Last week’s High Court decision – what it means

Last week, the High Court handed down a landmark decision for a stateless refugee held in detention for over two years.

The decision sets parameters around when detention is lawful and has rendered the use of Temporary Safe Haven Visas and Temporary Humanitarian Concerns Visas as invalid when they are used as a way to prevent permanent resettlement of a refugee.

The case raises a number of complex questions and the full extent of its impact and how it might be applied in other cases is yet to be determined.

In the meantime, here are a couple of key points from the case and what they may mean for asylum seekers more generally:

1. The High Court has defined some parameters around when detention is lawful and when it is not.

According to its decision, an asylum seeker that enters without a visa can only be detained for the purpose of

• removing them from the country; or
• assessing whether to grant them a permanent visa to live in Australia; or
• assessing whether to allow them to apply for a visa to live in Australia (often called ‘lifting the bar’)

In each of these situations the Minister must either remove the person or make the assessment as soon as possible. Any departure from this may be unlawful.

What this means:

It raises questions about whether the Minister has the power to detain people for unreasonable periods of time without finalising his assessment of their claims for protection.

This has potential implications for thousands of asylum seekers who have been left in detention for unreasonable periods of time.

2. The High Court ruled that the use of Temporary Humanitarian Concern and Temporary Safe Haven Visas in this case was invalid.  

Both of these visas deny people the right to apply for permanent protection.

What this means:

While it’s still not clear whether this will have broader application, it potentially means that the Minister will not be able to force Temporary Humanitarian Concern and Temporary Safe Haven Visas on asylum seekers currently in detention who have been found to be refugees.

Until now, the Minister had been trying to circumvent the Senate’s decision to disallow Temporary Protection Visas by misusing Temporary Humanitarian Concern and Temporary Safe Haven Visas in order to deny people permanent protection.

Last week’s High Court decision means he will be trying harder than ever to get the new Senate to allow Temporary Protection Visas (TPVs) as a way to deny permanent protection to refugees.

We must continue to fight against Scott Morrison’s efforts to get TPVs through the Senate and demand that he uphold refugees’ rights to permanent protection and the chance to settle properly in our community.

You can help stop TPVs by writing to a Senator from your State today and letting them know why TPVs are bad for refugees and bad for the community:  https://asrc.org.au/news/latest-campaigns/stop-temporary-protection-visas/