Unaccompained Minor: Astralian Affair

OFFSHORE processing has become "unworkable" after legal advice from commonwealth Solicitor-General Stephen Gageler SC confirmed deported children would have access to the courts to contest their removal.
Raising the spectre of last year's Christmas Island shipwreck, Immigration Minister Chris Bowen said the High Court's ruling last week made it clear it was not possible to send unaccompanied minors overseas "in any workable way".
"That's a significant change," Mr Bowen said.
He said the ruling on minors created an "obvious problem" that people smugglers would likely exploit.
"(That is) an incentive to put children on boats to make that dangerous boat journey," Mr Bowen said.
Last week's court ruling found that the Immigration Minister, who is also the legal guardian for all unaccompanied minors, could not deport children without written consent.
"The minister cannot give valid consent to the removal or taking unless the minister forms a state of satisfaction, able to be regarded by a court as reasonable, that the removal of the minor would not prejudice the interests of the minor," Mr Gageler said.
Mr Gageler told the government those decisions would be subject to review by courts.
That could potentially result in deportations being delayed for months or years as minors litigated their way through the courts.
That would largely defeat the original purpose of offshore processing, which was to remove asylum-seekers from the jurisdiction of the courts.
However, Tony Abbott yesterday rejected suggestions the court's judgment on minors meant offshore processing was unworkable.
"The fact that it is reviewable doesn't mean it would be problematic," the Opposition Leader said.
University of NSW law professor George Williams said the court had created a special category for unaccompanied children, effectively enshrining a two-tiered system.
"If you're putting together an offshore system that deals with all asylum-seekers, including unaccompanied minors, it's now very difficult to see how that could be done," he said.
'When you put all these legal arrangements together, I don't think Nauru is a viable option on the terms people are seeking, such as the transfer of children," Professor Williams said. (theaustralian.com.au)

Julia Gillard lays down rules for Tony Abbott's asylum cooperation

UPDATE 1.30pm: TONY Abbott must agree to broad discussions on resurrecting offshore processing of asylum seekers if he is to be taken seriously, Julia Gillard says.
The Opposition Leader says the Coalition would “help” the government with its immigration woes by supporting amendments to the Migration Act, which would allow asylum seekers’ refugee claims to be processed in countries such as Nauru, Papua New Guinea or Malaysia.
But the Prime Minister said this offer could not be contemplated unless Mr Abbott can “come to grips” with legal advice showing all offshore options are currently off limits.
Opposition Leader Tony Abbott has offered bipartisan support for legal changes that would resurrect the Nauru and Manus Island centres to process refugees offshore.
Mr Abbott said the Government currently "has no border protection policy whatsoever".
But he said he would not stand in the way of any legislative changes that put Nauru as a lawful location for offshore processing beyond doubt.
Ms Gillard said she wanted Mr Abbott to clarify how bi-partisanship on the controversial issue could proceed.
"I do clearly want Mr Abbott to clarify whether he is talking about a sincere desire to work with government on offshore processing broadly, or whether he’s talking about his narrow plan,” Ms Gillard said.
Ms Gillard said if the government decided to proceed with offshore policy options, migration laws would need to change.
"We do need legislation to put, beyond doubt, offshore processing arrangements,” she said.
"In order for unaccompanied minors to be sent to a location outside of Australia you would need legislative change. Without that legislative change the risk you would run is that you would send a signal to people smugglers that you would fill boats with children and no-one wants to see that.''
If the government decided to amend legislation then it would not change Australia's obligations on human rights, she said.
"We won't do things that are in breach of the refugee convention,'' she said.
Greens Leader Senator Bob Brown said working with Mr Abbott would be giving in to the "extreme right''.
"(Ms Gillard) shouldn't cave in to the Coalition, she should not cave in to the extreme right,'' Senator Brown said.
He said asylum seekers should be processed in Australia "humanely, gently, quickly'', and those not found to be genuine refugees would be sent home.
"The Greens are offering an option to the Prime Minister that is popular, it's legal, it saves taxpayers' money and it's humane.''
Asylum lawyers threaten new legal challenge
As the Government moves to solve its asylum dilemma, lawyers for the asylum seekers say any move to process asylum seekers on Nauru could also be challenged, the lawyer who led the High Court appeal that scuttled the Malaysian people swap deal says.
The lawyer who led the appeal that ended the Malaysian deal said he may challenge any Nauru processing.
Refugee lawyer David Manne said other legal challenges could be mounted if the law was changed.
The Federal Government has not yet announced how it will proceed after last week's High Court ruling.
More than 330 asylum seekers have been in limbo since the Court scuttled the government's deal to send 800 boat people to Malaysia.
But Mr Manne, who brought the action in the High Court, said the decision presents an opportunity for Australia to play by international law.
"The whole body politic should seize this opportunity and this crisis to get on with the job of playing by the rules we signed up to under the refugees' convention," he said.
"That means processing the protection claims of people here and use the ruling as an opportunity to promote proper treatment of refugees throughout the region, backed by law, in line with the benchmarks set out by the High Court."
The Melbourne lawyer told ABC Radio the decision had put Australia at the crossroads.
"Instead of searching around the region for others to do our job for us... why don't we use this as an opportunity to actually promote proper protections for refugees throughout the region," Mr Manne said.
"If there's an arguable legal challenge there, we'll certainly bring it.
"Given this ruling, it could well be unlawful to expel people elsewhere."
Asylum seekers will be processed on Christmas Island
Immigration Minister Chris Bowen today confirmed asylum seekers seekers who were to have been sent to Malaysia would now be processed on Christmas Island.
"Every processing takes time as their claims are assessed, but their processing will commence," he told ABC Radio.
If they were found to be genuine refugees, they would be settled in Australia, he said.
The government is considering all its options regarding asylum seekers, including the possibility of changing the Migration Act to allow offshore processing in Nauru and Papua New Guinea, Mr Bowen said.
Options on the table for Cabinet
Cabinet ministers will meet today to start discussing policy options on asylum seekers after Mr Bowen released top-level legal advice that all offshore processing was in doubt.
All options are on the table.
Mr Bowen said offshore processing was "not a silver bullet" to stopping boat arrivals.
"I think that Nauru and PNG when they were in the (Howard government's) Pacific Solution were ... a game of bluff," he said.
"I think there were a range of factors which led to the slowing of the boats ... the fall of the Taliban in Afghanistan, the peace accord in Sri Lanka.
"The ultimate deterrent is to say if you get on a boat and come to Australia you'll be returned."
Solicitor-General Stephen Gageler's advice says he did not have "reasonable confidence" that asylum seekers could be sent to Nauru or Papua New Guinea.
Mr Bowen said the advice also ruled out deporting solo child asylum seekers.
"What is very clear from the High Court judgment is you could not send unaccompanied minors in any workable way to Nauru, or anywhere else," he said.
He said Parliament could change the Migration Act to deal with the predicament.
But the Greens and members of Labor's Left have warned against taking that path, leaving the Government facing potential in-fighting or being forced to deal with Mr Abbott.
As the Greens hold the balance of power in the Senate, Labor would need Coalition support to change laws.
Mr Abbott was adamant Nauru was an option, but said if the Government was worried he would "work constructively with them to correct the (Migration) Act.
"We don't want to get in the way of a government which is fair-dinkum about securing our borders," he said.
The policy dilemma will put further pressure on Prime Minister Julia Gillard's leadership as party tensions bubble to the surface.
Ms Gillard insists she is "not going anywhere" amid speculation of an eventual change of leader - potentially even back to her predecessor, Foreign Affairs Minister Kevin Rudd. (heraldsun.com.au)

Implications for unaccompanied minors


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