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Immigration Daily News High Court shows its disdain to politicising Australia’s protection obligations
High Court shows its disdain to politicising Australia’s protection obligations
The Chief Justice of the High Court of Australia supported by a unanimous decision has made an unusual order “commanding” the Minister to grant an asylum seeker a protection visa within seven days.
The recent High Court decision which ordered Immigration Minister Peter Dutton to grant a permanent protection visa to a Pakistani asylum-seeker is a timely reminder of the power of the third arm of government – the judiciary. It takes politics out of the matter and addresses the intent of the law, rules on it and enforces it with orders, which sometimes need to be phrased strongly to get its message across.
This time, the wording of the orders, which essentially commanded the minister to act within 7 days, indicated a disdain at the disregard shown by former Minister of Immigration, Scott Morrison, to Australia’s protection obligations enshrined in the s65A of the Migration Act.
After the Tribunal had found the asylum seeker, known as “S297” was a genuine refugee and overturned DIBPs original 2012 refusal decision, former Immigration Minister Scott Morrison decided, with a determination to discourage boat arrivals, that it was “not in the national interest” to protect an unauthorised boat arrival. He then refused to grant a protection visa to “S297”. What is in the “National interest” is of course largely a political question.
DIBP originally denied a protection visa due to regulations capping the number of visas granted. DIBP relied on s85 of the Act, which allowed for the capping of visa numbers.
The High Court however distinguished the sections and unanimously ruled in June 2014 that s65A obligations are ‘superior’.
The obligation to protect people could not be side-stepped with the court ruling that therefore it did not have to address the ‘national interest’ criterion. In yesterday’s ruling the High Court held that the Migration Act states ‘exhaustively’ what consequences flowed from asylum-seekers who arrive by boat, and the Minister ‘could not refuse any application for a visa only because the applicant was an authorised maritime arrival’.
The Minister in essence neglected to consider the purpose of a protection visa. Labor immigration spokesman and Richard Marles told the media that Mr Morrison’s ‘stubborn’ decision had been exposed by the court as a ‘sheer act of petulance’.
Tune in next time for a potential compensation claim for a ministerial blunder that left “S297” in detention for years.
Immigration blog
The High Court in administrative law cases normally sends discretionary questions back to the decision maker, but in this case it substituted its own decision on the facts. It would have been instructive if the High Court had sent the question back. The new minister would then have had to rule again on the matter.
The High Court can do what it did, and it may be absolutely correct on the law, but its reasons seem more than merely legal.
Unfortunately for complainants, this is probably an isolated case because the parliament has pulled away the plank upon which the appellant relied.
Of course, given a bit of legal ingenuity, there may other avenues for genuine victims of the new laws to manoeuvre their way to the High Court.