New ruling threatens Australia's offshore refugee system

Australia's controversial policy of processing asylum seekers offshore has received a blow after the High Court ruled that officials had no right to refuse an appeal in Australian courts to two Sri Lankan refugees being held on Christmas Island. The High Court found the two men were denied "procedural fairness".

Reuters

Asylum seekers on the island, 2,600 kilometres from the mainland, cannot apply for a visa unless they are found to deserve protection under a case review system.

The court ruled that the government's quasi-judicial case review system, which is not bound by Australian statute, had denied the Tamils access to the courts.

The ruling said a number of errors had been made in the men's cases with reviewers treataing the Migration Act as no more than guidelines to determining the issues involved in the cases.

The ruling could force the government to review its policy of offshore processing for asylum seekers.

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David Bitel, Refugee Council of Australia

Salil Sarkar

"Essentially the HIgh Court has ruled that Australian law applies given that it's Australian decisions that are taking place," says David Bitel of the Refugee Council of Australia. "And ... these people are entitled to a judicial review of decisions."

Christmas Island was removed from Australia's migration zone in 2001. Prime Minister Julia Gillard is said to be seeking legal advice on the ruling.

David Manne, director of the Refugee and Immigration Legal Centre, which brought the men's cases, described the ruling as a great decision for the rule of law in the country.

Immigration Minister Chris Bowen acknowledged that the decision highlighted a lack of judicial fairness for some offshore detainees.

The outcome of the High Court's decision rested on a distinction made by the government in 2001 between asylum seekers who arrive by plane and those who arrive by boat.

Boat arrivals are placed in detention and have their status assessed by Immigration Department contractors.

If their request is denied they have not had, until now, a right of appeal in Australia's courts.

Those arriving by plane are not automatically detained and do have the right of appeal if their refugee status is denied.

Some 2,600 asylum-seekers are currently held on Christmas Island, which was slammed as "Devil's Island" last year by visiting UN Special Rapporteur on Health, Anand Grover, who urged its closure.