This case note provides an overview of the key facts and findings of the High Court in Plaintiff M68/2015 v. Minister for Immigration and Border Protection & Ors  HCA 1, and sets out some of the key developments following the case. The plaintiff, an asylum seeker from Bangladesh, had been detained in Nauru at one of Australia’s two regional processing centres before being brought to Australia for medical treatment in 2014. She brought this case against the Australian Minister for Immigration and Border Protection, the Commonwealth of Australia and Transfield Services (Australia) Pty Ltd in an effort to prevent her return to Nauru. The main question in the case was whether the Australian government had the power, either in the form of a statutory or non-statutory executive power, to contract for and control the detention of asylum seekers in the offshore detention centre in Nauru. The majority of the court (French CJ, Kiefel, Nettle, Bell, Gageler and Keane JJ) held – in four separate judgments – that the government did have the necessary legal authority to be involved in the detention of asylum seekers in Nauru, although they were divided about whether the Australian government was actually in control of this detention and the basis on which it was lawful. Gordon J was in dissent, finding that the government had significant control over the detention of the plaintiff and had acted beyond its power in doing so.
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In Focus: European Approaches to Irregular Migration
This In Focus brief was previously published under the title 'European approaches to migration in the Mediterranean'.
‘Migration is about people – behind each face arriving at our borders, there is an individual: a businessperson travelling to work, a student coming to study, a victim of people-traffickers, a parent trying to get their children to safety. When presenting a comprehensive European Agenda on Migration we have to think about all dimensions of migration – this is not about quick fixes; this is about creating a more secure, prosperous and attractive European Union.’
- Dimitris Avramopoulos, European Migration, Home Affairs and Citizenship Commissioner
In 2015 more than 1 million people entered Europe by various routes over land and sea, most of whom were fleeing conflict and persecution. Within the first few months of 2016 alone a futher 160,000 arrived by sea, with estimates that by March 2016 Greece was receiving 2,000-3,000 new arrivals every day, many of them Syrian refugees. The mass refugee influx into Europe has been described by the UNHCR as "the biggest humanitarian emergency of our era" and a "largely self-induced humanitarian crisis". It has placed enormous pressure on countries in the region: not just Europe, but also its neighbours such as Turkey, Lebanon and Jordan, who are also hosting the bulk of the refugees displaced as a result of the war in Syria.
Europe has been debating the question of how to manage the flow of asylum seekers and migrants across its borders for decades, with increasing urgency since January 2015. This In Focus brief provides an overview of the key proposals for European law and policy to manage the flow of asylum seekers and migrants into the region since the onset of this 'crisis'. Before reading it, we recommend reviewing our background information about the European system for managing migration, which introduces the key institutions and legal frameworks, and explains how decisions are made in the EU.
Preventing irregular migration into Europe
Managing the processing and movement of people within Europe's borders
Saving lives at sea
In the context of addressing irregular migration in the Mediterranean, the term ‘trafficking’ is sometimes used to refer to what is in fact the related but distinct concept of ‘smuggling’. This brief has taken care to use the use the correct terms as much as possible. The importance of distinguishing between these two concepts has been highlighted by the UNHCR.