Offshore asylum seeker processing regime for the chop?

Like David Marr, I’ve been waiting for a while for the High Court’s decision in the M61 and M69 case.  The applicant’s arguments challenge on various constitutional and statutory interpretation grounds the legal validity of the current asylum seeker processing regime, and in particular its effect of putting protection visa decisions for “boat people” effectively beyond judicial review.

I read the hearing transcripts a couple of months ago and formed the view that the case had a fighting chance of success.  Anyway, the decision is being handed down this morning so watch this space.  If the applicants succeed it will not only restore a measure of fairness to the system but, rather more equivocally, increase the incentives for asylum seekers to take their chances with the people smugglers and further increase the political pressures on the Gillard government to do a deal with East Timor quickly or swallow their pride and revert to the Nauruan Pacific Solution.

Update – The Commonwealth suffered a major loss in today’s unanimous High Court decision. What the High Court essentially decided in Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia was that the processing and merits review bodies were obliged to give applicants natural justice because the Minister’s decision to establish them constituted the commencement of his consideration of whether to exercise a statutory power under the Migration Act to grant protection visas.  In that sense the whole process is grounded in statute and therefore attracts an obligation to provide natural justice.  The “non-statutory” regime for processing offshore (illegal arrival) asylum seekers was not struck down as such.

It’s important to understand in general terms that what the Howard and Rudd governments did was to try to put processing of offshore boat arrival asylum seekers beyond judicial review by outsourcing or privatising the assessment and merits review processes!  The Rudd government took that notion to the extreme of contracting out the merits review process to a private company rather perversely called Wizard People Pty Ltd.  By outsourcing the process, making it purely recommendatory and divorcing it from the Minister’s ultimate statutory decision, successive governments clearly hoped that the processes would be immune from public law judicial review because the processing bodies were private rather than public and weren’t even making any operative decisions.  Today’s decision represents a comprehensive failure of that cynical strategy.

The IMR reviewer in both cases was held to have breached natural justice by failing to disclose potentially adverse general “country information” to the applicants, thereby denying them an opportunity to explain or rebut that material.  In the case of M61 the IMR reviewer also failed to consider an entire ground of the applicant’s claim to refugee status (namely that he was a member of a particular social class being “Tamil business owners” or “Tamils who are perceived to be wealthy”).  And in both cases the Court held that the IMR reviewer had committed a judicially reviewable error of law by treating the Migration Act and decided cases as no more than guides to decision making when in law they were binding on him.

The Court rejected M69’s principal constitutional argument, namely that section 46A of the Migration Act was constitutionally invalid as conferring an arbitrary and unreviewable power on the Minister.  Section 46A confers a discretion on the Minister to grant a protection visa to an offshore arriving asylum seeker, and just as importantly does not even oblige the Minister to consider whether to exercise that power.  This formulation puts the Minister’s function largely beyond effective judicial review, especially given that matters are not even put before the Minister for consideration of whether to exercise the power unless the RSA delegate or IMR reviewer has recommended grant of a visa.  The Court held that there was nothing necessarily unconstitutional about conferring a discretion on a Minister that he was under no legal obligation even to consider exercising. Thus the Minister’s exercise of power remains beyond effective judicial review.

However, the Court’s conclusion that both the “non-statutory” initial RSA assessment and any IMR review process are subject to judicial review both for natural justice and error of law means that the legal rights to judicial review of asylum seekers who arrive by boat are now restored to approximately the same position as that of onshore asylum seeker applicants.   In fact in one important respect they are better.  Because of specific provisions in the Migration Act (namely s 424A(3)(a)), onshore applicants need not be informed of general country information that may be taken into account to their detriment.  The Act reduces the applicant’s common law procedural fairness rights to that rather significant extent.  However, and somewhat ironically, the Court held that this reduction in natural justice rights does not apply to offshore boat arrival applicants: to that extent at least the government’s attempt to cast the whole process as a “non-statutory” one has been successful!

Lastly, the Court granted only declaratory relief, declining to grant certiorari or prohibition because mandamus was by definition not available once the Court held that s46A was valid in conferring a non-compellable discretion on the Minister.  However, there is no doubt that the Commonwealth will act in accordance with the High Court’s declaration as to natural justice and legal requirements generally.  Both M61 and M69 will certainly receive a rehearing in accordance with law.  The decision does not overturn the entire “non-statutory” assessment and review regime, and whether any other existing determination has to be re-opened will depend on whether natural justice was breached in a particular case.  However, given that I understand refusing to notify applicants of country information that may have been taken into account is the normal if not universal procedure adopted in asylum cases, it is very likely that ALL existing adverse determinations/recommendations will need to be reheard. Thus the practical effects of this decision are major.

The bottom line remains as I suggested at the beginning of this post.  It restores fairness (at least in terms of natural justice and judicial review rights) to offshore boat arrival asylum seekers, but simultaneously increases pressure on the Gillard government to find a workable political solution.