration and Citizenship [2007] HCA 40.

As well, new section 5L prefers overseas tests for ‘membership of a particular social group’ to the broader test announced by the High Court in S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 and Schedule 7 repeals provisions the High Court recently relied upon in Plaintiff S297-2013 v Minister for Immigration and Border Protection [2014] HCA 24 to rule that a Ministerial power to limit visa numbers did not apply to protection visas.

Importantly, the Bill may also be relevant to matters currently before the High Court. Notable examples include CPCF v Minister for Immigration and Border Protection (the high profile litigation involving a boat from India), concerning both Australia’s non-refoulement obligations and the powers over vessels in the Maritime Powers Act 2013 (both the subject of amendments by the BIll) and the pending appeal from Minister for Immigration and Border Protection v SZSCA [2013] FCAFC 155 (concerning a claim of persecution based on the applicant’s occupations as a truck driver in Kabul), which appears to be affected by the limitation of the test for persecution based on future behaviour to ‘fundamental’ or ‘innate’ characteristics of the person.

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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.