Asylum seeker Ali’s successful day in court

“Only last week a Shia mosque was bombed in Pakistan, and there are a number of accounts of buses being stopped in Pakistan by militants and the Shia being taken off and then executed.”

Once again, former Immigration Minister Scott Morrison’s ruthless determination to prevent refugees arriving by boat from getting permanent residence has been successfully challenged.

On Wednesday, the High Court ordered current Minister for Immigration Peter Dutton to grant a permanent protection visa to a Pakistani Hazara ‘S297’. This is the second win Mr ‘S297’ has had over the Minister in a year. We shall give him a name ‘Ali’, not his real name, but more human than the number.

Briefly the background is that Ali arrived on a boat in May 2012. He was detained and then labelled an ‘offshore entry person’. As such, he could not make a protection visa application unless the Minister personally intervened. The then Minister allowed him to apply in September 2012 but a case officer refused his case. On review, the Refugee Review Tribunal (RRT) found Ali to be a refugee in May 2013.

Such a finding is not surprising, given the targeting of Shia Hazaras in Pakistan by the Pakistani Taliban and other militant groups – often just because they are Shia, not Sunni. Only last week a Shia mosque was bombed in Pakistan, and there are a number of accounts of buses being stopped in Pakistan by militants and the Shia being taken off and then executed.

After apparently winning his case in May 2013, nothing happened for Ali until 2014 apart from him no longer being an offshore entry person but becoming an ‘unlawful maritime arrival (UMA) in June 2013. With the election of the Coalition in September 2013, the new Minister incorrectly referred to people such as Ali as ‘illegal maritime arrivals’. This was not a mere slip of the Ministerial tongue, but part of a deliberate campaign of vilification of refugees arriving by boat that goes back to the Howard era for the Coalition.

Several attempts to reintroduce Temporary Protection Visas (TPVs) were unsuccessful after the Senate disallowed the regulations so the then Minister determined that the number of protection visas would be limited in a year, thereby putting all unfinished cases on hold.

This was the subject of the first High Court Case for Ali, S297 v MIBP [HCA] 24 on 20 June 2014. The High Court held that the Minister could not limit the number of protection visas he was to grant because the Howard era amendment of s65A required protection visas be decided in 90 days. The High Court held the capping of visa grants was unlawful, and directed the Minister make a decision on the application by 21 July 2014.

The then Minister responded by using a previously rarely used regulation clause 866.226 – the national interest criterion. Ali’s visa was refused on 17 July 2014 in ‘the national interest’ and this was explained that because he arrived by boat, he would not be granted a permanent protection visa. This was consistent with the Government’s policy of never granting permanent residence to someone who arrived by boat, despite the finding by the RRT that Ali was a refugee.

However, Ali and his legal team did not give up. They returned to the High Court and challenged this decision on 17 July 2014. There were a number of very significant events between the refusal and today. The most significant was the passing of the Migration and Maritime Powers (Resolving the Asylum Legacy caseload) Act on 16 December 2014.

This contentious Act reintroduced TPVs and purported to convert any previous application for a permanent protection visa into an application for a TPV. A consequence was that holders of TPVs would never get permanent residence unless they were able to change their visa to the awkwardly named Safe haven Enterprise Visa (SHEV), and after 40 months, maybe they can apply for some other visa, but never a permanent protection visa.

The Minister’s lawyers argued that even if the decision of 17 July to refuse ‘on the national interest’ were invalid, then the new law applied and all Ali would get would be a TPV. The High Court, in a unanimous decision, disagreed. The Minister was ordered by a peremptory writ to grant a permanent protection visa to Ali.

Such a result is almost unheard of from the Courts because the courts just do not order that a visa be granted, but instead instruct the decision maker to remake the decision lawfully. However the Court was not prepared to let the Minister once again prevent Ali from getting his permanent visa. The Court stated that the Minister’s decision of 17 July was ‘legally wrong’ and ‘the Minister should not now be given any further opportunity to identify a reason for refusing the plaintiff’s (Ali’s) application.

As yet it is not clear how many other refugees would benefit from the decision but it will be closely studied in Canberra and by lawyers and refugees. It may be too early to hope that the Government will rethink the unwarranted harshness of the TPV and the harm it will cause for refugees, but this decision will not be the last challenge to the TPV – the cruel visa we cannot justify.

Kerry Murphy is a partner with the specialist immigration law firm D’Ambra Murphy Lawyers and member of the boards of the IARC and JRS.

This article was first published at Eureka Street.

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