IMMIGRATION Minister Chris Bowen has told a court he has the power to remove asylum seekers from Australia even if they have been found to be genuine refugees.
Mr Bowen's lawyers appeared at Federal Court on Friday to challenge an injunction on an Afghan asylum seeker's deportation, which he won in September. The Hazara man, from Ghazni in Afghanistan, arrived in Australia two years ago, claiming he risked being killed if he returned because of his ethnicity, religion and imputed political opinion.
He is one of three failed asylum seekers Mr Bowen has been prevented from deporting because of pending Federal Court cases. Mr Bowen (below) has a number of personal powers under the Migration Act to allow an unlawful citizen to apply for a protection visa if he thinks it is in the public interest to do so. He decided not to exercise them here.
His lawyer, Dr Stephen Donaghue, SC, submitted that Mr Bowen had no duty to exercise the powers and that an offshore-entry person had ''no right'' to compel him to do so. Dr Donaghue said the minister's decision was entirely discretionary and could not be reviewed by the court or Parliament.
Federal Court Justice Geoffrey Flick said: ''You say … he can decide whether to exercise [the power] irrespective of Australia's international obligations?
''For example in a country where torture is known to be rampant and the minister knows all about this and can say, 'I don't care, I'm not going to exercise [this] power,' and … there's no need to explain it to Parliament?''
''Yes,'' Dr Donaghue said.
''So the [minister] has been given a power which cannot be examined by this court and without having to account to Parliament?'' Justice Flick said.
''Yes,'' Dr Donaghue said.
The asylum seeker's protection claims were rejected by an independent merits review and an international treaty obligation assessment last year, which his lawyers said were made without procedural fairness.
Dr Donaghue said Mr Bowen's decision to return the man to Afghanistan was made ''irrespective of whether or not any legal or factual error was made by the [earlier refugee assessments]''.
Justice Bruce Lander asked Dr Donaghue ''what is the point?'' of such assessments and judicial reviews of those assessments if the minister was not obliged to consider them.
''The minister may choose to rely on them,'' he replied.
''Just in case he does?'' Justice Lander said.
''There may be an expectation he will take it into account but it is not a legal duty,'' Dr Donaghue said.
The asylum seeker's lawyer, Debbie Mortimer, SC, said refugee assessments were designed to help the minister decide whether to remove an asylum seeker.
She said the Hazara man should remain in Australia until his status could be decided lawfully.
The Federal Court reserved its decision.