ERRONEOUS OFFSHORE LAWS

Erroneous Offshore Laws
[Broadcast On: 27/04/2020]

1). In the previous posting of early March 2020, we've touched upon the subject of Australian Government authorising the offshore asylum-seekers to process under the PNG or Nauruan Laws. The question of lawfulness of such procedure has been most critical since the government's entire Border Protection Policy had been built upon this "offshore processing". I would say that such fundamental question on the policy and conducts of Australian government might not have arisen in this way, if not for the valiant actions of Bomana53#.

2). In dealing with such fundamental questions, however, we, as the community activists, have had some problems. Ostensibly, we are dealing with a cunning government with manipulative press which seeking to protect their vested interests in offshore detention. On the one hand, as the community activists looking into such secretive offshore businesses, we will not have accurate information on issues. We, the general public, cannot compel truthful answers from the government especially about offshore detention in anyway. So therefore, we must rely upon information extracted from the best source available, such as that of High Court judgments.

THE BOMANA NON-VIOLENT RESISTANCE ACTION

3). In essence, the non-violent resistance by Bomana53# has highlighted the government's fraudulent asylum processing procedures. The core of Bomana53# had insisted, in this long and torturous 7 years, that their asylum applications must be processed under Australian Laws. Their important action must be properly recognized.

Recognizing its importance, we must also analyse whether this is the right and proper action. We, the refugee activists, would have no question about the asylum-seeker's right (Human Rights) to resist the unjust actions of Australian government in such non-violent ways. Nevertheless, I had sometime been asking to myself this question: Is the Bomana53# action in "legal and technical sense" a correct one ?

Based on my observations of which I'll share at length in the followings, the action taken by Bomana53# has also been the right and proper in legal and technical sense.

AUSTRALIA AND ITS CONVENTION OBLIGATIONS

4). In regards to who is responsible for the well beings offshore asylum-seekers taken to PNG and Nauru, the government officials have pointed to Contractors and PNG/Nauruan Governments. Again, as for the grant of protection visa, the government deny it has the responsibility. In contrast, the human rights organisations, including UNHCR, have said that the matters of offshore asylum-seekers are the responsibility of Australia. On these conflicting claims, let us consult with HCA judgments. The full bench of HCA Judges, as is in M61/2010, unanimously have said [#7]:

"27 ..... the Migration Act contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol. ...... what is presently significant is that the Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason."

Therefore Australia has (i) the international obligations -- i.e. Convention Obligation -- to grant protection visa to asylum-seekers and (ii) Australia must not return the person to face danger and persecution (non-refoulement).

5). We also note that Australia's Migration Act (1958) and its amendments -- about 200 of them -- are 'interconnected set of statutory provisions' that contain to undertake the Refugee Convention. In fact, Section 36(4)(a,b) of the Act states:

(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.

Asylum-seekers who applied for protection "onshore" will be subjected to above provisions. However, for those who arrived Australia by boat without valid visa, the Unauthorised Maritime Arrivals (UMAs), the provisions for regional processing will be applied by Sections 198AB, 198AD, 198AHA. Out of these, the Section 198AHA is for government financing of offshore detention. Section 198AD is allotted for removal of UMAs to another country.

6). For processing of asylum-seekers offshore, the Section 198AB is applied [#20]. In details 198AB(3)(ii) has given:

"(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; "

Here, 'the country' referred to the regional processing country, i.e. PNG or Nauru. As you can see, above statutory provision appeared to have set out for maximum flexibility and there are various possibilities for processing of UMAs. Whether lawful or unlawful about the process will depend upon how the assessment that has been carried out under this statutory provisions. If PNG or Nauru permits Commonwealth government processing of UMAs, it is a valid process. However, if PNG or Nauruan government itself making assessment on those UMAs, the process will not be valid. In any case, the first part of enactment, "the country will make assessment", appeared to be erroneous one.

HCA M68/2016 HINTS

7). As regards offshore detention regime, things were not well within the area of asylum processing that may have reflected in the M68/2016 HCA judgment [#1]. As you all know, in M68 case, the High Court had made determination mainly on whether Section 198AHA being a valid law in regards to Commonwealth government funding of contractors on offshore detention facilities. By that time (2015/16) the judges are quite aware that certain unusual form of asylum processing being in progress on Nauru [#1]:

"4 The plaintiff claims to be a refugee to whom the Refugees Convention applies. She has applied to the Secretary of the Department of Justice and Border Control of Nauru to be recognised by Nauru as a refugee. Her application has not yet been determined."

The High Court majority (French CJ, Kiefel J, Nettle J) further noted:

"46 Section 198AHA(2) authorised the Commonwealth to give effect to the second MOU including by entry into the Administrative Arrangements with Nauru and the Transfield Contract. The Commonwealth had power to fund the Centre and the other services to be provided under those arrangements. ..... Section 198AHA is incidental to the implementation of regional processing functions for the purpose of determining claims by UMAs to refugee status under the Refugees Convention. The exercise of the powers conferred by that section must also therefore serve that purpose. ....... If, upon a proper construction of s 198AHA, the section purported to authorise the Commonwealth to support an offshore detention regime which went beyond what was reasonably necessary for that purpose, a question might arise whether the purported authority was beyond the Commonwealth's legislative power with respect to aliens."

8). We know that the private law farm, the Craddock Murray Neumann Lawyers Pty Ltd (209, #1), had been contracted out for the asylum-seekers on Nauru. Similar process was reported on Manus Island, as of 2014, by the public media. We must further looking into details about the validity of these contractor's engagements in offshore asylum-processing.

Cheers, NetIPR.

Bomana Pages
http://www.aus4iccwitness.org/node/83
M61/2010 HCA Judgment
[#7] http://www.aus4iccwitness.org/legal-resources/20101118_m61-hca-judgment.pdf
M68/2016 HCA Judgment
[#1] http://www.aus4iccwitness.org/legal-resources/20160203_m68-hca-judgment.pdf
[#20] s 198AB
http://www5.austlii.edu.au/au/legis/cth/consol_act/ma1958118/s198ab.html
(3) In considering the national interest for the purposes of subsection (2), the Minister:
(a) must have regard to whether or not the country has given Australia any assurances to the effect that:
(i) the country will not expel or return a person taken to the country under section 198AD to another country where his or her life or freedom would be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion; and
(ii) the country will make an assessment, or permit an assessment to be made, of whether or not a person taken to the country under that section is covered by the definition of refugee in Article 1A of the Refugees Convention as amended by the Refugees Protocol; and
(b) may have regard to any other matter which, in the opinion of the Minister, relates to the national interest.