Lawyers for an Iranian asylum seeker are to appear before the High Court in Canberra to challenge the federal government's decision to send their client to Manus Island.
(Transcript from World News Radio)
It's a case refugee lawyers will be watching closely because they say if the action succeeds, offshore processing in Papua New Guinea might have to stop.
Of all the problems at Manus Island since its re-opening under the previous Labor government, the death of the Iranian asylum seeker Reza Berati in February is the most serious.
And this week during an appearance on the BBC's Hardtalk program the Communications Minister Malcolm Turnbull was asked whether the Manus centre should be closed down.
"What we want to see is it being properly run and we're taking the steps to ensure that happens of Scott (Morrison) is taking the steps to ensure that happens but it is, you've got to remember this was set up by Kevin Rudd, and I'm not trying to pass the blame game this is just the facts, right, Kevin set it up in a screaming hurry to try to get Labor's immigration, border protection house in order before an election."
To get Manus running again, the former Labor government amended the Migration Act in October, 2012.
The then Immigration Minister Chris Bowen enacted a law declaring Papua New Guinea a regional processing country under the Migration Act.
It's this action by Chris Bowen that forms the basis of the High Court challenge.
It's being mounted by lawyers appearing for an Iranian asylum seeker who arrived in Australia by boat and claimed refugee status and was subsequently sent to Manus.
When the challenge was filed last August, barrister Mark Robinson told the ABC he's arguing against the legal basis of Chris Bowen's 2012 declaration.
"We've challenged the legality of the declaration on half a dozen grounds of judicial review or administrative law grounds. The primary group of grounds are that the Minister for Immigration failed to take into account relevant considerations that he was obliged to take into account and that he had regard to things that he shouldn't have taken into account. It's also fair to say that it's subject of legal unreasonableness in that in the circumstances a decision that no sensible minister acting with real appreciation of their job would have decided."
Mr Robinson says there were other factors the minister failed to take into account which he says he should have, including issues relating to PNG's domestic law and its international obligations.
There was also a letter sent to the government from the UN Refugee agency which detailed concerns about its PNG plans.
These included PNG's failure to sign international treaties against torture, and the absence of any legal framework to address refugee issues.
Lawyer Stephen Keim, who's not appearing in this case but is following it, says the federal government decided to amend the Migration Act because of an earlier High Court decision to strike out the so-called Malaysia Solution.
Mr Keim says this made it easier for the government to have a legal basis to send people to PNG because it put most of the decision-making power in the hands of the Minister for Immigration.
"Well what the government did was it tried to make it much clearer that it was simply opinion based and it stripped back a number of the criteria so that almost the only criteria at the moment is national interest but of course national interest contains within it a whole number of values which a court will have to construe at some stage."
Mr Keim says the High Court will be asked to consider whether Minister Bowen acted in the national interest in October, 2012.
In his view, what's happened since shows the decision wasn't in Australia's national interest.
"What's interesting is, that if you look at what's happened particularly on Manus Island since then, and if you look at some of the litigation that's taken place in the Papua New Guinea courts then you'd say well whether the minister did it properly at the time or not he certainly got it wrong because if you look at what happened it hasn't turned out to be in Australia's national interest because so many bad things have happened."
Share
