Asylum Seekers Subject to Unfair Treatment

[Camikaze]

And water is wet.

But that was the unanimous decision by the Australian High Court as they today announced that asylum seekers arriving by boat should not be denied access to the courts.

BBC Article

Australia's highest court has backed migrant claims of unfair laws as the government tries to strengthen borders.

Two Sri Lankans migrants had argued that laws barring them from appeal in Australia's courts were unfair.

A high-powered legal team worked for free to support the case, which has far-reaching implications.

Successive Australian governments have held refugee claimants in detention and barred access to appeal if their claims to asylum were denied.

Lawyers for the migrants argued that this placed the decisions of immigration officials - under whose authority the asylum-seekers are held and assessed - above the law.

The issue is highly toxic for the minority government of Prime Minister Julia Gillard, who had made election promises to discourage new refugee inflows to the country.

The legal dispute hinged on the distinction made by the government between asylum seekers who arrive by plane and those who come by ship since 2001.

Unanimous
Boat arrivals are placed in detention; their status is assessed by contractors of the Immigration Department and if denied, they have had - until now - no right of appeal in Australia's courts.

But those who arrive by plane are not automatically detained - and do have the right of appeal if their claim to refugee status is denied.

The seven judges of the High Court of Australia were unanimous in their ruling.

They said the two Sri Lankan Tamil men who arrived in October 2009 - known simply as M61 and M69 - were denied "procedural fairness".

Attorney-General Robert McClelland said the judgement could force a change to current laws and policies and would need to be examined carefully.

The conservative opposition has said it wants much stronger laws, and has warned that this court ruling will be a nightmare for the legal system which will become clogged by appeal cases for years to come.

One of the lawyers for the two men, David Manne, says the decision will pave the way for other asylum seekers to challenge unfavourable decisions in Australian courts.

"The implications of this decision are very significant," he said.

Ms Gillard's minority government relies on support from the Green Party to stay in power; the Greens have long been critical of the harsh immigration laws.

But many Australians dislike the prospect of many more migrants arriving in the country.

The Labor government also wants to set up a regional asylum centre in East Timor.

More in depth article:

Spoiler :

A High Court decision on asylum seekers is threatening to undermine the Federal Government's offshore processing system.

In a judgment handed down today, the court upheld a challenge mounted by two Sri Lankan Tamil asylum seekers who had their refugee claims rejected.

The men wanted to challenge that decision in the courts but were prevented from doing so because they were being held in an offshore detention centre on Christmas Island.

However, in a unanimous decision, the High Court has ruled that was an error of law and that the two men were denied procedural fairness when Government contractors reviewed their case.

The decision calls the entire Commonwealth system of offshore processing for asylum seekers into question, with Opposition immigration spokesman Scott Morrison saying the process has been "thrown into chaos".

The court found the Federal Government cannot deny access to the nation's court system to those asylum seekers who arrive by boat onto an area excised from Australia's migration zone.

Not only is this a win for the two Sri Lankans, but it could apply to any asylum seekers denied access to the courts all the way back to when the Migration Act was changed by the Howard Government almost a decade ago.

The Howard government introduced legislation, supported by Labor, to excise thousands of islands from Australia's migration zone.

The express aim was to deny all asylum seekers arriving by boat access to Australia's court system when it came to reviewing rejected refugee claims.

But the High Court has ruled that because the Immigration Minister decides to apply the Migration Act to every asylum seeker's application for protection or refugee status, asylum seekers should also be afforded procedural fairness in the review of the assessment of their claims.

In other words, asylum seekers from Christmas Island should not be treated differently under Australian law when it comes to applying for protection.

The men, both alleged supporters of the paramilitary Tamil Tigers, arrived on Christmas Island last October claiming they would be persecuted if sent back to Sri Lanka.

The High Court has ordered the Commonwealth and Immigration Minister Chris Bowen to pay costs.

