ELEANOR HALL: The Human Rights Commission is urging the Government to start processing the refugee claims of the 335 asylum seekers who were to have been deported.
The High Court yesterday imposed a permanent injunction preventing the Commonwealth from sending them to Malaysia. And the Government is yet to divulge what will happen to them.
The Human Rights Commission was granted leave to intervene in the case which also dealt with the plight of an unaccompanied child.
The president of the Human Rights Commission Cathy Branson spoke to Alexandra Kirk:
CATHERINE BRANSON: Well I think the thing that we were most pleased about was to have the court give a definitive ruling on how the minister's obligations as guardian of unaccompanied minors who come to Australia with the intention of staying, how those responsibilities work together with the responsibilities under the Migration Act.
ALEXANDRA KIRK: Now the upshot is that the Minister has to give his written consent for an unaccompanied minor to be sent from Australia and that will be able to be tested in a court as well.
So do you think as a result of this decision that the Government will be able to send unaccompanied minors elsewhere for processing?
CATHERINE BRANSON: Well I think if the law stays in the same form that it's in we know that the Minister as the guardian must give his written consent as you say under the act that makes him a guardian. And the decision he makes under that act will be judicially reviewable. And we are confident that he is obliged under that act to take into account the best interests of the child concerned.
Now it's possible to think of a case in which it would be in the interests of a child to go to a third country. The most obvious example is if the child's parents were in that country or if the child had not p parents their grandparents for example or other family members were there.
But for the bulk of children who come to Australia unaccompanied it's not easy to envisage that it would be in their best interests to be removed from Australia.
ALEXANDRA KIRK: You've cautioned the Government not to rush towards alternative solutions. They haven't ruled out going back to temporary protection visas or Nauru although they are conceding that early legal advice is that there's a big question mark over Nauru or any other offshore processing. What about Manus Island do you think?
CATHERINE BRANSON: Look I think what is important is that the Government think carefully about the implications of this decision and reflect on how they can act in a way that is consistent with their international human rights obligations and also consistently with the humanitarian approach for which Australia I think will wish to be known.
There are some alternatives that may be open of the kind you've mentioned. But where they've been tried before most of them we know have really been damaging to the individuals concerned and indeed in many cases had the result that ultimately people came back to live in Australia but came back people who've been damaged by their experiences.
ALEXANDRA KIRK: Including Manus Island?
CATHERINE BRANSON: Well I'm not able to speak particularly of Manus Island. But we would have to think very carefully I think before we utilised it as a place to send people.
ALEXANDRA KIRK: Three hundred and thirty-five asylum seekers have arrived on Christmas Island since the Government signed the deal with Malaysia. How long do you think the Government can leave them there while it scouts around for an alternative to the Malaysia solution?
CATHERINE BRANSON: We're very concerned about people being held effectively in limbo on Christmas Island and in circumstances where they don't have access to all of the services and facilities we'd normally expect to be made available to someone who comes to Australia seeking protection.
So we would urge the Minister to move very promptly to remove them from this limbo situation. And we suggest that the appropriate option is to now process them as we would have done before and to have their claims assessed.
ALEXANDRA KIRK: Would your body, the Human Rights Commission, consider taking action against the Government on that front?
CATHERINE BRANSON: Well we're not authorised to institute litigation ourselves. We are involved in advocacy with the Government. And if there is litigation on foot we can when satisfied of certain criteria intervene or seek leave to intervene in that proceeding. But we do urge the Government to process these people promptly and have their claims assessed.
ALEXANDRA KIRK: Have you put that directly to the Government?
CATHERINE BRANSON: Yes we have.
ALEXANDRA KIRK: When?
CATHERINE BRANSON: I think a formal letter did go quite recently, within the last day or so. But our views on this I think have been known to the Minister for some time.
ALEXANDRA KIRK: And has the Government responded?
CATHERINE BRANSON: Not yet.
