Two Recent High Court Developments – Immigration Law (Part 1)

Recently in the High Court there have been two important developments concerning immigration law.


The first involves the validation of processing asylum seekers in Manus Island Papua New Guinea and the second invalidates immigration Minister Scott Morrison’s cap on protection Visas.  This short note will discuss the first of these cases, with Part 2 discussing the second case in a forthcoming note.


In the first decision, asylum seekers will continue to be processed in Papua New Guinea following a ruling by the High Court on 18 June 2014. The High Court dismissed a legal challenge by an asylum seeker who is being held in immigration detention on Manus Island,. He  had argued that his detention was invalid under the Australian Constitution. The court ruled that the Labor immigration Minister at the time Chris Bowen’s designation of Manus Island as a processing centre back in October 2012 was lawful.


The court was asked to look at sections of the Migration Act under which the Government is able to declare another nation as a “regional processing country” to which asylum seekers can be sent, as an alternative to being processed in onshore detention facilities in Australia. The High Court rejected this notion and instead unanimously held that that the sections are valid under the alien’s power contained in the Australian Constitution.


Recently, a Senate inquiry was established to investigate the circumstances surrounding the death of Iranian asylum seeker Reza Berati at Manus Island. The inquiry also provided a detailed look at Australia’s current migration policy of offshore processing and resettlement of asylum seekers. During the Inquiry, those who have spent time working at the detention centre had described insufficient facilities for the number of asylum seekers and dire conditions in violation of basic human rights.



Shruti Dahal            (References available upon request)

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