Peter Dutton to test lower court’s asylum judgment

IMMIGRATION Minister Peter Dutton has launched a High Court challenge to a lower court’s ruling on asylum-seekers.

Immigration Minister Peter Dutton has launched a High Court challenge to back the ­Coalition’s efforts to deport failed asylum-seekers. Picture: Kym Smith

IMMIGRATION Minister Peter Dutton has launched a High Court challenge to a lower court’s ruling that is undermining the ­Coalition’s efforts to deport failed asylum-seekers.

Mr Dutton claims the judgment, handed down by Federal Court judge Anthony North in September, effectively found that “any threat” of an asylum-seeker being detained in their home country would amount to “serious harm” and could trigger Aus­tralia’s refugee obligations.

The judgment has already impacted the proposed deportation of a Tamil asylum-seeker who is “likely to be held for a matter of hours at the airport” if he were ­returned to Sri Lanka, the High Court has been told.

In written submissions, Mr Dutton’s barrister, Stephen Donaghue QC, warned of further “anomalous consequences” if Justice North’s decision was allowed to stand.

“It would allow protection claims to be established based on a real chance of even a short ­period of detention, when more serious infringements of rights may nevertheless fail to constitute persecution,” the submissions read.

Members of an ethnic minority detained for one to two hours at an airport would be considered refugees “even if they had no basis to fear any other form of harm”, they read.

Dr Donaghue said a finding of “serious harm” could trigger the Refugees Convention because failed asylum-seekers would constitute a “social group” protected by the treaty.

Justice North’s decision involved a Tehran-born stateless Kurd who claims he was repeatedly detained, verbally abused and forced to pay bribes by Iran’s ­notorious Basij militia to obtain his release. The Immigration Department’s independent merits reviewer, Graham Barter, in 2011 found the treatment was not “sufficiently significant to amount to serious harm”, noting his detention was irregular, was not physically abusive, and most often ended within 48 hours.

Justice North denied the reviewer that discretion, ruling that serious harm “is constituted by a threat to life or liberty, without reference to the severity of the consequences to life or liberty”.

Richard Niall QC, representing the asylum-seeker, claims Mr Barter’s view that detention must be “sufficiently significant to amount to serious harm” does not appear in the relevant section of the ­Migration Act “in stark contrast to the other paragraphs” in the law.

Mr Niall highlighted former High Court judge Michael McHugh’s finding in 1999 that “unjustifiable imprisonment, if carried out for a convention reason, will invariably constitute persecution for the purpose of the convention”.