M47, represented by human rights lawyer David Manne, challenged the denial of a protection visa on three grounds:
1. Procedural fairness
2. Public safety criterion 4002 was invalid (which prescribes that an applicant must not be assessed a security risk in order for a protection visa to be granted)
3. Indefinite detention
They won on the second ground – the invalidity of the public safety criterion 4002 but let’s examine each legal ground in turn and then look more broadly at the fundamental problems of the lack of independent scrutiny of ASIO’s decisions, the unequal application of legal processes to citizens and non-citizens and the internationally condemned and deeply damaging policy decision to indefinitely detain both asylum seekers and refugees who have received negative security clearances.
Firstly, a little background on M47. M47 is a Sri Lankan refugee who arrived in Australia in December 2009 and has been detained for almost two years. He was found by the Department of Immigration to face a well founded fear of persecution (as required by the Refugee Convention 1951) and thus established as a refugee. Subsequently, he applied for a protection visa which was denied on the grounds of ASIO’s assessment that M47 was a security risk.
This means that ASIO provides a negative finding to the Department of Immigration and Citizenship who ultimately determines whether or not a protection visa is allocated. Some of the problems with this process include:
- ASIO has no statutory obligation to alert the applicant of any adverse findings against them and thus the applicant has no opportunity to respond to allegations (which is completely contrary to the way our legal system works ordinarily operates in say a criminal court)
- Whilst the rules apply differently to Australian citizens, refugees yet to be granted protection visas have no right to appeal ASIO decisions to the Administrative Appeals Tribunal. Effectively this means that ASIO has the right to take away one of our most basic rights (freedom of movement and association) via indefinite detention.
Procedural fairness is sometimes known as natural justice. It means that whenever decisions are being made, they should be made using a fair and proper process (for example – this is why if police break into your house without a search warrant and find your stash of pot, that evidence would not be admissible in a court of law because the police broke the law in order to obtain it. Procedural fairness is designed to protect individuals from draconian coercion of the state that can operate without checks and balances).
In a court of law, procedural fairness protects a legitimate expectation. For example, M47 had a legitimate expectation that he would be assessed fairly and granted a protection visa on the grounds that he had already been granted refugee status. If M47 was a citizen who had been denied a centrelink payment (for example) when he had a legitimate expectation it would be allocated he would be entitled to a:
Hearing: where Centrelink would be required to tell him why they had denied him his payment. M47 would be entitled to receive all the information they had used to make their decision so he could mount a suitable response which would then be considered by the decision makers.
Consideration free from bias: simply means that the decision makers assess the case at hand with an open mind and without a predetermined decision. There is no suggestion in the case of M47 that this was an issue, but without independent scrutiny or the right to a hearing there is little capacity for an applicant to mount a challenge.
– and evidence and appropriate inquiry (which again, cannot be ascertained in the absence of a hearing).
The court found that procedural fairness was afforded to M47 because he was given the opportunity to respond to the issues at hand earlier in 2012. The reason why the aforementioned principles of procedural fairness (such as a hearing) do not necessarily apply in the same way to M47 as in other cases is because the ASIO Act (1979) contains statutory provisions that allow ASIO to act in ways that, say the Government, could not normally. Courts have historically been reluctant to interfere too heavily in decisions made by governments to legislate on particular matters and prefer to defer to Parliament’s judgement (because Governments are elected by the Australian people, Judges are not).
The Public safety criterion 4002
This is the requirement under the Migration Regulations 1994 that the applicant is not assessed by ASIO to be a direct or indirect risk to security. The granting of a permanent visa to remain in Australia is contingent on this assessment. The High Court decision essentially came down to statutory interpretation. The essential questions were whether s198 and s196 of the Act authorised M47’s detention, and whether cl 866.225 of Sched 2 of the Migration Regulations 1994 conferred the delegated legislative power to establish the public interest criterion 4002. Basically, the Court decided that when the Migration Act was read correctly – granting a protection visa only if the public interest criterion 4002 was satisfied was inconsistent with other provisions in the Migration Act.
M47 also brought the case that the Migration Act does not support the removal and detention of a refugee. The situation of M47 and the 54 other refugees indefinitely detained as a result of negative security assessments is so dire because the Migration Act authorises the detention and removal of these people as “soon as is reasonably practicable”. The question arises then, who on earth will take them? It’s not surprising that third party countries rarely step up and volunteer to take people we have labelled as a security risk (and the Refugee Convention prevents Australia from sending them back to their country of origin where they experienced persecution). Disappointingly, the High Court in this instance had determined the case on the issue of the public safety criterion 4002 and so did not need to consider M47’s arguments with regards to indefinite detention and its lawfulness (or otherwise).
Without stepping into the murky waters of conspiracy theory, it is important to recognise the political role that bodies like ASIO play and the role that secrecy and mystique play when it comes to a docile public. This is not big bad ASIO at play, however. ASIO has no control whatsoever over its legal limitations. Our successive governments continue to give ASIO enormous ambit to make decisions without external review because a country under threat is a country easier to sway with cheap political tricks like the influx of boat people threatening our shores, or the catastrophic impact of the carbon tax introduced by a government clearly under the thumb of the Greens etc. The issue is, of course, that the cost of these political games is incredibly high.
We know the effects of indefinite detention are profound and long lasting. Australia’s mandatory, indefinite detention policy stands alone in the Western democratic world and has been subject of extensive international criticism. Early this year Australian researchers even identified a new mental illness found only in asylum seekers due to their protracted detention. This recent High Court case is a partial win in the fight for fairer processes, more transparency and humane treatment of asylum seekers and refugees. But it should be seen in the light of our recent acts of negligence (and breach of the Refugee Convention) in detaining asylum seekers offshore, out of the public eye, in Nauru, in tents indefinitely. It’s time we shook off our small island mentality and stopped allowing our Government to get away with human rights violations because we’ve bought into the great political charade that we are constantly facing threats that we don’t even know about.