A glimpse of the future

ASIO and refugees' security assessments ... The High Court trod gingerly in the M47 case ... Now its earlier finding on permanent detention is up-for-grabs by a differently constituted court ... Lawyers for asylum seekers will be back for another round 

ONE inference that can be drawn from the fact that the Australian government continually loses cases concerning its treatment of asylum seekers and its administration of the Migration Act 1958 is that the High Court is biased against the government and frames its (authoritative) view of the law, accordingly.

A competing, more likely, inference is that the government sails close to the wind in its view of the law and, accordingly, gets caught out regularly.

M47 v Director General of Security and Others, decided on October 5 last, is one more in this series of cases. It is complex in that a number of issues were raised and each of the seven judges provided a full set of reasons setting. 

In one sense, M47 is an anti-climax. Commentary on the High Court and Australia's legal system often comes back to the 2004 case of Al-Kateb v Godwin.

In Al-Kateb the court decided, by a razor thin majority of four to three, that the Migration Act, unhampered by the Constitution, authorised the detention of failed asylum seekers, indefinitely.

The detention continued to be authorised even when there was no prospect of people being returned to their country of origin or elsewhere.

The outcome in Al-Kateb was widely condemned.

M47's case raised the prospect that the High Court might return to the issues of Al-Kateb and come to a different conclusion.     

M47 is a former member of the Liberation Tigers of Tamil Eelam (LTTE), the Tamil-based, losing side in Sri Lanka's cruel civil war.

Consequently, it was common ground that he is at risk of being targeted by the Sri Lankan Government and/or paramilitary groups in Sri Lanka.

It was accepted that there is a real chance that, if M47 were returned to Sri Lanka, he would be subjected to abduction, torture or death.

A delegate of the Minister for Immigration and Citizenship found that M47 met the definition of refugee within the meaning of the Refugee Convention 1951 and the Migration Act.

However, M47 was refused a protection visa on grounds of national security.

The Australian Security Intelligence Organisation is empowered by Public Interest Criterion (PIC) 4002 of the Migration Regulations 1994 as effectively having the last say on protection visas to refugees.

ASIO issued successive adverse security assessments of M47 on the basis of their view of his past connections with the LTTE.

According to the Regulations, M47 may not receive a visa while an adverse security assessment remains in place.

It is far from clear why a participant in one side of a civil war in another country would make a refugee a threat to security in Australia.

The answer may be found in the ASIO legislation's definition of "security", which includes the national security of other countries with which Australia has treaty obligations.

One of the more unseemly aspects of Australia's political behaviour since 2009 has been the image of both sides of politics cosying up to war criminals in the military dictatorship in Sri Lanka. 

As a result of the adverse security assessments, M47 remains in immigration detention where he has been held since December 29, 2009.

Attempts have been made to place him in a third country. Although that process was not complete at the time of the judgment, immigration detention in Melbourne looks to be the foreseeable future for M47.

The majority in Al-Kateb comprised Justices McHugh, Callinan, Hayne and Heydon.

Justices McHugh and Callinan are now retired. Justice Hayne is eligible to remain on the court until June 5, 2015. Justice Heydon turns 70 and steps down on March 1. His replacement, Patrick Keane, Chief Justice of the Federal Court, has already been announced.   

In Al-Kateb the minority were Chief Justice Gleeson along with Justices Gummow and Kirby. Gleeson and Kirby have retired. Justice Gummow sat in the decision on M47's application but his retirement took effect four days later on October 9, 2012.

He has been replaced on the court by Stephen Gageler, a former Commonwealth Solicitor-General who, until his appointment, had primary responsibility to defend the legality of government actions on asylum seekers.

The anti-climax occurred because the case was decided on the validity of the public interest criterion 4002 and the regulations that gave it legal effect.

The court held that the regulations were invalid because they were inconsistent with sections of the Act that covered similar ground; allocated decision making on subjects which included threats to national security to the minister or his delegate; and instituted a system of appeal on the merits to the Administrative Appeals Tribunal.

The line-up on this question was a majority of 4/3 (the majority composed of Chief Justice French and Justices Hayne, Crennan and Kiefel and the minority composed of Justices Gummow, Heydon and Bell).

This gave the dissenters an opportunity to express an opinion on the issues determined in Al-Kateb, notably, whether the detention provisions of the Act really authorised indefinite detention, that is, whether a person could be detained for the term of their natural life long after the objective of deporting them was found to be not practicably available.

The majority judges did not have to decide this issue. By finding PIC 4002 invalid, the easy answer was that the minister still had to make a proper decision on the visa application and so detention was authorised at least in the short term.

So, all we got from the decision was a fascinating snapshot.

Justice Gummow noted:

"The Act does not provide in terms that an unlawful non-citizen is to be kept in immigration detention permanently or indefinitely. The parliament has not squarely confronted what then becomes the primary issue of statutory construction in this case."

Gummow went on to set out the long held assumption of the law stated in the joint reasons in Coco v The Queen that the courts are not to impute an intention to interfere with fundamental rights.

Rather, such an intention must be expressed by "unmistakeable and unambiguous language" in the relevant statute.

Equally strongly, Justice Heydon stuck to the guns of the majority in Al-Kateb. But neither Heydon nor Gummow will be around to decide future cases.

The other dissentient, Justice Bell, thought Al-Kateb should be re-considered and decided differently.

She placed particular emphasis on the circumstance that two of the majority judges in Al-Kateb did not expressly make any reference to the Coco principle in reaching their conclusions.

She held that, on the present wording of the Act, indefinite detention of failed asylum seekers, who cannot be returned or placed in a third country, is not permitted. 

The known line-up then is one against (and six unknowns) concerning the continuing correctness of the result in Al-Kateb. No more than a fascinating snippet has been provided.

The government has not changed its sailing tactics.

It has informed lawyers that the M47 decision is not to be applied to asylum seekers who arrived by boat. M47 was one of the asylum seekers who was caught up in the Oceanic Viking saga and had arrived in Australia by air.

A preferential processing deal had been done, which resulted in a favourable assessment on his refugee status.

So the High Court's decision has been given a narrow interpretation by the government and will affect very few of the asylum seekers whose future lives are being determined by ASIO officials.

Accordingly, there is every motive for asylum seekers' lawyers to rush back to the High Court.

Hopefully, a full reconsideration of Al-Kateb will take place and the High Court might be able to salvage its reputation when it comes to the interpretation of laws that impact on fundamental human rights.

How will the numbers stack up?

Stephen Keim and Salwa Marsh