The Papua New Guinea lawyer representing Manus Island refugees says the Supreme Court was wong to dismiss their case.
After ruling the refugees detention was unlawful in 2016, the court dismissed their case yesterday, ruling their claim for compensation should be considered by the National Court.
But the lawyer, Ben Lomai, told Ben Robinson Drawbridge the court should have maintained their application for resettlement.
Photo: supplied
Transcript
BEN LOMAI: The decision in a nutshell was only in relation to Section 57 of the constitution which deals with the enforcement of human rights and Order Six of the Supreme Court rules which basically regulate or govern the way the application is filed. Now what the Supreme Court did was - they were of the view that the enforcement of human rights does not include a claim for compensation. A claim for compensation must go back to the National Court to deal with. Only enforcement of human rights can be pursued under Order Six of the Supreme court rules. That was the only reason why they dismissed the case. They dismissed the case on the basis of that alone.
BEN ROBINSON DRAWBRIDGE: So you will now need to file proceedings in the National Court, is that your intention?
BL: That's the other way to look at it. We had two specific orders that we were seeking. One is for resettlement. We want specific orders for resettlement. That bit is an enforcement of human rights. If they are of the view that compensation is not enforcement of human rights, resettlement is enforcement of human rights. They should have kept that bit alive. But you see they made an error by having to dismiss that claim and that includes the issue of resettlement, which is basically an enforcement of human rights, if we are going to agree with their view. And so only the damages claim should have gone to the National Court. But we don't agree with that view. They made an error when they dismissed the entire case. If that's what the decisions are they shouldn't have done it. Because they should have maintained the proceedings and said, 'OK, you go back with the compensation to the National Court and then we'll maintain your other issue as to the resettlement in the Supreme Court. But they haven't done that, they just dismissed the entire proceedings.
BRD: You have no avenue to appeal this ruling, do you?
BL: I can file an application, I have 21 days but I need to seek instructions. I have 21 days to say 'you made an error because we have a case for resettlement which is basically an enforcement of human rights but you proceeded to dismiss the case'. That's an error on the part of the judges. And at the same time we have an option to go back to the National Court but I need to seek instructions. But these kinds of matters take a long time and I'm looking at time because it's now five years and a lot of our guys are already traumatised. So we will weigh all these things and see how we go.
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