It’s all about fairness

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.

39 comments on “It’s all about fairness

  1. That ‘languishing in legal limbo’ in indefinite detention seems such a nonsense these days when surely electronic tagging and general surveillance in the community would be far less costly than centres and security guards currently in use. Is either party likely to adopt such a policy? Or is the detention approach, whether on or off-shore, maintained just to keep some Australians feeling safer?

  2. Patricia, sadly that was the High Court ruling. These people are deemed to be asylum seekers yet also deemed by ASIO to be a security risk. They are therefore subjected to indefinite detention without recourse to appeal, nor to even know the basis for the adverse assessment.

    This is what Manne is arguing, that there is a lack of procedural fairness..that although the original law might be just, that the outcome is unjust.

  3. No government body should be above scrutiny. We only have to see how the previous government got it wrong by expelling a sick Australian citizen.

    There are ways to ensure the rights of people with endangering our security.

    The problem with most of those lock up, is how one looks at the war they fled from. Were they freedom fighters, was it a civil was, or are they just terrorist.

    If terrorist, who were their targets.

    I do hope this court case is successful.

    Remember the old security files from the communist era when they were open to the public. They were laughable. The only ones to look bad, were the security agencies themselves.

    I believe much of what they are saying today, will be found to be based on rumour and innuendo, not fact.

  4. The point of the matter is that it’s a put up and shut up scenario. There is no recourse to state one’s case, there is no venue to put one’s own case forward.

  5. Min, patricia & CU, I take it this action is in response to Rajini, who along with her two children is currently languishing in indefinite detention.

    This sort of treatment of people in a supposedly civilised country like Australia is quite appalling and should be stopped immediately.

    Like patricia, i don’t see why the matter couldn’t be resolve by electronic tagging while the truth is ascertained. Locking up young children in this way is barbaric and the sort of behaviour one would expect from a totalitarian regime, not Australia.

    I sincerely hope that David Manne is successful and that this disgraceful law is consigned to the rubbish bin, pronto.

    If it isn’t, we should all hang our heads, most of all the lawmakers in Canberra.

    People, no matter who they are, should be allowed to know what crime they are alleged to have committed and the right to defend themselves and the presumption of innocence, unless proven guilty.

    Unfortunately, there’s a lot of totalitarian thinking going on in this country atm. Not the sort of stuff to be proud of in what used to be touted as the land of the fair go.

  6. Jane, yet this is the situation. A legal anomaly caught in a case of procedural unfairness. When this ruling was originally brought down nothing could have suited Howard better – a High Court case which stated that indefinite detention was lawful.

    I can see Howard now eyes twitching, shoulder slumped to one side (which meant that he was lying) saying how this would be a deterrent to people smugglers.

  7. Jane, and apparently people smugglers are still going to be deterred according to Abbott..in spite of High Court rulings which provide that Abbott cannot lawfully attempt that which he tells the Alan Jones’ listeners. But apart from that small snippet of factual information, apparently Abbott is going to do it any old how.

    I await with baited breath for some right winger to front up and tell me how they are going to circumvent High Court rulings. I’ve sent out a number of lures..so far, no takers.

  8. Iain, why would one stay with young children in limbo, if they felt they could return.

    Saying that, it is not what the post is about.

    One has a right to know why they have been rejected. That should be due process and justice.

    There is no good reason why they should not.

    No body should be above scrutiny. One has the right to know they are accused on, and the right to test the information in a court.

  9. Legal limbo: these people are genuine refugees and so they cannot be deported but due to an adverse ASIO assessment cannot be given a Visa = legal limbo.

    But given the adverse assessment cannot even know the basis for this adverse assessment. Cu, given your work I am certain that you will know what an adverse assessment can mean while not having the means to even know what the details are.

    And so off to the High Court we go….

  10. Min, not only know, but well aware one can be wrong. The information given can be far from reliable.

    That is why one has the legal system and the courts, to test the information.

    That is the way it should be.

  11. Cu, and this is why an adverse ASIO assessment disallowing the person access to the courts is going to be tested by the High Court. If you do not have access to the courts, do not have access to the details of the adverse assessment then then this what Manne is talking about – no procedural fairness.

  12. Well if they don’t “feel” happy about going Back to Sri Lanka what is wrong with them going to southern India where there is a large Tamil community?
    In any event how long does a civil war have to be over before it can no longer be cited as a reason to try to migrate to a country like ours?
    The reason I ask is because I really think that the core issue here is economic migration rather than an issue of personal safety of the claimants.
    That said even if the cases in question were reviewed and there was no change in their security status what then?

  13. Jane, I am very hopeful in this regard or else David Manne and friends would not be working pro bono. This indicates some degree of confidence about success.

