Manus Asylum Seekers Launch High Court Action
Wednesday 25 May 2016 @ 9.51 a.m. | Legal Research | Immigration
On Wednesday the 4th of May 2016, the ABC News reported that 757 asylum seekers held on Manus Island had launched a High Court action seeking their immediate removal from Manus Island to Australia. The action is reported to be prompted by the previous week's decision in the Papua New Guinea Supreme Court ruling that the detention centre on Manus Island breached PNG's constitution.
The ABC reports that the application for an urgent injunction was filed by human rights barrister Jay Williams. Also, the asylum seekers are reported to be seeking an order from the High Court preventing the Australian Government from moving them to Nauru.
Further, it is alleged as part of the action that both the Australian and PNG governments have committed "gross" human rights breaches which include forcible detention, torture and degrading treatment and false imprisonment.
Basis of the Claim
As The Conversation reports, the asylum seeker detainees are asking the High Court to use its "original jurisdiction" to judicially review their transfer to and detention on Manus Island. The original jurisdiction of the court is covered in Commonwealth Constitution section 75 which provides:
In all matters:
(i) arising under any treaty;
(ii) affecting consuls or other representatives of other countries;
(iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party;
(iv) between States, or between residents of different States, or between a State and a resident of another State;
(v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.
The argument for the detained asylum seekers is that they are detained illegally on ". . . international, constitutional, administrative and civil law grounds . . . " and are seeking the High Court to declare that their detention constitutes:
- forcible deportation resulting from being expelled from Australia and transfer forcibly to Manus Island in contravention of international law;
- arbitrary and indefinite detention, resulting from the “no advantage” principle;
- torture, inhumane and degrading treatment;
- denial of fundamental human rights, fair hearing and legal representation;
- unlawful death, false imprisonment, trespass and negligence.
What the Claim Hopes to Achieve
At the heart of the claim is relief by way of "habeas corpus", in other words the notion that you cannot be imprisoned indefinitely without trial, or as The Conversation puts it:
"They want to be brought before the High Court so its judges can determine whether their detention is legal."
The claim for habeas corpus is supported by the seeking of writs for mandamus and prohibition to see them brought to Australia for processing and not moved anywhere else until the matter is heard.
Other Actions may result
It is also reported that the detainees will seek damages and costs and may also take further action in PNG for financial compensation.
As yet there has been no further information on the proceedings but with a Federal election in progress, where the issue of asylum seekers and border protection is still being raised, it will be an important case to follow as it progresses in the High Court.
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