A 'great decision'

The coordinator of the Refugee and Immigration Legal Centre, David Manne, initiated the action on behalf of the two Sri Lankan Tamils.

Their asylum claims have been rejected and could be revisited by the Independent Merits Review, but not reviewed in the courts.

Mr Manne says they had a big win today.

"The attempt to keep these people outside Australian law and the protection of Australian courts has failed. This is a great decision for the rule of law in this country," he said.

"The High Court has unanimously ruled that these decisions for our clients were unfair and unlawful because the Government was not applying ordinary Australian laws to decisions on these life-or-death matters.

"So we call on the Government to publicly confirm that it will respect the court's decision and give all these people a new decision-making process that complies with the ruling of the court.

"That is, decisions must be made fairly and in compliance with ordinary Australian law."

Mr Manne says asylum seekers who have their refugee claims rejected will now have access to the Australian court system.

"The decision applies to every asylum seeker in Australia subject to the offshore processing regime," he said.

"It means that not a single one of them should be removed without their consent until they have had their claims assessed through a new and lawful process in accordance with the High Court's ruling.

"Essentially the solution now is to ensure that all asylum seekers are put on equal footing and no-one is discriminated against because of where or how they arrived in Australia."

Mr Manne says the decision will also apply retrospectively to asylum seekers who have been the subject of offshore processing since 2002.

"There's no doubt that this decision will also result in looking very carefully at what has happened in relation to the decisions of many asylum seekers subject to this offshore processing regime; this scheme which the High Court has now found to be fundamentally flawed," he said.

'Diabolical decision'

The immigration minister at the time the law was changed, Philip Ruddock, accepts the High Court ruling but says it will clog up Australia's legal system.

"In terms of being able to manage Australia's borders this will be a diabolical decision. It will increase rapidly the numbers of people seeking to access Australia," he said.

"I don't dispute the court's entitlement to come to a view. But the outcome will have very significant implications for Australia and the capacity to be able to manage our borders."

Mr Ruddock says the courts will struggle to cope with the number of cases.

"Once they access it for a preliminary decision if they don't like the outcome they will take a further appeal," he said.

"If they don't like that outcome they will take a further appeal. In the end all of them will end up before the High Court.

"I think the High Court will have a very, very, significant case load which they will have difficulty in managing."

Greens action

The Greens say they will introduce a bill next week giving all asylum seekers access to the courts.

Greens Senator Sarah Hanson-Young says the bill will ensure that all asylum seekers are able to ask the courts to review their cases.

"To ensure that we can deal with this problem and we don't leave unnecessarily asylum seekers languishing anxiously in the detention system - that is unfair, that is unjust," she said.

The Government has clearly been prepared for an adverse ruling from the High Court.

Mr Bowen says the decision has significant ramifications and he will make recommendations to Cabinet in the next few weeks on how the Government should respond.

"It's a judgment that has the potential to elongate the amount of time it takes to process refugee claims - that's what I mean by having significant ramifications," he said.

"The High Court has not found that the excision of certain islands in Australia is unconstitutional, the High Court has not in any way cast judgment on the mandatory detention regime in Australia.

"The High Court have found that refugee assessments and independent merits reviews are subject to judicial appeal, judicial review in certain circumstances."

Mr Bowen says the Government will continue processing refugee claims despite the High Court ruling.

Attorney-General Robert McClelland says the court judgment will have to be carefully examined.

"Orders have been made in favour of the claimants. We'll obviously have a look at that and the repercussions [as to] whether it's necessary to consider any additional review mechanisms," he said.

So is this decision a good or bad one? Is it unfair to deny asylum seekers access to the, in this case, Australian court system? Is it unfair to differentiate between those asylum seekers who arrive by plane and those who arrive by boat?

 

[Tee Kay]

I don't usually comment on this topic, though I will say that they have been denied access to the courts until now is a national disgrace.

Is it unfair to differentiate between those asylum seekers who arrive by plane and those who arrive by boat?