ELEANOR HALL: That's the president of the Human Rights Commission Cathy Branson speaking to Alexandra Kirk.
The High Court yesterday imposed a permanent injunction preventing the Commonwealth from sending them to Malaysia. And the Government is yet to divulge what will happen to them.
The Human Rights Commission was granted leave to intervene in the case which also dealt with the plight of an unaccompanied child.
The president of the Human Rights Commission Cathy Branson spoke to Alexandra Kirk:
CATHERINE BRANSON: Well I think the thing that we were most pleased about was to have the court give a definitive ruling on how the minister's obligations as guardian of unaccompanied minors who come to Australia with the intention of staying, how those responsibilities work together with the responsibilities under the Migration Act.
ALEXANDRA KIRK: Now the upshot is that the Minister has to give his written consent for an unaccompanied minor to be sent from Australia and that will be able to be tested in a court as well.
So do you think as a result of this decision that the Government will be able to send unaccompanied minors elsewhere for processing?
CATHERINE BRANSON: Well I think if the law stays in the same form that it's in we know that the Minister as the guardian must give his written consent as you say under the act that makes him a guardian. And the decision he makes under that act will be judicially reviewable. And we are confident that he is obliged under that act to take into account the best interests of the child concerned.
Now it's possible to think of a case in which it would be in the interests of a child to go to a third country. The most obvious example is if the child's parents were in that country or if the child had not p parents their grandparents for example or other family members were there.
But for the bulk of children who come to Australia unaccompanied it's not easy to envisage that it would be in their best interests to be removed from Australia.
ALEXANDRA KIRK: You've cautioned the Government not to rush towards alternative solutions. They haven't ruled out going back to temporary protection visas or Nauru although they are conceding that early legal advice is that there's a big question mark over Nauru or any other offshore processing. What about Manus Island do you think?
CATHERINE BRANSON: Look I think what is important is that the Government think carefully about the implications of this decision and reflect on how they can act in a way that is consistent with their international human rights obligations and also consistently with the humanitarian approach for which Australia I think will wish to be known.
There are some alternatives that may be open of the kind you've mentioned. But where they've been tried before most of them we know have really been damaging to the individuals concerned and indeed in many cases had the result that ultimately people came back to live in Australia but came back people who've been damaged by their experiences.
ALEXANDRA KIRK: Including Manus Island?
CATHERINE BRANSON: Well I'm not able to speak particularly of Manus Island. But we would have to think very carefully I think before we utilised it as a place to send people.
ALEXANDRA KIRK: Three hundred and thirty-five asylum seekers have arrived on Christmas Island since the Government signed the deal with Malaysia. How long do you think the Government can leave them there while it scouts around for an alternative to the Malaysia solution?
CATHERINE BRANSON: We're very concerned about people being held effectively in limbo on Christmas Island and in circumstances where they don't have access to all of the services and facilities we'd normally expect to be made available to someone who comes to Australia seeking protection.
So we would urge the Minister to move very promptly to remove them from this limbo situation. And we suggest that the appropriate option is to now process them as we would have done before and to have their claims assessed.
ALEXANDRA KIRK: Would your body, the Human Rights Commission, consider taking action against the Government on that front?
CATHERINE BRANSON: Well we're not authorised to institute litigation ourselves. We are involved in advocacy with the Government. And if there is litigation on foot we can when satisfied of certain criteria intervene or seek leave to intervene in that proceeding. But we do urge the Government to process these people promptly and have their claims assessed.
ALEXANDRA KIRK: Have you put that directly to the Government?
CATHERINE BRANSON: Yes we have.
ALEXANDRA KIRK: When?
CATHERINE BRANSON: I think a formal letter did go quite recently, within the last day or so. But our views on this I think have been known to the Minister for some time.
ALEXANDRA KIRK: And has the Government responded?
CATHERINE BRANSON: Not yet.
ELEANOR HALL: That's the president of the Human Rights Commission Cathy Branson speaking to Alexandra Kirk.
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