See what sense you can make of the High Court’s reasoning in the recent case of Plaintiff S297-2013 v Minister for Immigration: http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html#fnB35

In that case the plaintiff, a Pakistani national, arrived by boat in May 2012. The Migration Act (S.46A) said, in effect, that an ‘unauthorised maritime arrival’ (i.e. asylum-seeker arriving by boat) may not make a valid application for a protection visa (i.e. a refugee visa) unless the Minister personally decides that it is in the public interest (i.e. the Minister “lifts the bar”).

The Minister did lift the bar, and the Refugee Review Tribunal eventually found, in effect, that the plaintiff is a refugee and entitled to a protection visa. As usual, the Tribunal remitted the matter to the Immigration Department to grant the visa. However the Immigration Department refused the visa, on the ground that the applicant had not satisfied a condition of the Immigration Regulations (866.226) which required the Minister to find that the grant of the visa is in the “national interest”, because it is the policy of the government not to let any asylum-seeker who arrives by boat, get permanent residence in Australia.

So the Minister had found it is in the public interest to permit the plaintiff to make the application despite the fact that he had arrived by boat with no visa; but then after the RRT had found he is a refugee, the Minister found it is not in the national interest to grant the visa because the plaintiff arrived by boat. (Nothing turned on the distinction between ‘public’ and ‘national’ interest.)

The High Court held that the decision to refuse the visa was legally invalid, because the Parliament, in providing that the Minister may permit an application by an unauthorised maritime arrival, had “exhaustively” prescribed the visa conditions that follow from being an unauthorised maritime arrival.

But s.46A didn’t say it had exhaustively prescribed the visa conditions that follow from being an unauthorised maritime arrival.

What do you think? Was the High Court applying the law, or making up policy?

Yes, shenanigans that would not have occurred had one Kevin 07 not come to town.

Without a doubt one of the worst voting blunders ever by the Australian voting public because all was well, we had no debt, money in the bank and above all else, the country was beaming with confidence.

If only people would adopt the strategy of, 'if it ain't broken, don't fix it' our lives would be so much better today.

I am responding to the item on the recent High Court case concerning the Pakistani asylum seeker and the writer asks if sense can be made of the decision. The short answer is No.
This was a 4 to 3 decision in an area where lawyers classically divide respectively on an inarticulate major premise. In this case the premise lies in either a preference for government over the individual and more specifically here on a view as to the standing of international law in our domestic system. Both have regard to the current political climate.

As to International law, some judges don't like the idea that international
Law should have force here unless it is explicitly incorporated by way of statute and it does not matter that the incorporation departs from the international text. That is, the text as incorporated prevails over the treaty text regardless. That is how Mr Morrison justified his actions and asserted that he had not breached 'the law', internationall or otherwise. Pure deception in terms of Australia's international legal obligations. In short that is how the Court divided in this case. It was sophistry at its best!
Andrew Farran

Andrew Farran
"In short that is how the Court divided in this case."

No it didn't. The Court was unanimous:
http://www.austlii.edu.au/au/cases/cth/HCA/2015/3.html#fnB35

"As to International law, some judges don't like the idea that international
Law should have force here unless it is explicitly incorporated by way of statute and it does not matter that the incorporation departs from the international text. That is, the text as incorporated prevails over the treaty text regardless. That is how Mr Morrison justified his actions and asserted that he had not breached 'the law', internationall or otherwise. Pure deception in terms of Australia's international legal obligations. In short that is how the Court divided in this case. It was sophistry at its best!"

The text of the 1951 Refugees Convention does NOT require a signatory State to grant permanent residence to a refugee; nor does it prohibit a state from sending a refugee to a state where he is not in danger of refoulement, and does not have a well-founded fear of being persecuted for a Convention reason.

So isn't it really sophistry on your part, claiming that a refugee has a right to access permanent residence in a rich first-world country - with all the entitlements to social security that go with it - when there is fact and law no basis whatsoever in the Refugees Convention, or any other "international legal obligations" for your claim?

These are not refugees, they are illegal economic immigrants as they have passed through save havens to get here. End of story.

If one wishes to immigrate to our country, they must go through the appropriate channels and, I also suggest they should have to have something to offer.

We are now in trying times finically simply because our expenses out weigh our income, so any unplanned expenditure has to be seriously questioned as to fund anything over and above our own needs, simply means we have to take funding away from ouw own people, the majority of which either pay taxes, or at least have paid taxes throughout their working lives.

We must now, more so than ever before adopt the attitude of 'charity starts at home' otherwise we as a society will crumble.

Sorry. Just caught up with this. As I intended to make clear, I was commenting on the most recent of the High Court decisions in this area - the one where the Court divided 4 to 3. So the inferences or worse that some commentors took from my comments are way off. I have nothing to say about the earlier case which I noted at the time.
As for my position on asylum seekers and refugees generally it would be pretty much in line with the recent report of the Human Rights Commission.