Immigration minister has issued a ‘conclusive certificate’ which removes right of appeal on grounds of national interest

This article is more than 5 years old

This article is more than 5 years old

The immigration minister, Scott Morrison, has intervened to refuse refugee protection claims and has stripped refugees of any right to appeal against his decisions in an unprecedented new push to block permanent settlement.

Refugees found by the government to require protection by Australia have been told they will receive only temporary (humanitarian concern) visas, and have been banned from appealing against the decision by signed ministerial decree.

This is despite the high court striking down the government’s use of temporary visas last month.

Morrison has employed a rarely used clause in the Migration Act that allows the minister to issue a “conclusive certificate” blocking permanent protection without explanation, and forbidding any review of the decision on grounds of national interest.

Morrison’s office has confirmed the minister has intervened in one case, but Guardian Australia understands at least three conclusive certificates have been issued.

The certificate, of which Guardian Australia has obtained a copy (pdf), reads: “I, Scott Morrison, minister for immigration and border protection, acting under section 411(3)b of the Migration Act 1958, believing that it would be contrary to the national interest for my decision to refuse to grant a protection visa to be changed or reviewed, hereby issue a conclusive certificate”.

The minister is not obliged to reveal the reasons of national interest for the decision. His decision cannot be appealed at the Refugee Review Tribunal.

In September, the high court disallowed the government’s attempt to force all asylum seekers on to temporary protection. In a subsequent case, which will come before the full bench in December, the court will decide whether the minister’s use of national interest is lawful in rejecting refugee protection claims.

Refugees issued with conclusive certificates refusing them permanent protection and forbidding them to appeal have passed all security and character checks. There are no national security concerns about their claims.

Serina McDuff from the Asylum Seeker Resource Centre said refugees were being denied natural justice, and that there was no clear definition of what was meant by national interest.

“To exercise such a power where people are owed protection and particularly where they have passed security and character checks may be a contravention of their right to a permanent protection visa under the law.”

McDuff said the government was using national interest to pursue a political aim of providing only temporary protection to refugees.

“Permanent protection for refugees is currently the law, regardless of the desire of the government to only provide temporary protection. Temporary protection has been twice rejected by the Senate, people found to be refugees are right now owed permanent protection.”

Joyce Chia from the Kaldor centre for international refugee law at the University of NSW said the minister’s use of the national interest criterion to refuse visa applications was an attempt to circumvent the decision of the high court.

“It seems unlikely that this interpretation would be upheld if challenged, because it would effectively subvert the scheme of the Migration Act by giving the minister almost unfettered power to deny people protection visas.”

A spokeswoman for Morrison said the minister alone held the power to decide whether it was “in the national interest” to grant a permanent protection visa to a refugee found to require Australia’s protection.

“The minister will also decide if it is in the national interest for a conclusive certificate to be issued, thereby preventing merits review of his decision. Applicants will still be able to apply for judicial review,” the spokeswoman said.

Judicial review can consider only errors of law. The merits of the minister’s national interest decision cannot be considered by any court or tribunal.