More than 100 Afghan asylum seekers could have their failed refugee assessments reviewed after a court ruled that former immigration minister Chris Bowen had illegally ordered one man's removal to Afghanistan.
The Federal Court on Wednesday spared the man's removal to Afghanistan after he had spent about two years in detention.
All five judges on the bench described former immigration minister Chris Bowen's handling of the case of a Hazara, detained for more than two years, as ''disturbing''.
They declared Mr Bowen's decision invalid and restrained Immigration Minister Brendan O'Connor from removing the man ''until the claims for protection … have been assessed according to law''. The court also declared that his previous refugee assessment had not been carried out lawfully.
The decision is a setback for the government's hopes of using the involuntary return of ''failed'' asylum seekers to deter more arrivals.
The Hazara man, 34, arrived in 2010, claiming that the Taliban would kill him if he returned. He was scheduled to be flown to Afghanistan last September, having failed his refugee assessments.
Mr Bowen then had personal legal powers to grant him a visa if it was in the public interest. But on the same day that he was asked to decide whether to use these powers, he said he would not consider it, even if he was wrong and even if the assessments of the man were factually or legally wrong.
The minister's lawyers later argued that offshore entry persons did not have a right to compel him to use his powers, which were discretionary and not subject to judicial or parliamentary review.
The court held exercising those powers would ''[require] a decision-maker to hear and genuinely take into account what he has been told'', for procedural fairness. ''An opportunity to speak to a decision-maker who does not listen is no opportunity at all.''
Victor Harcourt, principal of public law at Russell Kennedy, which represented the man, said: ''This decision will have an immediate and significant impact on 100 or more other Afghan asylum seekers that we know to be in a similar position to our client.''
The Asylum Seeker Resource Centre's spokeswoman, Pamela Curr, said the decision showed ''toxic politics does not reign supreme and the rule of law and justice still have a chance''.
Afghans comprise the second-biggest ethnic group with 2286 arrivals this year, including more than 200 who arrived on three boats this week.
A spokeswoman for Immigration Minister Brendan O'Connor said the federal government's lawyers were reviewing the judgment.
http://www.theage.com.au/opinion/political-news/court-scolds-bowen-over-hazara-c...With the current race to the bottom by the major parties on asylum seeker policy, it is always good to see evidence of the Rule of Law being alive and well in this country. This makes the fact that we have dumb and dumber as the two options for PM in September a little less troubling.
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