Pearls and Irritations

For almost thirty years, there has been a tussle between the courts and government in Australia over immigration detention. Alas, the High Court called a truce on Wednesday with a 4-3 decision which is as unprincipled as it is harsh.

In the past, whenever the High Court has set limits on what immigration officials and the Minister can do, government has gone back to Parliament introducing increasingly complex legislation aimed at overcoming the court decisions, while acknowledging our international obligations. While maintaining the sovereignty of our borders and the control of our migration program, we Australians have long prided ourselves on being good international citizens. We have voluntarily signed up to all the key international human rights conventions including the Refugee Convention and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Both these conventions oblige us not to ‘refoule’ or send back people from our shores to places of danger where they would face persecution, torture, or inhuman treatment.

On Wednesday, the High Court, by a narrow margin of 4 to 3, agreed that the measures introduced by Scott Morrison when he was Minister for Immigration passed muster. The case related to a Syrian man known as AJL20 who came to Australia as a child. He came from Lebanon travelling on a Syrian passport. He had been issued a visa and was resident in the Australian community for nine years. In 2014, the Minister cancelled his visa on the grounds that he no longer satisfied the character test.

Those on temporary visas can have their visas cancelled by the minister if he judges them not to be of good character, even if they are not serving a prison term. Six days later AJL20 was taken into immigration detention. After almost three years in immigration detention, an immigration official determined on 25 August 2017 that the young man was “a person in respect of whom Australia has protection obligations”. But the Minister’s delegate and the Minister refused to take any action. As far as they were concerned, the young man would remain in detention until such time that departmental officials were able to remove him from Australia.

In September 2020, a Federal Court judge ruled that the ongoing detention was unlawful and ordered the release of AJL20 into the community. It was this decision which the government appealed to the High Court. The young man is now to be returned to detention until a way is found to remove him from Australia. And he has been ordered to pay the Commonwealth’s costs of the proceedings.

Some historical background is needed to place this decision in context.

Back in 1992, the High Court heard a case brought by Cambodian boat people who had been held in detention for 2 ½ years by the Hawke-Keating Labor Governments. Parliament had made a law authorising temporary detention of boat people “only until the departure of the vessel(s) from Australia or ‘until such earlier time as an authorised officer directs'”. The government burnt the boats and told the court that the temporary custody could then continue indefinitely because the boats would never be departing. The High Court pointed out that detention usually results from a court order. Detention ordered by the Executive without the opportunity for court determination and supervision needs to be confined to legitimate purposes set down by the Constitution.

The Court decided that the valid purposes for detention were “limited to what is reasonably capable of being seen as necessary for the purposes of deportation or necessary to enable an application for an entry permit to be made and considered”. Parliament could not authorise the Executive to detain aliens involuntarily beyond the time needed to achieve these purposes because the detention would then be “penal or punitive in character [which] under our system of government, exists only as an incident of the exclusively judicial function of adjudging and punishing criminal guilt”.

After this decision, the government set about introducing amendments to the Migration Act. After the first Gulf War in 1991, there had also been a recurring problem with a trickle of Palestinians who were arriving in Australia on boats, with no way of getting back to the Gaza Strip. Especially problematic were those Palestinians who had lived for years in Kuwait. Given Saddam Hussein’s support for the Palestinian cause, many of these people had to leave Kuwait and they were technically stateless.

No nation on earth was obliged to take them and Israel was not willing to let them go to the Gaza Strip. Some of these Palestinians arrived in Australia without visas, without passports, without nationality and with nowhere to go. Once rejected as refugees, they then applied to the government to be removed from Australia. But there was no country willing to accept them. Were they to spend the rest of their lives in detention? Was there any realistic prospect that they would ever be released?  These Palestinians were no longer awaiting the processing of their claims. They had no real prospect of being removed.

Government had more than enough time to assess that they were not health or security risks to the Australian community. So why keep them locked up? One of these Palestinians, Mr Al Kateb, went to the High Court challenging the legality of his ongoing detention in 2004. The Commonwealth Solicitor General submitted that the law required detention “until” a visa was issued or “until” they could be removed. He told the court:

“Now of course ‘until’ can involve a long wait. It can involve something continuing forever.  We are all familiar with the expression ‘until hell freezes over’.  That is a use of the word ‘until’ meaning, in effect, forever, because it refers to an event which will never occur.”

