The Australian Government has made no secret of its mission prevent the arrival of thousands of ‘unauthorised’ immigrants on its shores, ostensibly to thwart people smuggling (see the discussion here, here, and here). But despite its endeavours to develop ever more drastic measures to achieve this objective, the Commonwealth Government has always attempted to maintain a veneer of legality. Indeed, the Australian High Court has endorsed the Government’s claims to the legality of many of its legislative schemes, despite their seeming harshness – including endorsing the possibility of indefinite immigration detention in Al-Kateb v Godwin and offshore processing in Plaintiff M61/2010E v Commonwealth. However, it has become clear that the legislative agenda of the Australian Government with respect to asylum seekers is not all that we should be worried about when it comes to the appropriate treatment of refugees.

On 8 November 2016 The Guardian published a story on an African man deported from immigration transit accommodation in Melbourne. The man – who had apparently been granted refugee status – was awoken at around 1am on 4 November 2016 by Australian officials who handcuffed him and directed him to follow them. When the man asked to contact his lawyer, the officials merely called the law office switchboard, which predictably gave no response. The man was then removed to Nauru. One could be forgiven for doubting the veracity of this account, which is yet to be firmly established. But the events described are part of a broader trend in Australia – one noticed by the courts. Disturbingly, there have been many recorded instances of applicants for refugee status being spirited away while their claims were pending before Australian courts.

Most notably, in 2014 a Tamil citizen of Sri Lanka was ‘involuntarily removed’ from Australia while his application for an extension of time to file an appeal was pending before the Federal Court. The applicant wanted to appeal a decision of the Federal Circuit Court upholding a determination by the Department for Immigration and Border Protection that he was not a person to whom Australia owed protection obligations under the 1951 Refugee Convention. However, he was deported before his application could be heard.

Despite the applicant’s deportation, the application came before the Full Court of the Federal Court in SZSPI v Minister for Immigration and Border Protection. The Court noted at [17] of its judgment that this was not the first case in which a claimant had been removed from Australia while they had litigation on foot – the Court lists several reported and unreported decisions on this point between 1971 and 2014. In particular, the Court referred to Tchoylak v Minister for Immigration and Multicultural Affairs, in which it was held by the Full Federal Court (at [53]) that ‘[the Minister] must take responsibility for ensuring that no one is removed from this country while there are proceedings pending in this Court challenging the validity of that removal’.

In addition, the Court in SZSPI referred (at [34]) to affidavit material which indicated that, even in the comparatively short period between 1 July 2013 and 30 June 2014, there had been five persons removed from Australia while they remained involved in active litigation. Despite making these observations, the Court dismissed the matter as the applicant – who was unrepresented – was no longer in Australia and could not appear.

The deportation of claimants to refugee status while their applications remain pending is very troubling indeed. First, it is a clear violation of Australia’s obligations under the Refugee Convention. Article 32 prohibits the expulsion of refugees – except on the grounds of national security or public order, and then only after the refugee has been afforded the opportunity to appeal the decision for their removal. Where the refugee is returned to the country they have fled, this deportation procedure also potentially breaches the article 33 prohibition on non-refoulment.

Second, the deportation of a claimant to refugee status in such circumstances has the potential to breach the separation of powers required by the Australian Constitution. By deporting claimants before their cases have been determined, members of the executive are able to frustrate the discharge of judicial power. Deportation of the claimant deprives the court of a controversy of which it is seized – as, in cases like SZSPI where the claimant is unrepresented, the deportation means that there is no one to make submissions on behalf of the claimant – settling it in favour of the Government. This means that members of the executive cannot be held accountable for the breaches of international law outlined above – their conduct is never scrutinised by the courts.

The deportation of claimants to refugee status is clearly unacceptable. There can be no justification for not allowing refugees to pursue the avenues of legal recourse that the Australian Government has provided them with. It is a clear breach of international law and should not be permitted to reoccur.