They are still, usually, illegal immigrants. "Boat People" are like Mexicans trying to cross north in the Rio Grande, promised a better life by smugglers, skipping the legal process; in our case the Rio Grande is the limit of Australia's territorial waters.

Whether it's unfair; well, yes, it probably is. If they have the means to get on a plane and apply for asylum the usual way then they would have taken it. It's like punishing them for being poor refugees. But at the same time, it's still illegal entry into the country.

 

[Camikaze]

I would've thought that unless you are actually making an illegal landing onto Australian soil, then you are not entering illegally. Being intercepted off the coast and declaring you are seeking asylum (which is the first realistic opportunity for arrivals to do so) strikes me as being just as legitimate as coming off a plane and declaring you are seeking asylum. In both cases you are entering into Australian territory and declaring your intentions at the first available opportunity, so I'm not sure why one should be more illegal than the other.

 

[Masada]

Eh, I might not like this method of immigration all that much - illegal immigration. But I won't begrudge them the right to appeal to the Courts.

Anways, I, for one, welcome our new Australians. (I was getting mightily uncomfortable sending Rohingas and Hazaras back to the killing fields).

 

[wolfigor]

I would've thought that unless you are actually making an illegal landing onto Australian soil, then you are not entering illegally. Being intercepted off the coast and declaring you are seeking asylum (which is the first realistic opportunity for arrivals to do so) strikes me as being just as legitimate as coming off a plane and declaring you are seeking asylum. In both cases you are entering into Australian territory and declaring your intentions at the first available opportunity, so I'm not sure why one should be more illegal than the other.

In general I agree with you, there should not be any difference in the treatment of asylum seekers depending on the means of arrival (sea or air).

However there is a difference.
when a boat enter the territorial water of Australia they are inside Australian territory (thus illegal immigrant), but when they land with airplane, technically, they are not in Australian territory.

 

[Arwon]

Doesn't matter. People have the right to seek asylum. There's nothing "illegal" about attempting that.

 

[Arwon]

Also, this and the other two high court decisions (upholding that people on Youth Allowance can deduct education expenses on tax, and ruling South Australia's anti-bikie laws unconstitutional) just highlight in huge letters exectly why we should never have elected judges.

Also also, it doesn't directly undermine offshore processing, but since the entire reason Howard and Rudd went the offshore route was as an expedient to deny asylum seekers justice, hopefully this brings us closer to the ending cruel and expensive farce of interning people on places like Christmas Island.

 

[Camikaze]

In general I agree with you, there should not be any difference in the treatment of asylum seekers depending on the means of arrival (sea or air).

However there is a difference.
when a boat enter the territorial water of Australia they are inside Australian territory (thus illegal immigrant), but when they land with airplane, technically, they are not in Australian territory.

Perhaps there is something in that. However, if people do not have access to a flight, how else do they apply for asylum within Australia? If you are entering Australian territory with the sole purpose of claiming asylum, and do so at the first available opportunity, I fail to see what is wrong with that. Shutting out people who cannot afford to pursue what would seem the more obviously legal method (taking a plane and applying for asylum at the immigration desk) would most likely shut out the more genuine claims.

Doesn't matter. People have the right to seek asylum. There's nothing "illegal" about attempting that.

This is the painfully obvious point that is all too often absent from the debate.

 

[Tee Kay]

Doesn't matter. People have the right to seek asylum. There's nothing "illegal" about attempting that.

AFAIK, asylum seeking is not illegal, but the method of entry is.

 

[Camikaze]

AFAIK, asylum seeking is not illegal, but the method of entry is.

Seems a technicality specifically designed to dodge our responsibilities with regards to asylum seekers. There are good reasons to not allow for illegal entry into Australian waters without express permission, but when the aim is to prevent poor people from seeking asylum, then it's misguided to say the least.

 

[wolfigor]

Disclaimer: I am not Australian and I'm not familiar with Australian immigration policies, so be patient with me (and explain if I need it).

