Asylum seekers: a retrospective

Sri Lankan asylum seekers in detention on Nauru in 2007

I was asked an interesting question this morning (well, interesting to me anyway) by a local media person about whether the seemingly imminent transfer of Christmas Island asylum seeker detainees to Darwin would mean an upsurge in refugee matters being litigated in local Darwin courts.

The simple answer is probably no.  In MZXOT v Commonwealth in 2008 the High Court ruled that amendments to the Migration Act 1958 (Cth) in 2005 meant that neither the Federal Court nor Federal Magistrates Court have jurisdiction to hear judicial review applications relating to ‘primary decisions’ under the Act, and the Court also held that State courts were not vested with jurisdiction to hear such matters.  Consequently only the High Court of Australia can hear judicial review matters concerning decisions dealing with “boat people” asylum seekers.

Conversely though, the High Court held in Plaintiff S157/2002 v Commonwealth that its own jurisdiction to judicially review such decisions was constitutionally entrenched by Constitution s 75(v) and therefore could not be removed by Parliament (or arguably even restricted to any significant extent – see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007)).

On the other hand, in 2001 in Ruddock v Vadarlis the Full Federal Court held by majority that asylum seekers detained on the MV Tampa were not in law imprisoned in a sense that would allow the issue of the writ of habeas corpus, in that they were at all times free to leave and go anywhere they liked – except Australia!

Subsequently the High Court refused the Tampa asylum seekers special leave to appeal the Federal Court decision, effectively because they were now in detention in a foreign country i.e. Nauru or PNG and therefore beyond the effective jurisdiction of the High Court.  Gaudron J said:

If the persons concerned are now detained (a question about which there has been no trial) each would be detained in a foreign country subject to whatever is the law of that country touching that question. That detention, if any, was not the subject of the proceedings in the Federal Court, and, the agreement dated 10 September 2001 between the governments of Australia and Nauru notwithstanding, habeas corpus cannot now issue with respect to that detention, at least in these proceedings. Habeas corpus issues to require justification for the continued detention of a person who is in detention at the time the writ issues; it does not issue to inquire into the lawfulness of detention that is at an end.

The practical result was that, as long as the Howard government persisted with the Pacific Solution, ‘boat people’ asylum seekers were effectively precluded from accessing Australian courts to contest the legality of adverse decisions about their refugee status.  However, the wider practical outcome was that, even under the more summary UN-supervised refugee assessment processes implemented on Nauru and Manus Island, the great majority of asylum seekers were found to be genuine refugees.  Moreover, apart from a small number of the Tampa passengers that New Zealand agreed to accept as a favour, other nations regarded these asylum seekers as Australia’s problem and refused to take them.

Consequently the majority of asylum seekers detained under the Pacific Solution were eventually granted protection visas and allowed into Australia. So much for John Howard’s immortal words: “We will decide who comes to this country and the circumstances in which they come”.  In other words, the Pacific Solution was an expensive failure, although the  political smoke and mirrors Howard employed to strike an ostensibly tough line against asylum seekers had not been fully revealed as bulldust by the time he lost power in 2007.  Moreover, the Howard government had been forced to water down its tough approach by Liberal dissidents including Petro Georgiou, accepting that asylum seeker families with children would not be kept in prolonged detention.

Tony Abbott’s propaganda line that the Rudd government has gone soft on ‘illegal’ asylum seekers ignores the reality that much of this softening occurred during the latter years of the Howard government, largely as a matter of unavoidable necessity.  Rudd has further softened the treatment of asylum seekers, to the extent that his government implemented a speeding up of asylum seeker processing (partially reversed last Friday for Afghan and Sri Lankan asylum seekers), abolished temporary protection visas and made them all permanent, and abolished the practice of the Commonwealth suing successful asylum seekers to recover the cost of their detention.

A balanced assessment would suggest that the ‘pull factors’ constituted by this softened approach are probably a part of the reason for the recent upsurge in arrivals, but part of that softening occurred under Howard in any event.  Moreover,  Abbott is being fundamentally dishonest in denying the relevance of  ‘push’ factors.  The deteriorating security situation in Afghanistan and the recent defeat of the Tamil Tigers in Sri Lanka are obviously important factors in generating increased asylum seeker flows from those countries, just as the improving situation in Iraq has led to a reduction in arrivals from that country.

What does all this mean for the current situation of detained asylum seekers being brought to Darwin because the Christmas Island facility is full?  Most likely Rudd’s gambit of last Friday, suspending processing of Sri Lankan and Afghan asylum seekers for three and six months respectively, will not be sufficient to stem the flow of boat arrivals to any significant extent.  It’s mostly a posture designed for short-term electoral consumption.

