By Houston Ash
While the legality of the Australian government’s policy of transferring Sri Lankan asylum seekers to that country’s navy is likely to be considered by the High Court shortly, a separate challenge to another pillar of the government’s migration strategy was recently dismissed. In Plaintiff S156/2013 v Minister of Immigration and Border Protection  HCA 22, the High Court unanimously upheld the constitutionality of the provisions of the Migration Act 1958 (Cth) under which asylum seekers are removed from Australia’s ‘migration zone’ to either Papua New Guinea or the Republic of Nauru. The Court also confirmed the validity of the decisions made by the Minister of Immigration and Border Protection to designate PNG as a ‘regional processing country’ and to direct officers of what is now the Department of Immigration and Border Protection to take particular classes of ‘unauthorised maritime arrivals’ to PNG or Nauru.
The provisions in question, ss 198AB and 198AD of the Migration Act, were introduced by the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth). As discussed further below, these provisions were the Parliament’s response to the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship  HCA 32, which scuppered the former government’s so-called ‘Malaysia Solution’.
The challenged provisions
Section 198AD of the Migration Act requires ‘unlawful non-citizens’ who are also ‘unauthorised maritime arrivals’ to be taken to a ‘regional processing country’ as soon as reasonably practicable. If there are two or more such countries, s 198AD(5) requires the Minister to provide a written direction specifying the country to which a person or class of persons is to be taken. Section 198AB allows the Minister, by legislative instrument, to designate that a country is a ‘regional processing country’ if the Minister thinks it is in the national interest to do so. In considering the national interest, the Minister must have regard to whether the country has given any assurances that it:
- (a) Will not expel the person to a country where his or her life or freedom would be threatened; and
- (b) Will permit an assessment of whether the person is a refugee within the meaning of art 1A of the Refugees Convention.
Section 198AB(4) provides that any such assurances do not need to be legally binding. Continue reading
By Megan Driscoll and Houston Ash
Dozens of people who have been found to be genuine refugees remain in immigration detention in Australia because they are the subjects of secret adverse security assessments made by the Australian Security and Intelligence Organisation (ASIO). Plaintiff M76/2013 v Minister for Immigration and Citizenship  HCA 53 was a case brought by one of these refugees, challenging her continued detention under the Migration Act 1958 (Cth). It was of particular interest to High Court watchers because the plaintiff sought to challenge the correctness of the controversial 2004 High Court decision of Al-Kateb v Godwin  HCA 37. In that case, a majority of the High Court held that the Migration Act could authorise the indefinite detention of ‘unlawful non-citizens’. In the event, a majority of the High Court in Plaintiff M76 chose not to consider the correctness of Al-Kateb. However, Plainitff M76 nonetheless sheds some light on the prospect of Al-Kateb being overturned in the future. It also ties together two recent decisions of the High Court relating to Australia’s asylum seeker assessment procedures.
Plaintiff M76’s entry into Australia
The plaintiff in this case is a Sri Lankan Tamil woman, known to us as Plaintiff M76, who entered Australia by boat at Christmas Island in May 2010 seeking asylum. Under the Migration Act, she was classified as an ‘unlawful non-citizen’ and, having arrived in Australia at an ‘excised offshore place’, she was also an ‘offshore entry person’ (now ‘unauthorised maritime arrival’). Section 189(3) of the Migration Act required officers of the Department of Immigration to immediately detain her, and under s 196(1) she must remain in immigration detention until she is removed from Australia, deported, granted a visa, or she is dealt with for the purpose of removing her to a regional processing country. Section 198(2) of the Migration Act requires officers to remove Plaintiff M76 from Australia as soon as reasonably practicable provided that she either has not made a valid application for a substantive visa or her visa application has been finally determined. Continue reading
By Megan Driscoll
Asylum seeker policy has been a polarising subject in Australian politics for more than a decade and it continues to be so with the recently-elected Abbott government attempting to impose its perspective on the political debate on the topic by mandating asylum seekers arriving by boat be referred to as ‘illegal’. Consecutive federal governments have introduced increasingly harsh schemes to deal with the perceived influx of people arriving in Australian territorial waters by boat to seek asylum. The High Court is yet to hear a case challenging the legality of the current arrangement of transferring asylum seekers to Papua New Guinea, Plaintiff S156/2013 v Minister for Immigration, Multicultural Affairs and Citizenship (transcripts of directions hearings here and here).
Plaintiff M79/2012 v Minister for Immigration and Citizenship  HCA 24 (Plaintiff M79) deals with another aspect of the asylum seeker statutory regime: the validity of a temporary safe haven visa granted to a person who had not made an application. In this instance, the Minister granted a temporary safe haven visa to the plaintiff, a Sri Lankan national who arrived by boat on Christmas Island in February 2010 seeking Australia’s protection. The validity of the visa depended on the criteria the High Court determined the Minister was bound to consider when granting the visa, and whether the Minister had addressed those criteria. A majority of the Court found that the sole criterion binding the Minister was whether or not it was in the ‘public interest’ and that it was within the Minister’s discretion to determine what factors were relevant to that interest. Interestingly, Plaintiff M79 could signify that the High Court is beginning to take a more deferential approach to ministerial conduct in deciding to grant or decline visa applications than it has in the recent past, including in the case that rejected the previous government’s so-called ‘Malaysian solution’. Continue reading