Attorney-General George Brandis has been labelled "legally unreasonable" for failing to help overturn the conviction of an Indonesian boy wrongly locked up for two years in an adult jail for people smuggling.
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That is despite evidence that Ali Yasmin had been wrongfully convicted after details of youth – including his birth certificate and a confirmation letter from the Indonesian National Police – had been ignored and not provided during his court case.
Lawyers for Yasmin, also known as Ali Jasmin, have launched a new bid to force Mr Brandis to send his case to the Court of Appeal of Western Australia.
But Mr Brandis argues he has no legal duty to consider Yasmin's request.
A Federal Court judgment in February found in the Attorney-General's favour, but Yasmin has appealed to the full bench to have the matter sent to a hearing.
Appeal papers, filed by Yasmin's lawyers, Canberra firm Ken Cush and Associates, said an application raising injustice could not be left to the "whim" of the Attorney-General.
"For the Commonwealth Attorney-General not to consider an application which raises detailed matters warranting appellate intervention, and which is supported by the Commonwealth DPP, is legally unreasonable," the papers said.
Yasmin came to Australia as a crew member aboard a boat carrying 55 Afghan nationals in December 2009.
The Immigration Department believed he was about 14, but the Australian Federal Police instead relied on a discredited wrist X-ray technique to estimate his age as 19.
Government policy at the time dictated that underage boat crew should returned to Indonesia and not prosecuted.
The policy included those whose age could not be determined.
But Yasmin was tried as an adult and locked up in a maximum security prison on charges of people smuggling – despite the authorities possessing evidence that he was a child.
Yasmin was granted early release and returned home in 2012.
It is understood that Yasmin's legal team intends to ask the WA court to quash his conviction as he had been a child at the time.
He could then sue for wrongful imprisonment.
But first Mr Brandis must refer the case to the WA courts.
In February, Justice Jayne Jagot found the Commonwealth Attorney-General had no legal duty to consider Yasmin's request and dismissed the case with costs.
"This is not a case where there is any suggestion that the Attorney-General has decided not to deal with the petition," Justice Jagot wrote in her decision.
"Given the context, and the language of the [law], I would not construe it as imposing any duty on the Attorney-General to decide whether or not to refer a petition to the Court of Appeal."
Yasmin's lawyers appealed that decision, arguing Justice Jagot erred in her interpretation of the Western Australian Sentencing Act.
Yasmin's barrister, Perry Herzfeld, accepted the act contained no express words to indicate a duty to consider the application.
But he argued that nothing in the wording of the law implied Mr Brandis had no duty either.
"It follows that the only lawful way in which the Commonwealth Attorney-General could exercise the discretion whether or not to consider and determine the appellant's application was to consider and determine it. He therefore has an enforceable duty to do so."
Lawyers for the Attorney-General argued Jasmin's legal team could not establish an appealable error and asked the full bench to dismiss the appeal with costs.
The judges reserved their decision.