As for access to judicial review, as far as I know there is no legal barrier to unsuccessful asylum seekers on Christmas Island challenging the validity of an adverse decision in the High Court.  Indeed Plaintiff S157/2002 v Commonwealth indicates that any attempt to debar access to the High Court would be constitutionally invalid.  However the practical outcome of keeping asylum seekers on remote Christmas Island has been that they can’t readily access legal assistance to launch court challenges.  With some of them now almost certain to be brought to Darwin, the physical constraints on commencing High Court proceedings will be greatly reduced.((It’s a reasonable bet that the Commonwealth is carefully assessing which asylum seekers to bring to Darwin, and selecting only those with the worst chances of successful judicial review.  Even the most passionate civil liberties lawyer is likely to be reluctant to take on a hopeless case on a pro bono basis. ~ KP))

It’s almost full circle back to 1990, when I was part of a group of Darwin volunteer lawyers who began assisting Cambodian asylum seekers detained here to make applications for protection visas.  My daughter Rebecca was just two years old, and she used to have a great time playing with the little Cambodian kids while I took statements from their parents about their horrific experiences at the hands of the Pol Pot and then Hun Sen regimes.  The then Labor Minister for Immigration Gerry Hand was reported to have been so outraged by our actions that he named cows in his hobby farm dairy herd after each of us, and soon afterwards shifted the asylum seekers to Port Hedland where we wouldn’t be able to access them so easily.  Nauru and then Christmas Island were just more extreme versions of the same cynically punitive strategy.  Now some asylum seekers are coming back to Darwin.  Will local volunteer lawyers re-enter the picture?  Watch this space.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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14 years ago

I honestly don’t know what the fuss is about.

Australia was set up on the cheap to establish a naval chokepoint between the Pacific and Indian oceans to further the interest of the British Empire in India and China.
A fair precedent may be construed that only POMEs (prisomers of Mother England) could be imported as a labour force and that since there was plenty of them, consequently no advertised positions vacant – that there was no need for others to apply.

I’m positive that if I phoned the Chinese embassy and dropped on them that I had sixteen kids and wanted a job as a fitter and turner/alternatively chicken sexer – that undoubtedly a job and assisted passage would be immediately available for us in, say, Canton or anywhere I chose.

I have furniture here made in my grandfather’s factory.
It has, discretely out of sight – “made with European labour only” indelibly stamped into the timber.
It isn’t nice to see it there, it isn’t pretty – but it was the go in his day.

I’d also make the point that his product has lasted for a century whereas the last bit of iron with “made with care in India” and purchased in good faith from an allegedly Australian owned chainstore hit the trashbin after its first, failed as broken, attempt at use.

But of course I’m going off the thread by leading back to what attributes or skills potential alien residents might need to possess in order to satisfy our government.
And I’m equally certain our government will make political decisions rather than fairly considering the merits of any alleged ‘refugee’ situation.

Yet we don’t want to use plain language to address fact; do we?

Edward Carson
14 years ago

Mandatory acceptance
As usual Ken has written a scholarly article which I would guess is 100% legally correct.
My issue is not so much with what Australia should do now with regards to the boat people but why we signed that international treaty years ago whereby we cannot reject any of those landed here who have a genuine refugee status.
Many people have derided John Howard’s election statement “We will decide who comes to this country and the circumstances in which they come” because it allegedly played on the xenophobic sentiment, but I seriously have trouble understanding why, in principle, there is anything wrong with it.
If I were a bleeding heart soft touch in charge of immigration who thought every applicant with a tear in his eye struggling on a leaky boat should be granted residence, then I’m sure I would still believe in Australian sovereignty and the ultimate right to decide, even though I knew I would be in probability accepting everyone. As I understand the law, if a normal residence applicant failed the criteria for acceptance then the Minister for Immigration still has the discretion to personally grant residence (a power that is actually used quite often), however if a refugee applicant of questionable status is actually granted residence then the Minister does not have the similar power to override that decision.
I can’t understand this concept that is it not us being nice to foreigners in distress, but in fact granting certain aliens the unquestionable ‘right’ to, dare I say it, ‘our’ land.
Surely sovereignty and self determination must mean something.

Madeleine Kingston
Madeleine Kingston
14 years ago

Wish I had time to answer this. I have lived in third world countries and seen much suffering and poverty

I had a little to do with people seeking asylum and the dilemma they face when the need is genuine and when the alternatives are terrible. The support given to those seeking asylum is limited and in financial terms does not extend beyond the original Tribunal decision. Most cannot afford to continue financially to fight for their freedom. Those who do manage to stay end up in no-man’s land and often regret being in that position. Some say they should have given up years ago and returned to face torture death, intimidation or tribal or other forms of rejection and discrimination.

An asylum seeker’s status even when this is obtained for perhaps the 8 – 10% of those who are successful with an asylum application is always tenuous and can be reversed if the political situation in the country of origin changes or the person is no longer considered to be at risk. There are huge prices paid sometimes even for those who are successful. Many become alienated from their families in the course of fighting for freedom from torture, political discrimination and so on.

There are always two sides to any story and I would prefer not to make judgments except on an individual basis if I am intimately acquainted with the situation. Until one has walked a mile in someone else’s shoes…..


