The Australian recently provided:
Manne back to High Court for refugees
The lawyer who scuttled Julia Gillard’s Malaysian Solution is launching another legal battle against the government, challenging its authority to indefinitely detain refugees who are deemed to be security threats by Australia’s spy agency.
This is not entirely true because it was not a lawyer aka David Manne who scuttled the legislation, but rather that it was a decision of the High Court of Australia. As much as we would like to, lawyers do not have the ability to scuttle legislation. This particular ruling of the High Court came as much as a surprise to the government as to anyone, given a previous decision of the Supreme Court.
The basis of Manne’s argument is that “his client has been denied procedural fairness” and that “the government’s refusal to release (him) into the community is unlawful”.
The background to this being that adverse ASIO security assessments allow for indefinite detention. This has it’s basis in a previous High Court ruling where, much to the dismay of many, in the case of Al-Kateb v Godwin [HCA], on 6 August 2004 it was ruled that the indefinite detention of a stateless person was lawful.
However, this is where things become difficult: Since Al-Kateb’s application for a visa was rejected, he was then classified as an unlawful non-citizen. S196 of the Migration Act provides that unlawful non-citizens can only be released from immigration detention if they are granted a visa, deported, or removed from Australia.
Result: languishing in limbo.
Approximately 50 people who are recognised as refugees are currently thus caught: unable to be granted a visa due to an adverse ASIO finding, they have no option for appeal, nor even the right to know the evidence against themselves.
The situation is, how does one defend oneself without know details of the charges, all the while being denied the right to argue one’s case.
It should be stressed that these are people who have passed all the criteria to be recognised as genuine refugees. My understanding is that unlike other persons who can be deported, that these people cannot be returned to their country of origin having already deemed to be genuine refugees. Also to my knowledge, to date Australia has only been effective once in relocating to a third country a stateless person with an adverse ASIO finding: therefore sending people “elsewhere” is not an option.
Done by Law reveals that:
Such security assessments are made in a closed and non-reviewable environment. The indefinite detention has a massive human cost, several refugees in such legal limbo have attempted to take their life.
Additional, there is also concern that adverse assessments by ASIO can be based on those of foreign governments whose interests lie in labelling dissidents seeking aslyum as security risks.
Example: Labor’s Laurie Ferguson has expressed concern that ASIO assessments could draw on material provided by the Sri Lankan government.
The issue of procedural fairness or natural justice is a controversial one. This relates not just to that particular law, but to how that law is applied. That is, when the law is applied, that there is the risk that the outcome might be unjust. This requires a value judgement. Procedural fairness requires that there be a fair and just outcome.
ASIO assessments may indeed be accurate, but without the right to an independent review, it risks people being denied natural justice.
The Opposition’s response to the above call for procedural fairness was to demand for the return of the Howard era processing of asylum seekers offshore, specifically Nauru. I am often dismayed by the Opposition’s refusal to address issues.
Note: David Manne and a number of other lawyers are working pro bono. I wish them well.