The collective weeping, wailing, and gnashing of teeth as a response to the High Court's judgment in S156/2013 on the Migration Act provisions, as they relate to the Manus Island detention centre, may well be premature.
The last question put to the Court in the Case Stated was: "Are these proceedings otherwise able to be remitted for determination in the Federal Court of Australia or the Federal Circuit Court of Australia?" The Court answered: "The proceedings are otherwise able to be remitted for determination in the Federal Circuit Court of Australia."
The Commonwealth's purpose in enacting legislation to facilitate the extraordinary rendition of asylum seekers to Manus Island and Nauru was to place them beyond the reach of the Australian legal system. The Court's holding, at least for the Iranian asylum seeker in the present case, that he may take his case to the Federal Circuit Court for review, seems to indicate that in effecting that purpose the Commonwealth has failed.
It may be possible for all of those so removed to Papua New Guinea and Nauru to have their cases reviewed by the Federal Circuit Court. They would have to commence proceedings in the High Court from which, if they demonstrated an arguable case, they would be remitted by the High Court to the Federal Circuit Court. From that court, there would be a right of appeal to the Federal Court, and to the High Court. If this proves to be the case, much of the advantage to the Commonwealth of off-shore processing would be lost. All decisions as to the processing of unauthorised maritime arrivals, to use the Commonwealth's terminology would be subject to such scrutiny by way of judicial review.
This is not intended as legal advice, and anyone proposing to take that course should consult their own legal practitioner.
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