The Guardian February 12, 2003


Significant court win for asylum seekers

by Peter Mac

The terrible problems facing those seeking asylum in Australia continue to 
make front-page news. Desperate asylum seekers continue to seek release 
from the government's infamous detention centres, and (in some cases 
assisted by local people) they resort to breaking out of their 
confinement.

Others continue the nightmare process of seeking judicial review of their 
cases. The long-suffering Baktiari family, for example, took their case to 
the High Court, only to have the Court reject their claim that the Minister 
for Immigration was wrong to refuse to issue them a protection visa.

However, the High Court of Australia last week issued a highly significant 
ruling in a case that overturned the Howard Government's infamous 
amendments to the Immigration Act.

Lawyers who mounted the case against the Act had argued that the amendments 
were unconstitutional and should therefore be declared invalid by the 
Court.

The Court rejected this argument, and ultimately awarded 75 percent of the 
Government's costs against the plaintiff. For this reason the Minister for 
Immigration, Phillip Ruddock, greeted the Court's decision as a victory for 
the government.

The Court ruled that the government was entitled to pass the laws under the 
Constitution.

However, the Court did not support the government in its attempts to deny 
asylum seekers access to Australian law.

The government had particularly sought to deny applicants for asylum the 
right to appeal against administrative decisions by the Refugee Review 
Tribunal. The Court, however, found that while the Tampa laws themselves 
were constitutional, the "privative" clause inserted in the Migration Act 
last year in no way prevented the Court from reviewing Tribunal decisions 
and ordering that certain cases be re-determined, where the court believed 
that the Tribunal may have erred in law.

Federal Labor MP Duncan Kerr, who led the case against the government, 
commented that from now on: "no statutory provision can prevent the High 
Court's right to ensure that administrative decisions are made lawfully."

At stake in this case was a major legal issue, and the ruling has profound 
implications for applicants for protective visas, including the 700 people 
currently involved in appeals to the High Court.

They will now be entitled to have their cases heard.

In short, legal entitlements we consider to be a civil right in Australia 
will still be available to those seeking asylum on Australia's sunny 
shores.

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