Australian Immigration Daily News

“No one who attempts to travel to Australia illegally by boat will settle in Australia.” 

So Minister Peter Dutton was quoted by the ABC as saying in response to yesterday’s ruling by the Supreme Court of Papua New Guinea that the detention of detention seekers on Manus Island breaches the right to personal liberty that is guaranteed by PNG’s constitution. 

It will certainly be interesting to follow what happens in the aftermath of this decision. 

Already, the immigration spokesperson for the Greens, Senator Sarah Hanson-Young, is being quoted by the ABC as stating that “the Government has no other option but to bring the people left there (on Manus Island) to Australia and allow them to apply for an Australian visa”. 

In light of the decision from the Supreme Court of Papua New Guinea, it is timely to take a look at a recent decision from the Federal Circuit Court of Australia which highlights the difficulties that people who have arrived in Australia by boat may encounter under the present legislative framework. 

The case was Laami v Minister for Immigration (2016) FCCA 717 (30 March 2016). 

The story in this case was that the applicant appeared in the Federal Circuit Court without the assistance of a lawyer to challenge a decision by a Departmental officer that declared his application for a Partner visa to be invalid. 

The applicant, Mr Laami, is an Iraqi national who originally arrived on Christmas Island by boat in January 2012. At the time of his arrival at Christmas Island, Mr Laami was not the holder of an Australian visa. 

Consequently, he was subject to the provisions of section 46A of the Migration Act.  

Section 46A(1) provides that an application for a visa is not valid if made by a person who is an “unauthorized maritime arrival who is in Australia and is an unlawful non-citizen.  The term “unlawful maritime arrival” is defined by section 5AA of the Act to mean a person who entered Australia by sea at an “excised offshore place”.  Christmas Island is, of course,  prescribed to be an “excised offshore place” by section 5(1) of the Act.  

There is some scope to extend flexibility to “unauthorized maritime arrivals” under section 46A of the Act.  Subsection 46A(2) provides that if the Minister thinks that it is in the public interest to do so,  the Minister may determine that subsection 46A(1) does not apply to an application by the unauthorized arrival, and thus consider a visa application by such a person to be valid.  

However, subsection 46A(7)  does say that the Minister is not required to exercise the power to determine that a visa application made by an unauthorised maritime arrival is valid, either whether the minister is requested to do so by the person or in any circumstances.  In other words, under existing law it is a matter for the Minister’s discretion whether to allow a visa application made by an unauthorized maritime arrival to be characterized as “valid”. 

What happened in Mr Laami’s case is that, a few months after he arrived in Australia, the Minister did exercise his powers under section 46A(2) to allow him to lodge an application for a protection visa. Unfortunately for Mr Laami, that application was refused by a Departmental officer, and the refusal was affirmed by the then-Refugee Review Tribunal. 

According to the judgment of the Federal Circuit Court, Mr Laami was granted s series of bridging visas during in 2012 and 2013, apparently while his application for a protection visa was pending before the Department and his application for review before the RRT was awaiting disposition. However, the last of his bridging visas expired in September 2013, and thereafter he became an unlawful non-citizen. He was taken into detention in December 2015. 

While he was in detention, Mr Laami sought an extension of time under section 195 of the Act to apply for a Partner visa. (section 195 allows a detainee a period of time after being taken into detention to make a visa application). 

As a matter of fact, the Department did grant Mr Laami an extension of time to lodge a further visa application. 

However, after that application was made, the Department advised Mr Laami that the application was invalid under section 46A. 

Mr Laami challenged this decision in the Court, but he was unsuccessful. 

He claimed that he was entitled to lodge his application under section 195. 

This argument simply did not work. 

The Court held that section 195 only provides time periods within which a person who is in detention may apply for a visa. Section 195 does not provide any relief against the operation of section 46A which makes any application for a visa by an unauthorized maritime arrival invalid. 

What is truly heartbreaking about this particular case is that Mr Laami made submissions to the Court (apparently well-founded) that he had an Australian partner and an Australian citizen son who was born shortly before he was taken back into detention (in October 2015). 

So, the apparent effect of the Department’s refusal to accept Mr Laami’s partner visa as invalid is that he will be separated from his partner and infant child, and likely forced to return to Iraq. 

The irony (or if you will, the “crazy part”) of this case is that if Mr Laami had arrived in Australia at an airport instead of at Christmas Island, he would have been able to make a valid partner visa application even if  he no longer held a substantive visa and notwithstanding the fact that his application for a protection visa had been refused.  Moreover the fact that he and his Australian partner have a very young Australian citizen baby most probably would have enabled Mr Laami to obtain a “waiver” of Schedule 3 criteria. 

In other words, Mr Laami was prevented from making a valid partner visa application and apparently also prevented from remaining in Australia with his family simply due to his original status as an unauthorized maritime arrival. 

Does this seem like a just or compassionate outcome? Should Mr Laami have been given further disposition under section 46A(7) to lodge a valid Partner visa? What good was it that the Department granted him an extension of time to lodge the Partner visa application under section 195, it in the end it simply turned around and said that the application was not a valid one. 

What do you think about all of this? State your views in the comments section!

Concordia Pacific, Email: This email address is being protected from spambots. You need JavaScript enabled to view it.