What the High Court decision on offshore processing means
On November 11 the High Court ruled in favour of two asylum seekers who had challenged the offshore processing system, which is used to determine whether those who arrive by boat are given refugee status. While the decision is a slap in the face for the government, its legal effect is limited. It does not end offshore processing. It leaves excision and s46A of the Migration Act referring to “offshore entry persons” intact.
Federal Attorney General McClelland Robert has already said that offshore processing will stay and Immigration Minister Chris Bowen has said the result is “interesting” and applies to “some cases”.
While future refugee assessments under offshore processing will have to have regard to the Migration Act and decisions of Australian courts, the decision does not mean that those courts have been given jurisdiction to review the refugee status assessment (RSA) process.
We will have to wait to see what arrangements the government puts in place to deal with the decision. They could simply arrange to redo all the decisions or they could insist that every asylum seeker go to court to show there has been error of lack of procedural fairness – a big job for us, a big problem for the High Court and the government. (The government could potentially try to go ahead with deportations and it will be the High Court that could rule for an injunction.)
(i) The High Court has said that aspects of present determination system of refugee assessment are invalid (ie do not have regard to Australian law and procedural fairness) but not offshore processing itself;
(ii) While the offshore processing system was left intact, one of the errors of the two stage Refugee Status Assessment (RSA) “offshore” process identified by the court is general to all those who have been through the RSA process, that is that both the first stage RSA decision maker and the second stage reviewer treated the Migration Act and decided cases as no more than guides to determining the issues presented, when in fact each was bound by the Act and decided cases.
So to that extent the entire RSA process has been impugned. The Court said it couldn’t quash the RSA process recommendations or force the RSA decision makers to make a redetermination, or force the Minister to reconsider; the Court would only declare that there had been errors.
While all those offshore entrants are entitled to this declaratory relief, the onus is on them to seek this relief from the High Court. Otherwise all second stage Review recommendations will have to be redone (there’s no need to redo the first RSA recommendation).
Unless we keep up the pressure, the government response is likely to be, at best, minimalist.
What this means for individual asylum seekers is going to depend on the government response. Some have lawyers who continue to represent them, but others have none (they are not funded beyond the Merits Review).