A refugee lawyer is awaiting the Government's response to an immigration challenge begun before the asylum seeker deal with Malaysia was finalised.
David Manne and his legal team appeared in the High Court on 3 August to argue the case of a woman, and her four-year-old son, seeking to be reunited with her husband, who has already been granted refugee status in Australia.
The boy and his mother arrived on Christmas Island in mid May and are part of a group of more than 500 asylum seekers who arrived after the Malaysian solution was announced, but before the deal was signed.
After an initial win for the group, whereby by the Government changed its original position to allow their asylum claims to be processed in Australia, Manne told Lawyers Weekly the ball was "squarely in the Immigration Minister's court" to process the mother and child "as a matter of formality".
"We're awaiting a response from the Government on outstanding issues with the case to see whether it will be necessary to press forward with a trial or not," said Manne, who is the executive director of the Refugee & Immigration Legal Centre.
"The question remains whether the Government will accept that the mother and child should be processed as a formality and be promptly recognised as refugees and granted protection visas, so they can reunite with the father and live together in safety."
While Immigration Minister Chris Bowen accepts that refugees have a right to family unity under Australian and international law, he has said there will be "no blanket exemptions" and that the Malaysian deal has "strong legal grounds".
Manne, who has been approached for advice by others in the group of 500, said that remote detention was presenting "very serious obstacles" to effective communication and the provision of advice.
"Our primary access to our clients has been by phone rather than in person. We do visit clients in remote detention sometimes but given the tyranny of distance there are resource-based limitations and restrictions on face-to-face contact," he said.
Manne led a successful High Court challenge last year which saw asylum seekers arriving by boat gain access to the judicial system. Last night (7 August) he won a High Court injunction to delay the transfer of the first asylum seekers to Malaysia under the new deal.
Representing 41 of the 55 asylum seekers who arrived by boat in Australia last week and who had been expected to leave for Malaysia at 11.30am tomorrow, Manne said the matter was one of "life or death" as his clients feared they were being expelled to a situation where they would lack protection and face a real risk of harm.