Transparent review needed to assure people that “ASIO’s decisions are based on sound grounds” … Nicola Roxon.MORE than 50 refugees judged to be a risk to national security by ASIO may be released from indefinite detention after the High Court yesterday struck down the regulation that prevented them being granted protection visas.
The refugees are also poised to win the right to challenge their adverse assessments following the landmark decision on the case of a 36-year-old Tamil refugee from Sri Lanka.
David Manne, who launched the action on the man’s behalf, yesterday appealed to the government to promptly release his client, who has been in detention for almost three years and is suffering from depression, as well as other asylum seekers in the same situation.
”The only thing that stood between our client, a refugee visa and his freedom was a regulation which the court has ruled is invalid,” Mr Manne said. ”The government should act urgently to end not only the detention of our client but others in a similar predicament.”
The husband of another of Mr Manne’s clients, Ranjini, the pregnant mother of two young boys, last night pleaded with the Immigration Minister, Chris Bowen, to release his wife. ”Every day, every hour, every minute in detention is upsetting her and the boys,” he said.
The Attorney-General, Nicola Roxon, said the government would ”quickly consider the implications for the 50 or so people that are in similar circumstances” and move promptly to introduce a transparent review mechanism ”so there is an extra assurance for people that ASIO’s decisions are based on sound grounds”.
The opposition immigration spokesman, Scott Morrison, expressed dismay that the court had found ”that our government has no power to keep known security risks out of our community”.
Mr Morrison vowed to work with the government to ”restore the powers needed to protect our national security” and is due to meet Mr Bowen on Tuesday.
Mr Morrison called on Mr Bowen to ”advise what arrangements and safeguards will be put in place in relation to the imminent release into the community of those found by ASIO to be a security threat”.
The Greens senator Sarah Hanson-Young called on the government to implement a more humane approach to those deemed security risks, saying the unlawful detention of the refugees, including three family groups with young children, had only compounded the trauma they had endured as refugees.
In a complex judgment, four of the seven judges said the government’s decision to refuse a protection visa to the asylum seeker, identified only as M47, had not been made according to law because it relied on an invalid regulation.
While M47’s continued detention was lawful while his application for a refugee visa was re-assessed, the judges warned that he would be entitled to seek a review by the Administrative Appeals Tribunal if Mr Bowen refused him a visa because of the ASIO assessment.
Significantly, the court found that M47 had not been denied procedural fairness in the ASIO assessment process.
Because the challenge was upheld on the basis of the invalid regulation, the four judges did not consider the question of whether a landmark 2004 ruling, in which the government’s right to hold asylum seekers indefinitely was upheld by a 4-3 majority, should be reconsidered. Two other judges did suggest that ruling could be overturned.
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