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Backlash over missing asylum seeker boat

"We are breaching our central obligation under the refugee convention" says lawyer Julian Burnside, after two boatloads of asylum seekers were allegedly screened and handed over to the Sri Lankan navy by Australia.

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A bold move by the Abbott government to circumvent a decision of the High Court and the will of the Senate appears certain to trigger another High Court challenge.

Immigration Minister Scott Morrison has responded to a court decision two weeks ago on visa caps by declaring he will personally apply a "national interest" test to every application for permanent protection by those who arrive without a visa.

The minister has also signalled he will reject all such cases by outlining several reasons why the national interest test will deny the grant of permanent visas and no reasons that would support the grant of a permanent visa.

Immigration Minister Scott Morrison.

Immigration Minister Scott Morrison says he will apply a 'national interest' test to each application for a permanent protection visa. Photo: Andrew Meares

He has also announced that his decisions to deny visas in "the national interest" cannot be reviewed by the Refugee Review Tribunal.

The reasons for refusing a visa include not "rewarding" those who arrive "illegally" with the same permanent visa outcomes that are available to those who "who abide by Australia's visa requirements".

Other grounds for denying a permanent visa in the national interest include that such action would "provide a product for people smugglers to market" or erode public confidence in Australia's migration program.

Mr Morrison insists that the protection needs of those who arrive without a visa can be met by granting them a temporary visa. Several hundred boat arrivals have been recognised as refugees but have not yet been granted permanent visas.

Thousands of cases of those in detention or in the community on bridging visas are pending.

The Senate has repeatedly rejected Mr Morrison's attempts to reintroduce temporary visas and the High Court rejected his fall-back attempt to deny permanent visas by imposing a cap on the number that can be granted.

Mr Morrison announced his latest device in a letter to lawyers who acted for the teenage stowaway who successfully challenged the cap.

In the letter, the minister signals that he does not think a permanent visa would be in the national interest in the teenager's case and gives the lawyers 28 days to state why a permanent visa should be granted.

But the lawyers have gone back to the court, seeking a positive response from the government to the court's decision within 14 days. A challenge to the new "national interest" criteria is expected if this move fails.

The lawyer who led the refugee's legal team, David Manne, described the move as "an extraordinary and most serious defiance of Parliament's will and the rule of law".

"In the wake of temporary protection visas being disallowed by Parliament and there being no discretion to refuse a visa under law, they have sought to use yet another device to defy the clear will of Parliament and the rule of law in this country," Mr Manne told Fairfax Media.

"This is because Parliament has repeatedly rejected temporary protection visas and the government appears to be just refusing to accept the authority of Parliament and the law."

Mr Manne said no issues to do with national interest were raised by the government in the recent case.

Greens senator Sarah Hanson-Young slammed the move, saying: "It seems as though Scott Morrison believes he is above both the Parliament and the law. This is a desperate attempt to avoid treating refugees properly and within the law."

In a statement to those seeking refugee status, Mr Morrison has said: "If you have been found to engage Australia's protection obligations and have met health, security and character checks, but the minister has found that it is not in the national interest to grant you a permanent protection visa, you are not subject to removal from Australia.

"The department will contact you about a temporary stay in Australia. If you live in the community with a valid bridging visa, you must receive an offer for a temporary stay and you must have accepted that offer, before a visa can be granted to you.

"If you are in detention, including community detention, the minister may decide to grant you a visa and no offer or acceptance is required."