On November 11, the High Court found the government’s offshore processing arrangements invalid, ruling that they must give asylum seekers “procedural fairness” and take account of relevant Australian law.
The decision confirmed what refugee supporters have been saying—that offshore processing was arbitrary and discriminatory. However the decision leaves offshore processing in place. It is only the way it is carried out that will change.
In future, decisions will have to accord procedural fairness. For example, asylum seekers will have to have an opportunity to respond to information, such as country background information, that is going to be used against them. It also means that anyone rejected at the Merits Review stage will be able to appeal to the High Court.
But the government stalled on announcing how it would respond to the High Court. Immigration Minister Chris Bowen even suggested that the government might seek to change the law to avoid the ruling.
The delay helped fuel angry protests after yet another asylum seeker committed suicide in the Villawood detention centre.
Following these protests, the immigration department told around 150 asylum seekers rejected at their hearings that had been “mistakes” made in their cases, and that they will get a new interview. There is no indication yet when those interviews will begin and whether lawyers will be appointed to assist.
The High Court decision does not re-instate judicial review of the cases themselves. But it does mean that asylum seekers will be able to appeal to the courts over issues of procedural fairness or errors in law.
There has been some debate over the implications for Labor’s proposed regional processing centre. It would seem that as long as the centre was not administered by Australian officials, offshore processing in East Timor would be beyond the reach of Australian courts.
But legal opinion suggests that the High Court’s decision would apply to the Coalition’s proposal to re-open an Australian-run detention centre on Nauru.
The High Court decision has re-established some legal, but it still leaves a lot to be desired. Around 50 per cent of offshore asylum claims are still being rejected. This is a direct result of declarations in April by government Ministers that rejection rates would increase, at the time it announced the visa freeze on asylum claims.

Unfair, unsafe
The government has refused to release any of those wrongly rejected under offshore processing—not even the 150 second rejection people that have been facing the soul destroying possibility of deportation.
In fact the government is still handing out rejections, and bragging about the rejection rates under the flawed process the High Court criticised.
There is no end in sight to the torture of detention. With the backlog in processing, more delays as a result of the High Court decision, possible appeals and the increasing number of initial rejections, asylum seekers face months and years more in detention. The carnage is just beginning.
Detention centres are at bursting point and the only answer Chris Bowen has is more detention. Curtin is being expanded to 1200 from 700, another 600 will be held at Broadmeadows, Victoria for families and unaccompanied minors and a possible 1500 at the 11 Mile Antenna Farm near Darwin.
This is on top of Northam, expected to be ready in mid-2011, to take another 1500 and the facility at Inverbrackie to hold 400 people in family groups (more children in detention) that will be filled in December.

Abbott fans the flames
John Howard’s anti-refugee policies inflamed Islamophobia and led directly to the Cronulla riots in 2005. Now the anti-refugee policies being pushed by our political leaders are again encouraging vicious anti-refugee sentiments in the community.
Both Inverbrackie and Northam have seen ugly anti-refugee protests in response to the government’s announcements that it will build detention centres there.
Tony Abbott was quick to fan the racist flames in Inverbrackie, organising a town hall meeting, to “hear the concerns” of residents. In scenes reminiscent of John Howard’s overtures to Pauline Hanson, he re-assured the crowd that it was an “open and welcoming community”, and repeating his calls to stop the boats.
Abbott didn’t get things all his own way—members of the Inverbrackie Refugee Support Group were also in the crowd. At Northam too, a Northam Welcomes Refugees group has been set up.
Labor too is still competing in this race to the bottom. Julia Gillard even attacked Shadow Immigration Minister Scott Morrison for proposing a quota of only 3750 boat arrivals be accepted—by saying that “this side of the House”, meaning Labor, will not be “laying out the welcome mat the way the shadow minister wants to…”
It was a day after Ahmad’s suicide in Villawood. It was a disgrace.

By Ian Rintoul

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