LEGAL REMEDY FOR DETAINEES IN KP, MANTRA & ITAs

".... To hold that the Executive can act outside Australia's borders in a way that it cannot lawfully act within Australia would stand legal principle on its head. -- Hayne J & Bell J, s169/2015 [#13]"

Friends, we, the refugee activist community, have long been concerned about those asylum-seekers detained at various APODs & ITAs, soon after they were brought into Australia under the Medevac Legislation. Their continuing plight had been highlighted by recent COVID-19 Crisis (Feb-Apr, 2020), and bringing their issues into consciousness of Australian general public. The Medevac Legislation has now been repealed by the government and neither the government departments nor human rights lawyers appeared to have been following upon their cases. In any event, I am suggesting here a possible legal remedy, in accordance with Australia's statutory provisions, to bring an end to these cases of unwarranted detention. My conclusion is that the Immigration Minister to 'have it exercised' his 'personal and non compellable power' under Section 195A of Migration Act and then, to immediately issue the substantive visas to those under detention [#22].

Protest marking 7 years detention

In order to grasp the complexity of this situation, I have uploaded two reasonably lengthy reports. One is written by Mary Crock and Daniel Ghezlbash in 2010 [#19] and other by the Kaldor Centre in 2019 [#18]. Assisted by these reports, along with the High Court judgements in M61/2010 and M68/2016, one can evaluate current state of affairs for these asylum-seekers.

LEGAL RESPONSIBILITY ON ASYLUM PROCESSING AND WELFARE

Contrary to government assertions, Australia has legal responsibility for these offshore asylum-seekers from the moment when control and authority were first exercised at the interception at sea (see, #18). Such legal responsibility might not arise, as has been in the case of bilateral boat turn-back agreement with Indonesia, where the intercepted person(s) were then transferred safely into UNHCR and another sovereign government [#21]. However, in the cases of transfer to Nauru and PNG, the Australian government have continued to exercise control and authority over those asylum-seekers. Therefore, Australia have legal responsibility with respect to Refugee Convention and the statutory duty under its Migration Act of 1958. As has been explained on previous posting at length in "ERRONEOUS OFFSHORE LAWS", and along the line with M61/2010 HCA judgment [#7], Australia has statutory duty (i) to grant the refugee person a protection visa and (ii) not to return the refugee person to where he/she may face dangers and persecution [#23].

Detention Protests, Brisbane QLD

INVALID PROCESSING AND STATUTORY DUTY

On offshore cases, the Australian government assigned private contractors to conduct refugee interviews and gave instruction to process under the laws of Nauru and PNG. That process was legally invalid and, most importantly, the process does not fulfil Australia's statutory duty under Migration Act of 1958. Again, unless and until such refugee person -- whichever way being processed -- has been granted a substantive protection visa, Australia can not said to have complied with the UN Refugee Convention. This fact was clearly spelled out in the M61/2010 HCA judgment [#7]:

"70. .... But in order that Australia not breach the international obligations it had undertaken in the Refugees Convention and Refugees Protocol, consideration would be given, in every case, to the exercise of the only statutory powers available .... the powers given by ss 46A and 195A. Having decided that he should consider the exercise of power under s 46A or s 195A with respect to every offshore entry person who thereafter claimed that Australia owed that person protection obligations, the Minister required his Department to undertake the inquiries necessary to make an assessment and, if needs be, review the conclusion reached."

In M61/2010 case under the Rudd/Gillard government, the asylum-seekers were detained in Christmas Island detention centre. The Immigration Officials have made primary interviews and the review process was overtaken by the private contractors. The government had made specific statement to the High Court that these processes (interviews and reviews) were undertaken under 'non-statutory executive powers' as [#7]:

"15 The Commonwealth and the Minister submitted that both the assessments and the reviews of the assessments were undertaken in exercise of non-statutory executive power under s 61 of the Constitution. It followed, so they submitted, that there was no obligation to afford procedural fairness in the conduct of those assessments and reviews, and that it mattered not whether those who undertook the inquiries had misunderstood or misapplied the law."

The unanimous decision made by the High Court, as being reflected in above Para 70 was that, whichever way the asylum applications were being processed under whatever form of powers, at the end of the day, the government needs to fulfil the statutory provisions of Migration Act in accordance with Refugee Convention.

In cases of offshore asylum-seekers from Nauru and PNG who have been found to be refugees, now under various detention facilities, they were still not being engaged with Australian refugee laws technically. The Section 195A of law may be appropriate in these cases, as has been indicated in that of historical Tampa refugees in 2001-2008 (see, #19).

THE CONSEQUENCES FOR GOVERNMENT

Inevitably, when considering those offshore asylum-seekers who have already been returned to their countries of origins or being sent to USA and other places, the Australian government will be found violating the Refugee Convention. Also, the government will be found failing to engage with the statutory provisions of Migration Act of 1958; whereas the Australian judicial processes were being side-stepped on offshore asylum-processing. The concerns raised by the High Court judges on M68/2016 now having come to fore [#1]:

"46 Section 198AHA(2) authorised the Commonwealth to give effect to the second MOU including by entry into the Administrative Arrangements with Nauru and the Transfield Contract. ..... Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose. ....... If, upon a proper construction of s 198AHA, the section purported to authorise the Commonwealth to support an offshore detention regime which went beyond what was reasonably necessary for that purpose, a question might arise whether the purported authority was beyond the Commonwealth's legislative power with respect to aliens."

This Australian government violation of Refugee Convention has coming on top of the ABF assault on Bomana53# and the crimes of slavery. Being succinctly noted by Hayne J and Bell J on s169/2015 judgment, the government venturing out offshore processing ostensibly to avoid judicial scrutiny have now resulting all the legal responsibility falling onto its own head [#13]:

"150 To adopt and adapt ..... why should an Australian court hold that an officer of the Commonwealth Executive who purports to authorise or enforce the detention in custody of an alien without judicial mandate can do so outside the territorial boundaries of Australia without any statutory authority? Reference to the so-called non-statutory executive power of the Commonwealth provides no answer to that question. Reference to the royal prerogative provides no answer. Reference to "the defence and protection of the nation" is irrelevant, especially if it is intended to evoke echoes of the power to declare war and engage in war-like operations. Reference to an implied executive "nationhood power" to respond to national emergencies is likewise irrelevant. Powers of those kinds are not engaged in this case. To hold that the Executive can act outside Australia's borders in a way that it cannot lawfully act within Australia would stand legal principle on its head."

Friends, keep up with update on Bomana pages.

-- NetIPR.

Bomana Pages
[#23] http://www.aus4iccwitness.org/node/86
M68/2016 HCA Judgment
[#1] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
M61/2010 HCA Judgment
[#7] http://www.aus4iccwitness.org/legal-resources/20101118_m61-hca-judgment.pdf
Mary Crock and Daniel Ghezlbash 2010
[#19] http://www.aus4iccwitness.org/legal-resources/20100812_asylum-due-proces...
Kaldor Centre Submission 2019
[#18] http://www.aus4iccwitness.org/legal-resources/20190816_medevac-repeal-se...
OSB, Turnback and political cover-ups
[#21] http://www.aus4iccwitness.org/node/30
S195A Migration Act
[#22] http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s195a.html