The High Court of Australia issued a decision on 11 November concluding that asylum seekers initially detained on Christmas Island, a so-called “excised offshore place”, are entitled to access to courts and to the same legal protections and procedural fairness as asylum seekers on the mainland.
The unanimous seven judge decision in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia  HCA 41 (11 Nov 2010) determined that the process pursuant to which two Sri Lankan Tamil asylum seekers were found not to be persons to whom protection obligations were owed was unlawful because it was a “non-legal” or “non-statutory” process which “did not treat the provisions of the Migration Act 1958 (Cth) and the decisions of Australian courts as binding, and further, failed to observe the requirements of procedural fairness.” The two stage “non-legal” asylum process at issue has been in effect since 2008.
While the decision does not directly affect the Pacific Strategy, offshore detention practises, or the existence of the excised offshore places, the benefit of the strategy sought by past Governments and by the current Coalition Government to minimise the legal process afforded to asylum seekers within the excised offshore places by denying access to courts and judicial review has now apparently been eliminated by the High Court decision.
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Here is a lengthy excerpt from the decision which provides some of the historical background beginning with the 2001 incident involving the MV Tampa:
29. In 2001, the Parliament enacted six Acts, one after the other, which affected the entry into, and remaining in, Australia by aliens. Those six Acts were all assented to, and for the most part came into operation, on the same day. The first of those Acts, the Border Protection (Validation and Enforcement Powers) Act 2001 (Cth) (“the Border Protection Act“), sought to validate certain actions taken between 27 August 2001 and the commencement of the Act. The actions in question were actions taken by the Commonwealth, by any Commonwealth officer, or by any other person acting on behalf of the Commonwealth, in relation to the MV Tampa and certain other vessels, and actions in relation to persons who were on board those vessels during the relevant period. The circumstances that gave rise to those actions are sufficiently described in Ruddock v Vadarlis. In addition, the Border Protection Act, and several of the other five Acts, amended the Migration Act to change the way in which persons who arrived in, or sought to enter, Australian territory without a valid visa were to be dealt with.
30. Those changes had a number of features of immediate relevance to the present matters. First, certain Australian territory, including the Territory of Christmas Island, was excised from the migration zone, thus introducing the category of places called excised offshore places. A person who entered Australia at an excised offshore place, after the excision time, and who became an unlawful non-citizen because of that entry, was identified as an “offshore entry person”. The Migration Act was amended, by inserting s 46A, to provide that an application for a visa is not a valid application if it is made by an offshore entry person who is in Australia and is an unlawful non-citizen.
31. One of the consequential provisions made for dealing with unauthorised arrivals in places excised from the migration zone was to provide, by the insertion of s 198A into the Migration Act, that offshore entry persons might be taken from Australia to a country declared under that section. The new s 198A(3) provided that the Minister might declare a country for the purposes of that section by declaring that, in effect, the country in question provides access for persons seeking asylum to effective procedures for assessing their need for protection; provides protection for persons seeking asylum pending determination of their refugee status; provides protection to persons who are given refugee status pending their voluntary repatriation to their country of origin or resettlement in another country; and meets relevant human rights standards in providing that protection. An offshore entry person being dealt with under that provision is taken not to be in immigration detention. The Republic of Nauru and Papua New Guinea were declared countries and persons were removed from Australia to those places in exercise of the power given by s 198A.
32. The Department referred to the procedure contemplated by s 198A, of removing offshore entry persons from Australia to another country, as the “Pacific Strategy”. Removal of offshore entry persons to those countries began in 2001 but ceased in 2008.
33. While the so-called Pacific Strategy was operating, claims by offshore entry persons taken to a declared country that they were owed protection obligations were assessed according to procedures specified by the Department. The document that recorded those procedures began by stating Australia’s international obligations in the following terms:
“Australia’s primary obligation under the Refugees Convention is not to refoule (return) a refugee, either directly or indirectly, to a country where they have a well-founded fear of persecution for a Convention ground. Australia’s protection obligations extend to refugees who have entered Australia’s territorial seas. The Pacific strategy in no way detracts from these obligations.” (emphasis added)
Because persons dealt with under these procedures were not in Australia, but were in either Nauru or Papua New Guinea, s 46A of the Migration Act did not apply to prevent their making a valid application for a visa. But being outside Australia, and in a declared country, such persons could apply for only certain classes of visa and, in particular, could not apply for a Protection (Class XA) visa.
34. It is not necessary to examine further the operation of the arrangements that were made to effect the Pacific Strategy. What is presently important is that the changes to the Migration Act that were worked by inserting s 46A and, in consequence, inserting s 198A, are to be seen as reflecting a legislative intention to adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act. As the document recording procedures for administration of the so-called Pacific Strategy said:
“The new legislation underpinning the Pacific strategy has two mechanisms that reflect Australia’s obligations under Article 33 of the Refugees Convention and other Conventions. These mechanisms are:
. a framework to enable the Minister for Immigration and Multicultural and Indigenous Affairs to decide whether to allow an application for a visa to be made by unauthorised arrivals on excised offshore places (offshore entry persons) (while in Australia), following consideration of protection obligations under the relevant United Nations Conventions; and
. the ability to take unauthorised arrivals who have entered Australia at excised offshore places (such as Ashmore Reef and Christmas Island) to another country provided that the Minister for Immigration and Multicultural and Indigenous Affairs has declared under s 198A of the Migration Act 1958 that the country [meets the requirements described earlier].” (emphasis added)
The Minister’s announcement
37. On 29 July 2008, the Minister announced that the Government had decided to strengthen and enhance the RSA [Refugee Status Assessment] process. This announcement followed an earlier announcement by the Government “that asylum claims of future unauthorised boat arrivals would be processed on Christmas Island”.