PS Jacques I love your side bars and will just have to learn how to use them

14 years ago

To continue my tome –

Why is it that we in Oz. bend over backwards to pretend we do good works for the poor and oppressed – yet concentrate like little laser beams only on those overseas?
None of you seem to care much for Australians so afflicted.
In this regard what the hey is wrong with us that we cannot accept that if we get our own house in order – that we are then, but only then, best able to share our prosperity with others.

Madeleine Kingston
Madeleine Kingston
14 years ago

Ouch Bunsen,

Well… couldn’t just let that one go without some effort to defend my position.

Firstly I really don’t like to be labelled as a do-gooder, but I suppose my short blog above put me in the firing line for just such a quip so I will take it on the chin. My history speaks for itself.

Secondly, my efforts have certainly not been exclusive to those from overseas.

If I have an enhanced sense of social justice, it applies to all who are disadvantaged in some way, though in more recent years I formed by chance an association with those whose backgrounds and cultures have not offered them the same freedoms as we enjoy in this country. I will refrain from discussing details.

The issues I have raised have vexed numbers of people who feel strongly about certain issues.

Perhaps I can direct you to the Australian Policy Online article by Damien Kingsbury dated 13 April 2010 “Turning Victims into Criminals”

which opens with the following sentence:

“If the situation was reversed, who among us could accept that as victims we should then be treated as criminals, asks Damien Kingsbury in the National Times?”

I have always been willing to go that extra mile to support my beliefs and values. And I do not discriminate, but I do know that some marginalized groups just don’t have access at all to mainstream services and struggle to become integrated and accepted in a new country however short their length of stay may be.

So, in the spirit of Club Troppo which clearly supports a wide range of viewpoints and tolerates good-humored differences of opinion, I hope I can continue to join the happy group of bloggers from time to time.

Happy blogging


Madeleine (Kingston)

14 years ago

Madeleine Kingston said:
Ouch Bunsen,
“Well… couldn’t just let that one go without some effort to defend my position.”
My dear Lady,
There is no reason whatsoever you need defend your position.
Your position is yours and has profound merit.
Mine is equally so and conflicts with yours in no way whatsoever.

But our methodology might digress.
You might choose to nurture and support, to salve and save those who are oppressed.

Whereas, believe me, I’d like to round up those doing all that oppressing of the innocents and supply them with the following –
Item -1 off – rather thin and shoddy anorak.
Item -1 off – tin of jam
Item – 0 – zero can opener
Item – 1 – one way flight in Transport Aircraft – destination Antarctica
Item – 0 – nil other equipment
Then let them see what it is like to be on the receiving end of outrageous behaviour themselves.
If this sounds too close to the Code of Hammurabi – then forgive me because I’ve seen too many just standing by or turning their backs and letting hurt happen to others – simply because they can.

Now, this ‘Old King Log’ put the above scenario to the local paper half a lifetime ago at the height of the Vietnamese boat people saga.
It was accepted without reserve and published unedited – the scenario was, that is.
Except I hinted that it was the boat people themselves who should be transported to Antarctica.

I wanted the application of reverse psychology to cause an immense furore.
The result – not a twitch.

Sorry Madeleine, it shames me to say that I’ve come to understand all too well the mettle of our fellow Australians.
If the old term ‘moral fibre’ was applied to them; the best I could say is that, other than a few fine examples, they’d mostly be quite outstandingly threadbare.

I’m sure you’ll find my sentiments utterly antiquated – probably even, yeck, Churchillian.
Or to quote my favoutite playboy, Peter Gunn – “let’s leave sentiment out of it Babe” – and concentrate, hopefully without being ‘moderated’, on our converging aims.

14 years ago

Madeleine proudly declares “I do not discriminate” but of course she does, like anyone else. There are poor and hard done by through all the world, and have been through all of history… the only thing making a small group of Tamil refugees more worthy than peasant farmers in Uzbekistan or sweatshop workers in China is the simple fact that the Tamil refugees are here and standing visible.

If we tried to eliminate all the invisible poverty in the world simply by handing out wealth to the needy, we would discover that all of our wealth had been handed out and just as many poor and needy people were still asking for their share. We would discover that many of the worlds poor are not poor from lack of resources or lack of opportunity but from a mix of outright oppression, appallingly poor management and bare faced corruption.

Thus, we discriminate out of necessity… and when making such a decision it is far better to honestly consider the factors involved, rather than using self deception to pretend there was no decision.

Why don’t the Tamils go to India for help? It is closer to Sri Lanka, and culturally and ethnically similar; but those middle class Indians who jump up and down about racism in Australia would not waste energy helping the poor in their own country, let alone adding more poor by bringing in boat people. The Tamils are perfectly aware of the sort of treatment they can expect from India, and that explains why they go out of their way to come to Australia and make themselves visible.

How about a deal? We will take the Tamils who come to Australia and treat them decently, providing India offers equal generosity.

In the case of boat people from Vietnam and Cambodia, the Australian people (rightly) felt involved because of our part in the war. We made an effort out of a sense of responsiblity — still discrimination, but with a certain logic to it. In the case of the Sri Lanka war, it was started perhaps by the British, perhaps by racism within Sri Lanka itself, but certainly not by Australia.