Refugees win access to courts


Paul Maley and Sid Maher

THE Gillard government is bracing for a wave of asylum claims to swamp the legal system.

This comes after the government accepted the results of a High Court ruling that raises serious questions about the value of offshore processing.

Responding for the first time to the High Court’s ruling on the rights of asylum-seekers to challenge procedural aspects of their cases in the courts, Immigration Minister Chris Bowen yesterday announced the government would appoint two new federal magistrates specifically to deal with the expected deluge in new cases.

Changes to the refugee review process will also greatly extend the appeal options available to asylum-seekers.

But, in a move likely to put the government on a collision course with the Greens and the Coalition, Mr Bowen said the government was already considering laws to limit access to the courts.

He said one option was eliminating the jurisdiction of the Federal Court, something legal experts said could be done with an act of parliament.

The changes announced by the government yesterday, which were based on legal advice from the Solicitor-General, provoked fresh questions about the value of retaining Christmas Island as a processing hub for refugees.

The island, along with other parts of Australia’s territory, was excised from the migration zone by the Howard government in 2001, a move that denied asylum-seekers access to the courts.

University of Sydney law professor and refugee law expert Mary Crock said that logic no longer applied.

She said there was now virtually no legal difference between a protection application lodged at Christmas Island from one lodged on the Australian mainland.

“But practically the gulf is enormous,” Professor Crock added. “You are treated much more fairly onshore than offshore.”

Professor Crock said there was no longer any point to offshore processing, which, according to the incoming government brief supplied to Mr Bowen by his department, was budgeted to cost $471.18 million. That compared with onshore detention costs of $93.76m.

The High Court unanimously ruled in November that two Tamil asylum-seekers were denied procedural fairness and failed to have their claims processed in accordance with the Migration Act.

The court rejected the government’s use of the Migration Act to detain asylum-seekers on Christmas Island while claiming the assessment process was “non-statutory” – occurring outside of Australian law.

Mr Bowen, citing advice from the Solicitor-General, said yesterday that, as a result of the decision, failed asylum-seekers would now have access to the Federal Magistrates Court, the Federal Court and, finally, the High Court.

In an effort to streamline what is sure to be a longer, more expensive process, Mr Bowen said immigration officials would “triage” new asylum claims.

As of March 1, when the regime takes effect, asylum-seekers with obviously weak or problematic claims would be sent straight to a newly established “independent protection assessment” reviewer.

The protection assessment replaces the old independent merits reviewer who audited failed claims, and whose decisions were the subject of the High Court ruling. From there, they could appeal through the courts if unsuccessful.

The announcement greatly extends the appeal options available to asylum-seekers processed offshore, who prior to the court’s ruling only had access to a single non-statutory reviewer appointed by the government.

The government’s response was dismissed by Tony Abbott as “bureaucratic hand-wringing”. He said as long as asylum-seeker boats kept coming, problems would remain.

“Look, there’s really only one way to address this and that is to stop the boats, and nothing in today’s announcement by the government will actually stop the boats,” the Opposition Leader said.

The Coalition’s acting border protection spokesman, Michael Keenan, said the High Court decision had undermined the concept of Christmas Island, underlining the need for the government to process illegal arrivals in a third country.

“If the government is serious about streamlining the process, they should acknowledge their never-never East Timor solution is a complete farce and pick up the phone to call the President of Nauru,” Mr Keenan said.

Greens immigration spokeswoman Sarah Hanson-Young called on Julia Gillard to show “true leadership” by standing up to conservative forces within her government, rather than acting like John Howard on asylum-seeker policy.

Senator Hanson-Young said the Greens would oppose any legislative moves by the government in response to the High Court’s ruling on offshore processing.

She predicted the policy would result in an increase in self-harm, suicides and mental health problems among asylum-seekers in offshore detention.

Mr Bowen said the streamlined process was aimed at improving the efficiency and fairness of the system and minimising the scope for judicial complaint. But he warned that experience showed “a high proportion” of failed asylum-seekers would nevertheless seek full judicial review.

“That is the experience and that is what we need to brace ourselves for,” the Immigration Minister said.

Mr Bowen said that about 1400 asylum-seekers would likely be funnelled through this new system.

Those whose claims were already in the system would be processed under the old regime, although, if unsuccessful, they too would have access to the courts.

Mr Bowen announced that former commonwealth and immigration ombudsman John McMillan had been appointed to examine ways to expedite what was likely to be a convoluted process.

“The options Professor McMillan will examine will include, but not be limited to, removing the right of appeal to the Federal Court,” Mr Bowen said.

However, he added he did not want to burden the High Court – the next point of appeal if the Federal Court was eliminated.

Mr Bowen said the cost of appointing two federal magistrates just to deal with refugee cases would be $800,000 each.

The cost to the taxpayer could increase as failed asylum-seekers move through the courts, potentially with the assistance of taxpayer-funded legal advice.

Mr Bowen urged both the Greens and the Coalition to reserve judgment until Professor McMillan handed down his recommendations on possible new laws next month.