The new home affairs minister’s decision to refuse a convicted people smuggler a protection visa has prompted a high court challenge in a test case for whether Australia’s policy of deterrence is “punitive”.
The plaintiff is an Iranian Christian man to whom Australia owes protection obligations due to his fear of religious persecution but both Peter Dutton and Clare O’Neil denied him a visa on the grounds that granting one would be against the national interest.
The man’s lawyers have applied to the high court for him to be released from detention and claim that O’Neil’s decision is unconstitutional because maintaining Australia’s borders through general deterrence of people smuggling is a “punitive” purpose.
On Monday the high court indicated it would hear the case, despite lawyers for the commonwealth asking it to be sent to the federal court. O’Neil denies acting for a “punitive” purpose.
According to court documents lodged in July, seen by Guardian Australia, the man arrived by boat without a visa in December 2013. He was charged and pleaded guilty to aggravated people smuggling, and was sentenced to eight years in prison (four without parole) in October 2017.
The New South Wales district court judge found the man was motivated by desperation to be reunited with his family, who had arrived in Australia in 2012 and received protection visas, not by a financial motive, and was unlikely to reoffend.
He applied for a safe haven enterprise visa in February 2017 but Dutton rejected his application, leading to long-running litigation including a full federal court order in November 2021 for the decision to be remade.
On 27 June O’Neil, Anthony Albanese’s home affairs minister, rejected the application, finding “the importance of protecting and safeguarding Australia’s territorial and border integrity” meant it was not in the national interest. All other criteria for the visa were satisfied.
The plaintiff claims that O’Neil accepted Australia had an obligation to try to resettle him in a third country but his prospects were “poor” – likely resulting in his indefinite detention.
The man’s lawyers argue that O’Neil and Dutton’s decisions “in substance are the same” – that granting him a visa would “send the wrong signal” to people who might engage in people smuggling and “erode confidence” in the protection visa system. They accused O’Neil of taking account of the “considerable media coverage” of his conviction.
O’Neil rejected that as “not accurate” and said media coverage had been noted solely in the context of concluding it was “unrealistic” to think the granting of a visa could not become publicly known.
The minister’s decision accepted that Australia could “face criticism from other nations … which may negatively affect Australia’s reputation” if the man’s prolonged detention were found to constitute “arbitrary detention” by a domestic or international human rights body.
The plaintiff argues that although the Migration Act allows refusals on national security grounds, this “cannot encompass … acting for a punitive purpose”.
In June the high court struck down the home affairs minister’s power to strip dual nationals of Australian citizenship for engaging in suspected terrorist activities, on the basis the law amounted to judging and punishing criminal guilt.
In her response filed on 4 August, O’Neil rejected the characterisation of her reasons as “punitive” and said the man was not entitled to be released and granted a visa by the court.
Neither of the aims of “protecting and safeguarding Australia’s territorial and border integrity” and “maintaining confidence … in the protection visa program” were illegitimate, she submitted.
“The minister did not indicate that the purpose of the decision was general deterrence. Rather, the decision reflects the minister’s assessment of what is in the national interest.”
O’Neil argued that ensuring people smugglers “do not achieve … a protection visa grant” removes “incentive”, which was “different to deterrence”.
On Monday Justice Patrick Keane listed the case for a hearing on 5 September on a preliminary point seeking further details about O’Neil’s decision.
