December 17, 2017

Manus asylum seekers allowed to further claims against state

The Manus Island asylum seekers are allowed to push for claims against the State in court for alleged beaches of their constitutional rights following a 2016 Supreme Court decision that declared their detention at the now decommissioned Regional Processing Centre as unconstitutional.

This followed a unanimous full bench Supreme Court decision last Friday that cleared the matter to progress to trial after the court refused an attempt by the State to have the matter dismissed for claims that the refugees failed to give notice of their intention to make a claim against the State within the six months requirement under section 5 of the Claims By and Against the State Act 1996.

The Supreme Court comprising Justice Nicholas Kirriwom, Justice Derek Hartshorn, and Justice Colin Makail, who relied on a report by Justice Terence Higgins, accepted the refugees’ submission that the six months period started from May 12 last year when the gates of the centre was opened and the asylum seekers were free to move around subject to respecting the rules of the Lombrum Naval base where the centre was thus adding that the notice given on November 4, 2016, was within time.

The State however argued that the refugees failed to give notice on time because the time requirement ran from April 26, 2016, when the Supreme Court declared the detention at the centre unconstitutional or on the following the day when the asylum seekers were informed of the decision .

“It would follow that the application to enforce constitutional rights post Supreme Court decision is competent and should be allowed to progress to trial,” the Judgement read, adding that this also applied to alleged breaches prior to the Supreme Court decision because the alleged breaches prior to that decision and after the applicants were notified of that decision continued until May 12, 2016.

The refugees are seeking enforcement of their constitutional rights. They alleged breaches of full protection of the law and derivation of liberty. They also sought compensation and damages.

In a related case , the application by refugee Behrouz Boochani that went before another full Supreme Court bench last Friday in relation to his urgent application that was refused by Chief Justice Sir Salamo Injia early last month was withdrawn and referred to directions hearing on February 5 next year .

SOURCE: POST COURIER/PACNEWS
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