I lied.

Okay. So I am breaking my promise. No scandal nor wit here. But there is some acrimony.

Work Choices was so exciting, and so all-consuming in its constitutional interpretation expansionism (yes, all 411 pages!) that I almost let this and this slip under the radar. The whole cases are here and here .

Of course, I don’t get paid to read an immigration case, but I’ve done it anyway. For your elucidation alone. That’s how much I care.

Australia’s highest court has decided that Australia’s greatest international humiliation – our continuing inhumane treatment of asylum seekers – can continue unabated.

Each of the asylum seekers in the two cases were Shi’a Muslims of Hazara ethnicity living in Afghanistan. Each came to Australia seeking refugee protection visas and was granted Temporary Protection Visas. When they applied for permanent protection visas at the end of their temporary visa, they were rejected because, according to the Refugee Review Tribunal, they no longer had a “well founded fear” of persecution in their country of nationality. The High Court by a majority of four to one*, said that the Tribunal was correct. The UN High Commissioner for Refugees asked to intervene as amicus curiae (a friend of the court, helpful and knowledgeable). The UNHCR was permitted to provide written submissions, but not make oral argument.

* no prizes for guessing the dissentient: Kirby J.

The concept that refugee status can come and go is almost laughable to me.

I am not usually one to disparage our justice system. There are often constraints on doing justice, because of how legislation is framed. There is precedent to contend with. I am actually very good at explaining the legal basis for decisions I disagree with. I understand legal reasoning. But that does not change my reaction. I think the conclusions in both cases are very sad for Australia. I shake my head in sorrow, my throat catches and tears come to my eyes. This is all I can do. I am powerless.

This decision requires an asylum seeker to establish, years on, why they cannot return safely 'home'. Anecdotal evidence isn’t good enough. That an asylum seeker gets occasional letters from family still in the 'home' country, saying that an uncle or cousin or neighbour or someone else entirely was killed or has disappeared is not good enough. I don’t know what is.

A regime change is not enough to show that it safe to return ‘home’.

An individual who has been persecuted, marginalised, mistreated by government has absolutely no reason to trust government. Of whatever kind. Whether their birth country, or an attempted adopted one. It will take a lot for a regime change to manifest its trustworthiness to people who have no reason to trust.

It is very easy, when you are comfortable and secure, to be unable to see how someone else is uncomfortable and insecure. It is very easy to think that that person’s perception is flawed. To blame the individual’s subjective experience, rather than objective reality. But you could be wrong. What is objective reality anyway? What would it take for you to be in their shoes? Watch the movie Three Dollars. It ain’t perfect (although it does have David Wenham in it). I found most striking how well the movie elicited the fine line between middle class comforts, and jolting poverty.

I am an Australian citizen. I am legally trained. I am comfortable navigating within a variety of social and economic circles in Australia. I am articulate. I know my rights and entitlements, and how to assert them. My annual salary probably places me within the upper middle class category. I have loving family, a home and food whenever I want it. I have fulfilling work and enjoyable (if somewhat insufficient) leisure time. I have never been imprisoned. I have never not had enough to eat. I have never feared for my life – although my parents have feared for theirs, and mine by proxy. I was a mere infant when I left Viet Nam. But I returned with a little trepidation. I made light of it in a blog post, but it was real.

I read a profile recently of a Vietnamese language interpreter, residing in Brisbane, in the illustrious Courier Mail’s “Q Weekend” magazine. It was lying around the lunchroom and I was munching on a sandwich. I still have not worked out how to read a novel while eating a sandwich. Anyway, this interpreter was asked whether she had returned for a visit to Viet Nam. She said she had not. When asked why, she said that she did not trust the government, still. Madam Interpreter left Viet Nam in 1976. She started out working as a kitchen hand but, having a knack with languages, learnt English sufficiently proficiently to help her fellow Vietnamese cope with the mainstream language in their new society. Perhaps, 30 years on, after doi moi, Madam Interpreter does not have a well founded fear of persecution. But the fact of that fear says something: the longevity of an individual’s distrust of government. Madam Interpreter still considers herself a refugee.

Regime change is not enough. Under the International Convention on Refugees, regime change must be fundamental, stable and durable. Only time can answer those questions, and after a sufficient period of time has elapsed, sometimes that person who was a refugee becomes someone else such that returning to their birth country might no longer be returning home. Even if it’s safe.

Caveat (I can’t help it, I’m a lawyer):

I do not profess to have understood the complexities of the High Court decisions because I have only skimmed them. This is a blog post. It’s my opinion because I’ve been inspired to write, by something I’ve read. It’s all a lot more complex than this.