Perhaps there is something in that. However, if people do not have access to a flight, how else do they apply for asylum within Australia?

What about applying at an Australian embassy?
That's the first opportunity isn't it?

Illegally entering the country and the asking for asylum is really forcing the hand of the recipient state.
When that happens Australia gets a problem: they entered illegally, and "skipped the queue" of those that follows the procedures.
Both Australia and the more lawful immigrants are damaged.

AFAIK, asylum seeking is not illegal, but the method of entry is.

That was was exactly my point, thank you for underlining it.

Doesn't matter. People have the right to seek asylum. There's nothing "illegal" about attempting that.

Foreigners have right to ask for asylum, Australia have right to deny it.
There are also immigration rules and asylum seekers are not supposed to be exempted from them.

 

[Tee Kay]

The problem, I think, is that Australia sees Boat People not as real people with real financial difficulties feeling real dangers at home but as just another group of immigrants. They are judged, like other immigrants, primarily in terms of what benefits they would bring to Australia, and whether that would outweigh the cost of assimilating them, and rare are Boat People who are English-speaking, preferably Western, professionals from middle class or upper class background. Because they are just another bunch of immigrants, they are "queue jumpers" who cheat the system, and therefore criminals who should not have the privilege of living in Australia.

The whole rotten system needs an overhaul, but a new mentality towards asylum seekers and immigrants is needed in general.

 

[Camikaze]

What about applying at an Australian embassy?
That's the first opportunity isn't it?

If we take this specific case as an example, I'm not entirely sure that it would've been possible for the two Tamils in question to stroll to the high commission in Colombo.

Illegally entering the country and the asking for asylum is really forcing the hand of the recipient state.
When that happens Australia gets a problem: they entered illegally, and "skipped the queue" of those that follows the procedures.
Both Australia and the more lawful immigrants are damaged.

The problem is that "the queue" doesn't really exist in any meaningful way. Australia does not have diplomatic representation everywhere, and certainly even where it is, people do not always have access to it. And when asylum claims largely result from immediate danger, it is hardly realistic to expect people to join a queue, rather than to get the hell out of wherever they are.

I'm sure someone can explain it better than I, but it isn't a simple of matter of hopping in line and waiting your turn.

I gather there is some formal queue system to do with the UN and Indonesia (Masada may be able to enlighten us), but that it is neglected by the Australian government to the extent that refugees are left with no choice but to skip it.

 

[wolfigor]

The problem, I think, is that Australia sees Boat People not as real people with real financial difficulties feeling real dangers at home but as just another group of immigrants. They are judged, like other immigrants,

Don't other immigrants may have financial difficulties feeling real dangers at home?
In my view it will be fair to evaluate all immigrants on the same level, possibly before they enter the national territory.
Coming from a troubled country may grant you more "points" but that's it.
Everytime somebody forces the system there is somebody else that cannot get the opportunity of better his/her life because of it.
Fairness is to threat all with the same rules without privileges.

judged, like other immigrants, primarily in terms of what benefits they would bring to Australia, and whether that would outweigh the cost of assimilating them

isn't that exactly what should be the duty of the state to its citizens?
A country, it's government and institutions, have duty to serve the wellbeing of their citizens, but it doesn't have duty to do the same for foreigners.

 

[Arwon]

isn't that exactly what should be the duty of the state to its citizens?
A country, it's government and institutions, have duty to serve the wellbeing of their citizens, but it doesn't have duty to do the same for foreigners.

No, that's not it at all. Under the Refugee Convention there's no mention of "usefulness" of refugees. The normal tests for migration do not, and should not apply, because refugees are not admitted under a skilled migration program.

The "queue" is a myth. Only a small portion of refugees globally have official UN refugee documents and only a fraction of them get re-settled each year.

More to the point, we have a quota of UN refugees each year, and it's deliberate government policy to create "queue-jumpers" by adopting a zero-sum policy whereby every accepted asylum case reduces the UN-sponsored refugee quota by 1.