40. The adoption of these procedures, and their application in these particular cases, can only be understood as implementing the announcements that have been mentioned: one that the Pacific Strategy would no longer be followed; the other that steps of the kind ultimately recorded in the RSA Manual and the IMR Manual [“Guidelines for the Independent Merits Review of Refugee Status Assessments”] would be undertaken as the means of meeting Australia’s obligations under the Refugees Convention and Refugees Protocol, instead of following the Pacific Strategy. And if the power to remove offshore entry persons from Australia under s 198A was not to be used, the only statutory powers that could be engaged to avoid breaching Australia’s international obligations were the powers under ss 46A and 195A.
The RSA Manual
41. The purpose of the RSA process was described in the RSA Manual as being “so that the Minister … can be advised whether Australia’s protection obligations under the Refugees Convention are engaged”. It was said that “[c]onsideration of the exercise of the Minister’s power under s 46A to allow a visa application to be made will occur following assessment of protection obligations as outlined in this manual”.
42. Much emphasis was given in the Manual to the RSA process being “a non-statutory process”. But the source of the power to undertake the process was not identified. Rather, the Manual described what were said to be some consequences of the process being “a non-statutory process”. In particular, it was said that “[t]his means that the Migration Act, the Migration Regulations 1994 … and Australian case law on the interpretations of the definition of a refugee and ‘protection obligations’ do not apply”, though it was said that “officers should be guided by these as a matter of policy”.
43. The Manual said that the common law rules of natural justice or procedural fairness were to be applied “to safeguard the fairness of the RSA procedures”. The particular procedures laid down in the Manual were described as being “modelled closely on the onshore [p]rotection visa determination procedures”. In that respect, it may be noted that, although the process was repeatedly described as “non-statutory”, the Manual proceeded on a footing that suggested that some provisions of the Migration Act applied to at least some aspects of the process. So, for example, the directions given in the Manual about seeking further information or comment from a claimant proceeded on the footing that what the Migration Act describes as “non-disclosable information” need not be disclosed, regardless of whether procedural fairness would require that to be done.
44. If, at the end of the RSA process, an offshore entry person was found to be owed protection obligations, the Manual described the consequence as being that a submission would be prepared by the Department for the Minister “advising the Minister that Australia’s protection obligations are engaged and seeking his/her agreement to lift the bar under s 46A of the Act”. By contrast, if the officer making the assessment determined that the person was not a person to whom Australia has protection obligations, no submission would go to the Minister. Instead, an opportunity would be given to seek the review of the decision under the IMR process. If the outcome of the review was negative, an opportunity would be given to the person to provide any new or additional information which he or she wished the Department to take into consideration. A further assessment would be undertaken by the Department of whether any other international treaty obligation was engaged in the particular case. If no other international obligation was engaged, the process for removal of the person from Australia would begin.
The IMR Manual
45. As would be expected, much that was set out in the IMR Manual followed or reflected what was said in the RSA Manual. It is therefore not necessary to do more than mention some particular matters arising from the IMR Manual.
46. The system of Independent Merits Review was described, in the IMR Manual, as having been introduced as one of the new arrangements announced by the Minister on 29 July 2008. Previously, reviews of departmental assessments of refugee status had been undertaken by a senior officer of the Department.
47. Much emphasis was given in the IMR Manual (as it was in the RSA Manual) to the RSA process and the IMR process being “non-statutory”. Again, however, the Manual did not seek to identify what power was being exercised. Rather, the consequences said to follow from the process being “non-statutory” were identified. In particular, it was said in the IMR Manual that independent reviewers “may still be guided by the legislated interpretations of the Refugees Convention in sections 36 and 91R-91U of the Act and Australian case law on the interpretation of ‘protection obligations'”, but it was also said to be “important to note that these sources of interpretation are not binding authorities”.
48. The IMR process was subject to what the Department described as “a quality assurance check before an offshore entry person would be notified of the outcome of the IMR review”. That process, now supervised by the Registrar of the Refugee Review Tribunal (while on secondment to the Department), was said to “primarily [involve] checking IMR recommendations for spelling, grammatical, cut and paste or other obvious errors”. But it was a process that may “result in a suggestion being made to an independent reviewer that he or she may wish to consider an additional matter, consider more up to date country information, or clarify parts of a decision-record or recommendation”.
49. At the end of the review, the reviewer was to make a recommendation about whether Australia had protection obligations to the claimant. If the reviewer concluded that Australia did have protection obligations to the claimant, a departmental officer would prepare a submission to the Minister for consideration of the exercise of power under either s 46A(2) or s 195A. If the reviewer concluded that Australia did not have protection obligations to the claimant, no submission would be made to the Minister. Steps of the kind described in connection with the RSA process for considering engagement of any other relevant international obligation would be undertaken and, subject to that, processes for removing the claimant would then begin.
Click here for High Court decision.