By a slender majority of four to three, the High Court bought the argument. The majority of judges were convinced that the Parliament had the power to make a law mandating detention of unauthorised arrivals, without the need for a court order or periodic court review, not only to assist with the processing of claims and with the pending removal of persons but also to keep them segregated from the Australian community.

Days prior to his retirement from the High Court, Justice McHugh who had been one of the four judges in the majority had cause to lament publicly the outcome in the Al Kateb Case. He told a group of law students:

“Al Kateb highlights that, without a Bill of Rights, the need for the informed and impassioned to agitate the Parliament for legislative reform is heightened. While the power of the judicial arm of government to keep a check on government action that contravenes human rights is limited, the need for those with a legal education, like yourselves, to inform the political debate on issues concerning the legal protection of individual rights is paramount.”

On 25 September 2014, Scott Morrison introduced to Parliament the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014. The Migration Act already provided that “An officer must remove as soon as reasonably practicable an unlawful non-citizen” once all prospect of the grant of a visa has been exhausted or once the person detained requests removal from Australia.

Morrison’s  bill contained a new provision (section 197C) which stated: “An officer’s duty to remove as soon as reasonably practicable an unlawful non-citizen … arises irrespective of whether there has been an assessment, according to law, of Australia’s non-refoulement obligations in respect of the non-citizen.” The new law stated: “it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen”.

To appease any fragile consciences in the Parliament, the government explained at the time that all would be well. In the explanatory memorandum on the bill, members and senators were assured:

“This change is in response to a series of court decisions which have found that the Migration Act as a whole is designed to address Australia’s non-refoulement obligations, which has had the effect of limiting the availability of the removal powers. Asylum seekers will not be removed in breach of any non-refoulement obligations identified in any earlier processes. The government is not seeking to avoid these obligations and will not avoid these obligations, rather it seeks to be able to effect removals in a timely manner once the assessment of the applicant’s protection claims has been concluded.”

Mr Morrison left unanswered the question of what happens when both the Minister and his delegate decide not to issue any visa releasing a person from immigration detention despite the fact that it would be unsafe to return a person to a place like Syria during civil war when the person has lived in Australia since he was a child.

In the case decided this week by the High Court, the public servants charged with the Syrian’s removal as soon as possible were concerned that the Syrian was owed protection obligations.  The four judges who constituted the majority in the case said: “It is evident that the Executive found the prospect of the removal of the respondent to Syria in breach of Australia’s non-refoulement obligations unpalatable. In that regard, it is equally evident that, if the Minister wished to avoid the realisation of that unpalatable prospect, a visa might be granted to the respondent”.

What’s shocking about this is that the court knew that the minister had decided not to grant the respondent a visa. The court was telling the bureaucrats to get on and perform their “unpalatable duty”, putting aside “irrelevant considerations” like Australia’s non-refoulement obligations, removing the young Syrian from Australia to a place of danger. It’s as if the judges were simply telling public servants not to be too squeamish about doing their duty.

Who’d have thought that during Refugee Week, Australia’s highest court would endorse the Parliament’s view that our non-refoulement obligations under the Refugee Convention and the Convention Against Torture were now an irrelevance. Parliamentarians who voted for the law could content themselves that the government told them that such hard cases could be resolved by the minister granting a visa. The judges who interpreted the new law contented themselves that all was well even though they were on notice that the minister had no intention whatsoever of granting AJL20 a visa.

Justice Edelman in dissent observed:

“It is, at best, misleading to describe any obligation … as a ‘duty’ upon the Executive to detain AJL20 when the Executive could have released AJL20 by exercise of a general power to grant him a visa …. As Hohfeld cautioned a century ago, the generalised use of ‘chameleon-hued words’ such as ‘duties’ can constitute a ‘peril both to clear thought and to lucid expression’. But, whether or not it would debase the content of a ‘duty’ to speak in terms shrouded in the mystical logic of an obligation of the Executive to do something that it is not obliged to do, it is most unlikely that Parliament intended that significant consequences would turn upon fine questions of abstract legal theory that depended upon a loose characterisation of [the statutory provision] as a ‘duty’ rather than a power”.

The High Court by the narrowest of margins has now endorsed the Morrison-Dutton mantra that we will decide who comes to this country and that those we don’t want will be held in indeterminate detention without a court order for as long as it takes for them to have the decency to request return to war-torn countries like Syria. After a thirty-year tussle, the High Court by the narrowest of margins has thrown in the towel.

This piece first appeared in Eureka Street on 24 June 2021.

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