Wednesday, 25 August 2010

Legal Challenge To Australian Off-Shore Processing

One of the most amusing ironies of the Australian election is not that the two sides' anti-immigration rhetoric and desire to 'process' asylum claims even further from the mainland* got them nowhere further than a neck-and-neck finish and a hung parliament, rather it is that this situation coincides with a High Court challenge to the very basis of off-shore processing.

Christmas Island, like Manus island and Nauru, was specifically excluded from the Australian Migration Zone, the territory where a non-citizen must hold a visa to legally enter and remain, as part of the Pacific Solution. The legislation involved also removed the right of non-citizens to apply for visas when there, allowed the Australian state to remove them to other countries and limited access to the Australian legal system.

This ultimately means that, unlike in the UK, immigration department officials and private contractors rather than the courts have the final approval of any asylum application. Now two Tamil refused asylum seekers are seeking judicial review, challenging the constitutional basis to off-shore processing. if successful it would defeat one of the core purposes of government policy to severely limit the rights of 'boat people' to asylum.

The Immigration Minister in fact has the ultimate say in these cases but it is government policy to waive the right in favour of immigration officials. That he is not choosing to examine such cases as he would do for asylum applications made on the mainland by refugees that arrive by air, for example, also forms part of the challenge

* In fact in a completely different country, not just on an island specifically excluded by law from certain sections of the Australian legal process.

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