Asylum Seekers Lawfully Detained At Sea: CPCF v Minister for Immigration and Border Protection [2015] HCA 1

Thursday 29 January 2015 @ 11.37 a.m. | Immigration

In a 4:3 majority decision, the High Court has dismissed a claim for damages for false imprisonment resulting from the interception and detention of an asylum seeker boat in Australia’s contiguous zone last year.  Former immigration minister Scott Morrison welcomed the decision on Twitter, and new minister Peter Dutton told the Sydney Morning Herald that the case had “vindicated” the government and said he would now consider the judgment “in detail”.  The executive director of the Human Rights Law Centre, Hugh de Kretser, told The Guardian:

“while the high court ruling is disappointing, the case brought vital scrutiny and helped ensure 157 people’s refugee claims are assessed.”

The Sydney Morning Herald has also reported that there were 15 boat turnbacks in total during 2014, and that these had taken “various forms” according to the head of Operation Sovereign Borders, Lieutenant General Angus Campbell.

Facts

In June 2014, 157 Tamil asylum seekers were intercepted by an Australian customs vessel.  Their boat, which was under the Indian flag, became unseaworthy, and the passengers were transferred to the Australian customs vessel.  The passengers were detained on the boat for 29 days.   Originally, the customs vessel began to sail back to India as a consequence of a decision by the National Security Committee of Cabinet.  However, Australian authorities could not come to an arrangement with the Indian authorities that would provide for the discharge of the passengers.  The customs vessel then returned to Australia, and the asylum seekers remain in detention in Nauru.

The case was brought by a Tamil asylum seeker known as CPCF, who claims to have a “well-founded fear of persecution” in Sri Lanka.  CPCF argued that Australia’s obligations under international law should limit the scope of the application of the Maritime Powers Act 2013 (Cth) and that his detention was unlawful for some or all of the time he was on board the customs vessel.

Decision

Chief Justice French and Justices Crennan, Gageler and Keane all found that section 72(4) of the Maritime Powers Act 2013 authorised a maritime officer to detain the plaintiff for the purpose of taking him to a place outside Australia (i.e. India), and that this authorisation was valid regardless of the fact that Australia and India had not agreed at the time that this would, in fact, occur.  The majority also found that there was no requirement for the government or the maritime officers to provide the asylum seekers with any due process protections, such as a hearing.  Justices Bell, Hayne and Kiefel wrote dissenting opinions.

Changes to the Maritime Powers Act

Maria O’Sullivan of Monash University, wrote in The Conversation:

To some extent, the High Court’s decision has already been overtaken by changes made to Australian migration legislation by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014… [which] clarified the legal position about international law by removing references to Australia’s non-refoulement obligations from domestic law and expanding the powers of the immigration minister over vessels in the Maritime Powers Act.

However, she noted that there are still important legal issues to resolve, including that detention under the amended Maritime Powers Act has the potential to be infinite.

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