  14. Iain, you are showing your ignorance. You cannot deport people to a 3rd country, only to their country of origin..that is, unless the 3rd country agrees to take them. Other countries have over the years shown a complete unwillingness to take our rejects..probably something to do with us being a wealthy country and other countries figuring that we have more than adequate resources to deal with our own small trickle of refugees.

    Is it back to basics..yet again. People who are deemed to be genuine refugees have been thoroughly assessed via the criteria – that is, a real fear that the person will be murdered/mutilated/imprisoned upon their return to that country.

    Good grief..of course people want a better life. How dare people want a better life and come to Australia to find one.

  15. Iain, maybe she can. Maybe she cannot. I suspect there are reasons that it is not that simple.

    Once again, that is not what it is about. It is about having allegations ,made that cannot be tested. Not even knowing what the allegations are or where they came from.

    I would guess that not many countries would accept one, when one has been so labelled.

    One at least has the right to know what the allegations are or why one is banned.

  16. Min, it could also be of the label they have been lumped.

    Imagine the interview.

    Why don;t you stay in Australia.

    They will not allow me too.

    I do not know, but they say I am a threat.

    What type of threat are you.

    I do not know.

    Why?

    They will not tell me.

  17. This situation is likely to be a by product of the Australian first past the post voting system. Where refugee policy is or has been driven by a handful of marginal seats where the views of people who are not interested, don’t care or who will not look any further than the latest slogan drive the policy development.

  18. Min

    Iain, you are showing your ignorance. You cannot deport people to a 3rd country, only to their country of origin.

    I am well aware of the tenets of the UN Convention but my point is that the choice to come here rather than the easier to get to southern India suggests that what is sought is not “refuge” ratehr its a migration outcome.

    .that is, unless the 3rd country agrees to take them. Other countries have over the years shown a complete unwillingness to take our rejects..probably something to do with us being a wealthy country and other countries figuring that we have more than adequate resources to deal with our own small trickle of refugees.

    What obliges us to welcome all who lob onto our borders Min (other than the very out dated UN convention)?

    Is it back to basics..yet again. People who are deemed to be genuine refugees have been thoroughly assessed via the criteria – that is, a real fear that the person will be murdered/mutilated/imprisoned upon their return to that country.

    What you say begs the question of just how realistic is that fear? and the problem with the UN criteria namely it is based exclusively on the subjective feelings of the claimant, rather than ony sort of objective judgement of the actual situation.

    Good grief..of course people want a better life. How dare people want a better life and come to Australia to find one.

    But the point is that every individual in an impoverished nation wants to live what they see as the “good life” in the more modern societies of the west but does that oblige us to have open borders and welcome all comers? Because essentially that is what “asylum seeker ” advocates are effectively arguing for.
    CU

    Iain, maybe she can. Maybe she cannot. I suspect there are reasons that it is not that simple.

    The thing is she and her children can return to Sri Lanka if they so choose and I very much doubt that she would suffer the things she fears, It makes no sense that having so soundly defeated the LTTE that the government there would be mistreating the Tamils if they want peace to be enduring after such a bitter and bloody civil war.

    Once again, that is not what it is about. It is about having allegations ,made that cannot be tested. Not even knowing what the allegations are or where they came from.

    As I said earlier what happens if there is a review and it comes to the same conclusion and these people are still determined to be a security risk?

    I would guess that not many countries would accept one, when one has been so labelled.

    Well then the best option for these failed claimants is that they return to Sri Lanka and take their chances (which are undoubtedly better than they claim) to make a new life in the post war environment.

    One at least has the right to know what the allegations are or why one is banned.

    Oh I think that they know well enough that their involvement with The LTTE is the reason for their rejection, what it would come down to is the nature of their involvement wouldn’t it?

    Migs
    Oh surely you would not abandon your fellow travellers when Tony gets into the lodge? 😉

  19. Iain, but of course only a very small trickle come here with our so-called problem being miniscule compared with regions such as southern India. This was the very reason why Indonesia has stated categorically that they will not accept any returns by way of Tony Abbott’s I’ll turn back the boats policy – why should impoverished 3rd world countries have to deal with more refugees than the large numbers they already have. As Indonesia stated: not our problem, and that should the boats be intercepted by Australian officials, then the people become our problem.

    Quite right, nothing obliges us to take refugees other than the “outdated” UN Convention. Yes indeed, we can become selfish, self-centered and isolationist.

    How realistic is that fear? Each case of course is judged on it’s merit, and fears have included being a political dissident for democracy, organising freedom rallies etc for which the penalty is death. A couple relating to women have in recent times been added including the fear of genital mutilation. In legal terms I believe that the criteria is rather strict being what lawyers call the balance of probabilities. This compares with the balance of possibilities. Therefore the person’s fear must be a probability rather than just a possibility.