Another problem is this:

Spoiler :

Few countries in the region are signatories to the refugee convention, so there's no ability to seek asylum in those countries. So there's certainly no "queue" in our region, even if there is a more ordered process elsewhere.

 

[Camikaze]

Other immigrants might be facing hardships, but if the hardships they are facing are that bad, then they can apply for asylum too. It's kinda ridiculous to make someone whose life is threatened in their country of origin to wait whilst the claim of a middle class skilled British immigrant is processed. Assuming the existence of some sort of system where that would be possible in the first place. We have a legal and moral obligation to allow genuine asylum seekers. They are subject to a different set of rules than other immigrants.

 

[Tee Kay]

Don't other immigrants may have financial difficulties feeling real dangers at home?

Let's talk about real asylum seekers, then. You know, the kind we sent back to Afghanistan and got killed by the Taliban?

Everytime somebody forces the system there is somebody else that cannot get the opportunity of better his/her life because of it.

Right. Which is why the immigration system needs work so that skilled migrants can arrive while we also help refugees. The current policy of locking them up for years in limbo in overcrowded prisons on a desert island is just a disgrace.

Besides, the number of Boat People arriving in Australia is utterly dwarfed by the number of skilled migrants, which is in turn outnumbered by family sponsered migrants IIRC.

A country, it's government and institutions, have duty to serve the wellbeing of their citizens, but it doesn't have duty to do the same for foreigners.

Maybe it's just idealistic bullcrap, but giving help to those knocking on your front door while fleeing death and destruction is the humanitarian thing to do.

 

[wolfigor]

Let's talk about real asylum seekers, then. You know, the kind we sent back to Afghanistan and got killed by the Taliban?

Don't we already help them by sending our soldiers to save them from the Talibans?
Should we then take all 28 millions Afghans in the west? Why only those few that escape?

However asylum seekers very rarely get repatriated and sooner or later they become immigrants... shouldn't they pass they same selections as the others?

The current policy of locking them up for years in limbo in overcrowded prisons on a desert island is just a disgrace.

This is one point where we agree, and it's where things get complicated.
There is the basic reality that we cannot take-in every single person knowing at the door: resources are not unlimited.
(Should Australia take all 28 millions Afghans if they would come?)
This means that the state needs time to sort and prioritize claimants (not easy due to non-existing documents), and it also means that a large percentage have to be sent back
One of the problems is that the original countries of many refugees and emigrants do not want their citizens back.

From this point of view an oversea selection, in theory, is a better solution and reduce the needs to lock people.

Besides, the number of Boat People arriving in Australia is utterly dwarfed by the number of skilled migrants, which is in turn outnumbered by family sponsered migrants IIRC.

I have no way to confirm nor deny this point... I do not have sources for the numbers.

Maybe it's just idealistic bullcrap, but giving help to those knocking on your front door while fleeing death and destruction is the humanitarian thing to do.

It isn't bullcrap for me and you, but it is for the state.

 

[Arwon]

However asylum seekers very rarely get repatriated and sooner or later they become immigrants... shouldn't they pass they same selections as the others?

Not according to law, humanity, or common sense. You're still talking as though there's some sort of orderly process by which refughees flee their homelands.

 

[Tee Kay]

This means that the state needs time to sort and prioritize claimants (not easy due to non-existing documents), and it also means that a large percentage have to be sent back

Prioritize according to what? Usefulness? As Arwon said, refugees apply under a separate scheme from the skilled migrations program.

From this point of view an oversea selection, in theory, is a better solution and reduce the needs to lock people.

As Camikaze said, Australia does not necessarily have the resources for that.

I have no way to confirm nor deny this point... I do not have sources for the numbers.

According to the Immigraton Department, there were 168,623 places 64% of which are skilled (so I'm wrong there, I thought family sponsered migration was higher). During the same period 13,770 visas were granted under the humanitarian program.