Ruling on temporary protection visas could affect thousands of asylum seekers not being processed

Updated

A High Court ruling could have implications for thousands of asylum seekers who are not having their claims for asylum processed.

The High Court unanimously ruled on Thursday that Immigration Minister Scott Morrison's decision to grant a man a temporary protection visa (TPV) was invalid.

It spelled out that there were only three lawful reasons for detaining people and found detention was not "an end in itself".

Human rights lawyers said the ruling could also relate to thousands of people who are effectively in limbo.

But while it appears to deliver another judicial blow to the Government, the future for thousands of asylum seekers is not yet clear.

A spokesperson for the Immigration Minister said that there are less than 50 cases that will be be affected by the High Court judgement.

"Those sort of suggestions reflect the wishful thinking of advocates seeking yet again to undermine the Government's policies, rather than an informed understanding of the judgement and the process."

The case involved a man who was detained on Christmas Island for two years.

The Immigration Department had found he was a refugee but Mr Morrison granted him a TPV, which prevented him applying for permanent protection.

Human rights lawyer David Manne welcomed the High Court judgement.

"The High Court has again found that yet another device used by the Government to block refugees from being given a permanent protection visa is invalid and unlawful," he said.

Mr Manne said it also had implications for how long people could be detained.

"Many people are currently in situations which could best be described as limbo, held in detention without proper processing of their claims for protection," he said.

Dr Joyce Chia, from the Kaldor Centre for International Refugee Law at the University of New South Wales, said the case had profound implications because it set out the purpose that people could be held in detention for.

"This really throws into doubt the current Coalition's policy, which at the moment involves detaining a lot of people without moving them through a genuine process of either removal or visa consideration," she said.

No justification for holding asylum seekers: lawyer

Mr Morrison has said that asylum claims have not been processed because he cannot get parliamentary approval to offer TPVs.

Ms Chia said the High Court did not see that as a valid reason for not processing people.

"The High Court has said there are only three valid reasons," she said.

"None of those would have fallen within what the current minister is suggesting as the justification for continuing to hold these people.

"He has to get on with the actual job, which is to consider whether these people should be allowed to make a visa application under the current law which provides permanent protection."

She said the High Court had clearly invited refugee lawyers to take new legal action.

"By setting out what it said were the limits of detention it basically invited lawyers to say, 'Hang on, it's not happening in my client's case. The clients are not being detained for one of those three purposes nor are they being processed as soon as reasonably practical as the High Court has suggested.'

"So in that way, a legal representative must be now looking and saying, 'Is my client being unlawfully detained?' and 'Can I get him released?'"

But Mr Manne cautioned that the fate of those asylum seekers may be decided by parliamentary talks about TPVs.

"It could well depend on the fate of negotiations between the Government and certain parties in the Senate in relation to permanent protection and TPVs for refugees, so there's a lot of uncertainty here," he said.

Mr Morrison said if the Senate agreed to reintroduce the visas, he would be willing to give them to asylum seekers who arrived by boat in the second half of last year — meaning they could be released from detention but not be eligible for permanent protection.

Topics: immigration, refugees, government-and-politics, australia

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