Asylum seekers arriving by boat have lacked the right of appeal granted to arrivals by plane – until now Australia’s highest court has backed migrant claims of unfair laws as the government tries to strengthen borders.
Two Sri Lankans migrants held offshore on Christmas Island had argued that laws barring them from appeal in Australia’s courts were unfair.
The case has far-reaching implications for Australia’s asylum policy.
Successive governments have held refugee claimants in offshore detention and barred access to appeal if their claims to asylum were denied.
Lawyers for the migrants argued that this placed the decisions of immigration officials – under whose authority the asylum-seekers are held and assessed – above the law.
The issue is highly toxic for the minority government of Prime Minister Julia Gillard, who had made election promises to discourage new refugee inflows to the country.
The legal dispute hinged on the distinction made by the government between asylum-seekers who arrive by plane and those who come by ship since 2001.
Boat arrivals are placed in detention; their status is assessed by contractors of the Immigration Department and if denied, they have had – until now – no right of appeal in Australia’s courts.
“The implications of this decision are very significant”
David Manne Lawyer for asylum-seekers
But those who arrive by plane are not automatically detained – and do have the right of appeal if their claim to refugee status is denied.
The seven judges of the High Court of Australia were unanimous in their ruling.
They said the two Sri Lankan Tamil men who arrived in October 2009 – known simply as M61 and M69 – were denied “procedural fairness”.
Attorney-General Robert McClelland said the judgement could force a change to current laws and policies and would need to be examined carefully.
The conservative opposition has said it wants much stronger laws, and has warned that this court ruling will be a nightmare for the legal system which will become clogged by appeal cases for years to come.
One of the lawyers for the two men, David Manne, says the decision will pave the way for other asylum seekers to challenge unfavourable decisions in Australian courts.
“The implications of this decision are very significant,” he said.
Ms Gillard’s minority government relies on support from the Green Party to stay in power; the Greens have long been critical of the harsh immigration laws.
But many Australians dislike the prospect of many more migrants arriving in the country.
The Labor government also wants to set up a regional asylum centre in East Timor.
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