The High Court has ruled that the denial of a protection visa to a Sri Lankan man because Australia's spy agency declared him a security threat was unlawful.
In a test case which will impact about 50 indefinitely detained Sri Lankan refugees, a majority of the High Court said it was invalid to refuse to grant a protection visa to a refugee if the Australian Security Intelligence Organisation determines he or she is a risk to security.
The man was found to be a genuine refugee with a well-founded dear of persecution, but he was refused a visa after ASIO assessed that he was a risk to security.
The majority of the court ruled the refugee was not denied procedural fairness because he was given the opportunity to address ASIO's concerns, and a fresh security assessment was conducted in 2012.
It also ruled that his continued detention was valid for the purpose of determining his application for a protection visa.
But the High Court ruled that it was inconsistent with the Migration Act for the public interest criteria of the ASIO security test to be used to refuse a refugee a visa.
“Because the prescription of public interest criterion 4002 as a criterion for the grant of a protection visa was invalid, a majority of the Court held that the decision to refuse the plaintiff a protection visa on the basis of this criterion had not been made according to law,” the judgment summary said.
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