Asylum Seekers: The latest plan: The next challenge
Wednesday 4 September 2013 @ 9.35 a.m. | Immigration
The inevitable legal challenge to the latest plan to off-shore asylum seekers, the Papua New Guinea Solution (PNG Solution) has been lodged. The arrangements with PNG are now facing their first legal challenge as lawyers representing an asylum seeker sent to PNG's Manus Island are reported by various news sources, to be ready to launch a High Court action.
The key grounds of the proposed case are that the decision to send asylum seekers to PNG is illegal because it fails to take account of Australia's international treaty obligations under the UN Refugee Treaty and PNG's domestic laws.
The current government in response to the challenge is reported as saying it has taken previous legal challenges into consideration and ". . . been entirely mindful of earl[ier] determinations by the Australian High Court'.
The case for the asylum seeker it is reported, "will argue that [the] Immigration Minister . . . had before him no evidence that Papua New Guinea would act, or was capable of acting, in accord with assurances that asylum seekers would not be at risk of being sent to another country where they had a well-founded fear of persecution". Further it is to be argued for asylum seekers that the governments decision to send them to Manus Island was made "without power, is invalid and should be set aside".
The government is reported as planning to fight the challenge and is said to be intent on continuing transfers of asylum seekers to PNG until the court action's outcome is known. The Federal Attorney-General is reported to have released a statement disputing that the case could be started in the Federal Court, but lawyers for asylum seeker are reported to accept that the Federal Court did not have jurisdiction to hear the case, but were confident the High Court did.
To support the challenge, advice from the United Nations refugee agency is expected to indicate that PNG is not a signatory to the international conventions against torture or those covering statelessness and that there is no effective national legal or regulatory framework to address refugee issues. The UN agency is quoted as expressing concern that there are currently no laws or procedures in place in PNG for the determining of refugee status under the refugee convention. Other concerns include the risk of refugees being returned to the place where they face persecution and the quality of protection available for refugees and asylum seekers.
The PNG Solution follows on an ever increasing range of prohibitions flowing from both major political parties like the recent excision of the Australian mainland from the migration zone in an attempt to deter the arrival of asylum seekers - a move that has angered the UNHCR because prior to the changes, asylum seekers who successfully reached the mainland by boat could not be sent offshore to Nauru or Papua New Guinea for processing. The legislation was supported by the Opposition, who said it was almost identical to legislation put forward by them in 2006.
The results of the case should it proceed to an outcome will be interesting to see after the election as "offshore detention" is a component of the asylum seeker policy for both the current government and current opposition.
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