Australians expect their government to own up and wear the consequences of its mistakes. When you deny people their rights and detain them without proper basis, you don’t get to fix it retrospectively. “It is a cheap band-aid approach to a flawed policy and undermines our rule of law. “The effect of the bill will simply maintain the status quo for unauthorised maritime arrivals … The government will not hesitate to legislate to protect the integrity of Australia’s migration framework,” home affairs minister Peter Dutton told parliament.Įstrin said the level of retrospectivity in the government’s bill was unprecedented. The migration (validation of port appointment) bill 2018, would seek to ensure that Ashmore Reef was a “properly proclaimed port” and that “all things done … which relied on the terms … are valid and effective”. In response to the court challenge, the federal government has moved an uncommon piece of legislation – seeking to retrospectively legitimise Ruddock’s faulty appointment. While he can now take his case to the Administrative Appeals Tribunal, he cannot ever lodge a permanent protection visa because the laws have changed since his arrival.” The asylum seeker we represented has been in detention for five and a half years. “They were all stripped of the opportunity to lodge permanent protection visa applications and to have their case reviewed by the Administrative Appeals Tribunal. Partner with Estrin Saul Lawyers Daniel Estrin brought the challenge in the federal circuit court, on behalf of three asylum seekers – two of whom were brought into Australia through Ashmore Reef, and another, who, for years, was told by the government he had, but who never actually went there because of poor weather.Įstrin said his clients, and potentially more than the 1,600 identified by the government, had had their legal rights unfairly denied them. The appointment was superseded when the entirety of Australia was excluded from the Australian migration zone in 2013 – a legal sophistry which prevented any boat-borne asylum seeker, regardless of where they arrived, from applying for permanent protection.īut, according to the Australian government’s own submissions before the court, up to 1,600 asylum seekers may have been denied their right to apply for permanent protection, wider review rights, as well as being unlawfully detained, by the invalid appointment. It was, it seems, navigable, but it was not disputed that the area was not, and could not be, used for the transfer of goods or passengers from vessels unless that transfer was to another vessel.”įor 11 years, the invalid appointment was upheld: asylum seekers were told they were excluded from making claims for permanent protection, and, in many cases, held in immigration detention. The area was an area of water within a reef. And it was not.Īs Judge Justin Smith said: “the facts clearly establish that the relevant area was not a ‘port’. In order for the minister to declare something a proclaimed port, it must first be a port. But a court judgement, delivered in the federal circuit court this month – a full 16 years later – has found the minister had no power to do so.
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