Have you ever noticed that refugee cases are usually heard in the High Court of Australia?
Have you ever wondered why that is?
Under the Constitution the Commonwealth Parliament has the right to make laws in relation to immigration and emigration – that is arriving in Australia or leaving Australia. A person applies to be a citizen of Australia, not a citizen of New South Wales, and indeed the state does not have the right to make citizens unless the Commonwealth was to grant it that right, which is highly unlikely.
Advocates for refugees usually commence proceedings in the High Court because they are appealing a decision of the Commonwealth in relation to denying a refugee’s application, that is denying an application made by a person to immigrate to Australia. The High Court of Australia has originating jurisdiction in any case in which the Commonwealth is a party.
The High Court can ‘remit’ matters to another court, which means they can send matters to the Federal Court and ask the Federal Court to exercise their jurisdiction.
The High Court also has originating jurisdiction in relation to any matter arising ‘under any treaty’, and advocates for refugees often appeal to treaties signed by the government to enforce rights of a refugee.