  20. Russell, indefinite detention fitted in very nicely with Howard’s War on Terrorism. Howard being George Bush-lite sought to ape Gitmo.

  21. Min, it certainly does fit with the dog whistle of the liberal party. How else to get the people on the lower end of the income scale to vote against their own financial interests. This could be seen as clever politics, or more probably better described as opportunistic. Another example of this is that wonderful liberal speciman Scott Morrison speaking out about a disposesed child not being able to attend his family’s funeral. Yet the next day Tony Abbot goes on to describe Morrison as ‘one of the most compassionate members..’ this sort of stuff is just plain repugnant.

  22. Russell, while changing over into my psychologist’s hat, I think that a good mental exercise would be a psychological profile of certain persons. Mobius and Pip have already done some excellent work on this and so…a thought for the future..we put our heads together and come up with a unique topic. Hey guys, what about it! Email me.

  23. Russell, I should have added..that’s exactly it, how indefinite detention/excising of the islands came about..it was Howard aping George Bush.

  24. “The thing is she and her children can return to Sri Lanka if they so choose and I very much doubt that she would suffer the things she fears, It makes no ”

    Contradiction here. The lady has been declared a legitimate refugee. This can only occur if she is deemed to be in danger if she returns to her country.

    There would be no case to dispute id this was not the case.

    Iain, rationalize the facts all you want.

    It is the procedures that are being debated, not whether the woman can return or not.

    There is no procedural justice in the way it works now.

    It is not even a debate about boat people. It is a debate about our legal system.

    In fact it is about more than refugees. It is about the power theses agencies have over anyone that comes in contact with them

    There must be the ability for the judiciary to scrutinize all government bodies, including security agencies.

    .

  25. CU

    Contradiction here. The lady has been declared a legitimate refugee. This can only occur if she is deemed to be in danger if she returns to her country.

    No you misunderstand the criteria for declaring someone a “refugee” it is all about thesubjective fear of the claimants rather than there being any objectively verified threat. There in lays one of the major problems with the UN convention and its something that the well meaning don’t seem to appreciate.

  26. Iain, if Abbott becomes PM I will leave the Public Service. But I’ll stay in the country. I will have to, as all the boats leaving will be FULL. 🙂

  27. Iain, if you don’t know what a term means..then just ask. There are many fine folk on this blog who will help once they know that a question is genuine.

  28. Migs
    If the boats are full of minions of the left then the place will be better for their leaving however I doubt that many will actaully leave. 😉

    Min
    I know precisely what is meant by “procedural Justice” its just that I don’t think that allowing appeals will make much difference to the outcomes, and as I asked earlier what happens if some sort of appeal or review is allowed and the security accessment still comes back as negative? Will you still complain about the fate of these would be immigrants?

    Or do you think people should be able to endlessly appeal until they are accepted?

  29. So Iain, what is your solution. If a person is found to be a genuine refugee, stateless, and a security risk..what is your plan for this person?

    I know what mine is, but I thought to ask you first.

  30. “Or do you think people should be able to endlessly appeal until they are accepted?”

    Another red herring. This was Howard’s ploy. He set it up so they could not appeal, full stop.

    Are you aware that the courts, have said this is not on. That is why Nauru, and the exercising of much of Australia, will no longer work.

    I do believe that one had the right to know, and the right to challenge what they have been judged on.

    That is procedural fairness.

    Anything else id injustice.

    Iain, why not address the topic. If you get a bill from taxation and told to pay up. How would you react, if you believed they had got the facts wrong.

    Would accept if told, pay up or else.

    I believe not. You would be screaming that it was not fair and not justice.

    That is all that is being claimed in this appeal to the courts.

    Why are you so upset.

  31. With much thanks to Dassan for alerting me to this…

    However, Mr Prince said there was a reasonable chance a High Court action brought by one of the 51 – a Tamil detained for more three years in Melbourne – would succeed.

    That would force more court-ordered change in Australia’s mandatory detention system, possibly including a review of ASIO’s decision plus conditional release into the community for some of those detained.

    Because most of the 51 asylum-seekers have been found to be refugees, they cannot be lawfully deported, but nor can they be released, theoretically consigning them to a lifetime of detention.

    “Everybody can see the problem – somebody just needs to have the courage to do something about it,” Mr Prince told The Australian yesterday.

    Highlighted text is clearly the obvious solution to the problem. The current situation of possibly a lifetime of imprisonment without having been convicted of any crime is contra to the thinking of every decent human being.

    http://www.theaustralian.com.au/national-affairs/immigration/asylum-seekers-granted-visas-despite-asio-security-findings/story-fn9hm1gu-1226382005003

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