Magna Carta shelters asylum-seekers
Asylum Seekers and Refugees
NEXT year is the 800th anniversary of the Magna Carta, signed reluctantly by King John at the demand of his rebellious barons in 1215.
Buried in the middle of this foundational document of English constitutional law — setting out the single measure for wine and ale and the rights of widows on the death of their husband — are these words:
“No freeman is to be taken or imprisoned or disseised … of his liberties … or in any way ruined … save by the lawful judgment of his peers or by the law of the land. To no one will we sell or deny or delay right or justice”.
These words ring through the centuries, and the right to trial by jury is reflected in every common law system in the world.
A few days ago, the High Court of Australia reasserted the fundamental right not to be detained arbitrarily in Plaintiff S4 v Minister for Immigration and Border Protection.
In a strong and unanimous judgment, the court found that the Migration Act 1958 does not authorise the detention of an asylum- seeker “at the unconstrained discretion” of the government’’.
Rather, an alien, whether in Australia lawfully or not, is not an “outlaw” and cannot be detained other than in accordance with the law. The court concluded that the temporary visas granted to the plaintiff were not granted in accord with the law and were therefore invalid. The decision provides an illustration of how complex the Migration Act has become, and of the quiet determination of the High Court to ensure that the rule of law applies to asylum-seekers.
The plaintiff’s story is typical. He arrived by boat in Christmas Island, stateless and without a visa, and was detained for more than two years under the Migration Act.
As an “unlawful non-citizen” he was barred from making an application for a protection visa, unless the minister agreed to lift this bar.
The plaintiff was, nonetheless, found by the Department of Immigration to be a refugee and to have met the character and health criteria for making a visa application.
It is at this stage that the case became unusual. The minister decided to consider whether to allow the plaintiff to make an application for a permanent visa. But, instead of making this decision, the minister chose to grant the plaintiff two visas on essentially humanitarian grounds, one for seven days and the other for three years.
And here is the catch. Each of these visas would prevent the plaintiff from making any future application for a permanent visa. Indeed, it was agreed that the minister’s objective when granting the short-term visas was precisely to prevent an application for a longer-term one.
The legal issue was whether the minister could validly grant the limited visas if the practical effect was to prevent the plaintiff applying for a permanent one. The problem lay with the bar to applying, not the fact of a temporary visa.
The High Court found that the plaintiff’s prolonged detention had no purpose under the Migration Act if the minister grants a visa that forecloses the exercise of his power to decide that an application for a protection visa could be made.
While the decision is a technical exercise in statutory interpretation, the court took the opportunity to clarify the law.
The court found that an alien may be detained lawfully under the Migration Act if it is reasonably necessary, either for his deportation or to enable an application to be made for permission to remain in Australia.
But, and this is the point, a non-citizen can be detained only for a valid statutory purpose.
Of vital importance to the rights of asylum-seekers — often detained for years — is the court’s finding that the decision whether the plaintiff could apply for a visa “must be carried into effect as soon as is reasonably practicable”.
In short, detention is not at the discretion of the executive government, but must comply with the Migration Act.
What is “reasonably practicable” remains to be seen on the facts of any case. But the minister is on notice that, in future, courts may require speedier decision-making that does not leave asylum-seekers in mandatory locked detention for unreasonable periods of time.
It might be thought that to detain a person who meets the legal definition of a refugee, for more than two years, without deciding whether he can apply for a protection visa, will fail this test.
Yet another, and tantalising, aspect of the court’s judgment was its recognition that the “large question” of the right to liberty, if threatened by an invalid decision-making process, remains unresolved.
It is open to the court to consider applying the so-called constitutional writs, such as mandamus, to compel a minister to respect the right to liberty in an appropriate case in the future.
For Plaintiff S4, the outcome of the decision may not be encouraging.
He is back to square one in the sense that he may continue to be detained pending deportation, (unlikely as he is stateless) or pending a decision to allow him to apply for a visa.
The ray of light is that this decision must be made promptly. The time-honoured principle enshrined in the Magna Carta remains alive within Australian common law to prevent arbitrary detention under the guise of executive discretion and to comply with the rule of law.
Gillian Triggs is president of the Australian Human Rights Commission