The validity of Australia's controversial offshore processing of asylum seekers has been thrown into doubt after a court found fundamental errors of law in the system.
The High Court has today ruled that two Sri Lankan boat arrivals were denied "procedural fairness" in the review of their rejected refugee status claims. The unanimous judgment found those reviewing refugee determinations were bound to act within Australian law. Currently, those who seek asylum in Australia by boat are denied access to Australian courts.
The full impact of the decision and what implications it might have for the operations of the offshore detention system are still being assessed.
The High Court ruling places all asylum seekers on equal footing before the law, regardless of their mode of travel, which neutralises any legal benefit for the government to send all boat arrivals to Christmas Island first.
Australia's offshore detention regime was set up to deny boat arrivals the right to apply for protection unless the immigration minister made an exception, or “lifted the bar”. In effect, it created a two-tier system of asylum whereby those who flew into mainland airports were given the right to appeal their rejections in court but those who sailed were funnelled through a separate review process that mimicked the courts but were not bound by Australian law.
The two asylum seekers arrived by boat in 2009, reaching Christmas Island on October 2. Both claimed refugee status out of fear they faced persecution because of their alleged support for the Liberation Tamil Tigers of Eelam.
Faced with deportation, the pair appealed to the High Court on grounds of lack of procedural fairness because former immigration minister Chris Evans had failed to consider their cases personally.
The minister has the power under the Migration Act to grant a visa if it is in the public interest.
The High Court upheld their argument that they had been denied procedural fairness when having their claims for refugee status denied.
"Because these inquiries prolonged the detention of the plaintiffs, there was a direct impact on the rights and interests of the plaintiffs to freedom from detention at the behest of the executive," the judgment said. The court found the government had erred in not regarding the asylum seekers as being bound by the Migration Act and decisions of Australian courts.