Plaintiff M70/2011 v. Minister for Immigration and Citizenship; and Plaintiff M106 of 2011 v. Minister for Immigration and Citizenship

1. Is s 198A of the Migration Act the only legislative source of power for the Minister to take "persons seeking asylum" to another country for "determination of their refugee status"?

Per French CJ
[54] The plaintiffs' submissions should be accepted. The scheme of the 2001 Excision Act and the 2001 Excision Consequential Provisions Act is clear. An offshore entry person, claiming to be a refugee, and detained under s 189(3), cannot be taken from Australia other than pursuant to s 198A unless that person's claim for protection is assessed within Australia. Absent the possibility of removal to a declared country, the person cannot be removed from Australia before there has been an assessment of his or her claim to be a refugee. If the person is found to be a refugee, then removal under s 198(2) will necessarily have to accord with Australia's non-refoulement obligation. If the person is found not to be a refugee, then removal to his or her country of origin is open, or removal to some other country willing to accept the person.

[55] Absent any assessment of their claims for protection as refugees, the plaintiffs can only be taken to Malaysia pursuant to s 198A and only if there has been a valid declaration made in relation to Malaysia under s 198A(3).

Per Gummow, Hayne, Crennan and Bell JJ: 
[95]  When it is observed that s 198A is directed to taking persons to a country which provides the access and protections identified in s 198A(3), including “access, for persons seeking asylum, to effective procedures for assessing their need for protection”, it becomes evident that s 198 should not be construed as requiring or permitting the removal from Australia of those described in s 198A as “persons seeking asylum” before there has been what the same section calls a “determination of their refugee status”. Such persons can be taken to another country only in accordance with s 198A. The Act confers only one power to take that action: the power given by s 198A. Section 198A deals with a subset of those to whom it is said s 198 applies. The generality of the power apparently conferred by s 198 must be confined by reference to the restrictions set out in s 198A.

[96]  That this is the proper construction of the relevant provisions is reinforced by consideration of the legislative history of ss 198 and 198A. Both of these provisions of the Act came into what is substantially the form in which they now stand as a result of the enactment in 2001 of six Acts98 which affected the entry into, and remaining in, Australia by aliens. As is recorded in the Offshore Processing Case, those six Acts were all assented to, and for the most part came into operation, on the same day. As is also recorded in the Offshore Processing Case, two of those Acts, the Migration Amendment (Excision from Migration Zone) Act 2001 (Cth) and the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth), provided for the excision of certain Australian territory (including Christmas Island) from the migration zone and contemplated what became known in the Department as the “Pacific Strategy”: processes by which offshore entry persons would have their claims for protection determined in a country declared under s 198A but according to procedures specified by the Department. As was said in the Offshore Processing Case,101 “the changes to the Migration Act that were worked by inserting s 46A and, in consequence, inserting s 198A, are to be seen as reflecting a legislative intention to adhere to that understanding of Australia’s obligations under the Refugees Convention and the Refugees Protocol that informed other provisions made by the Act”.

[97]  Section 198(2) should not be read as supplying a power to remove the present plaintiffs from Australia. Reading s 198(2) as supplying that power would allow the Minister to remove a person who claims to be a person to whom Australia owes protection obligations, but whose claims have not been assessed, to any country willing to receive that person. To read s 198(2) in that way would give s 198A(1) no separate work to do. A construction of that kind should not be adopted.

[98]  Further, to read s 198(2) of the Act as providing a power to remove from Australia to any country that is willing to receive the person concerned any offshore entry person who claims to be a person to whom Australia owes protection obligations, but whose claims have not been assessed, would deny the legislative intention evident from the Act as a whole: that its provisions are intended to facilitate Australia’s compliance with the obligations undertaken in the Refugees Convention and the Refugees Protocol.

[99]  For these reasons, s 198A is the only legislative source of power for the Minister to take “persons seeking asylum” to another country for “determination of their refugee status”.

2. Was the power under s 198A of the Migration Act validly exercised by the Minister?

Per French CJ
[64] The use of the word "provides" was said to suggest not only the existence of laws which authorise or require protection to be afforded but also the existence of an effective judicial system capable of enforcing those laws. In so saying, the plaintiffs did not make any assertion that Malaysia does not have an effective judicial system. The point of difference between the plaintiffs and the defendants was that the defendants contended that the Minister could make a declaration in relation to a country which meets the criteria in s 198A(3) as a matter of fact, notwithstanding that it might lack particular laws ensuring that the relevant protection is provided.

[65] It is not necessary to delineate all of the matters comprehended by the term "protection" in s 198A(3) or the particulars of "relevant human rights standards" mentioned in s 198A(3)(a)(iv). The Minister conceded, by way of the written submissions made on his behalf, that if the proper construction of s 198A(3) meant that he was required to focus upon the laws in effect in Malaysia and not upon the "practical reality", then he would have erred in this case. In my opinion, the Minister was so required and did so err.

[66] The criteria for a declaration set out in s 198A(3)(a) are not limited to those things necessary to characterise the declared country as a safe third country. They are statutory criteria, albeit informed by the core obligation of non-refoulement which is a key protection assumed by Australia under the Refugee Convention. Attention must be directed to the statutory language. The questions the Minister must ask himself, about whether the relevant “access” and “protection” are provided and “human rights standards” are met, are questions which cannot be answered without reference to the domestic laws of the specified country, including its Constitution and statute laws, and the international legal obligations to which it has bound itself. The use of the terms “provides access … to effective procedures”, “protection” and “relevant human rights standards” are all indicative of enduring legal frameworks. Having regard to the Minister’s concession and what appears, in any event, from the submissions upon which the Minister acted and his affidavit, it is clear that he did not look to, and did not find, any basis for his declaration in Malaysia’s international obligations or relevant domestic laws. There is no indication that the apparent legal fragility of the exemption order under the Malaysian Immigration Act and the associated risks to transferees were drawn to his attention. Important elements of his decision were the non-binding Arrangement, conversations he had undertaken with his ministerial counterpart in Malaysia, and observations by DFAT about contemporary practices with respect to asylum seekers in that country.

[67]  An affirmative answer to the questions posed by the criteria in s 198A(3)(a), reached by reference only to the specified country’s laws and international obligations, is not the end of the necessary ministerial inquiry. Constitutional guarantees, protective domestic laws and international obligations are not always reflected in the practice of states. There are examples around the world of governments whose implementation of human rights standards fall short of the authoritative legal texts, be they constitutional or statutory, or embedded in treaties and conventions which, on the face of it, bind them. The existence of a relevant legal framework which on paper would answer the criteria in s 198A(3) cannot therefore always be taken as a sufficient condition for the making of a declaration. The Minister must ask himself the questions required by the criteria on the assumption that the terms “provide” and “meet” require consideration of the extent to which the specified country adheres to those of its international obligations, constitutional guarantees and domestic statutes which are relevant to the criteria.

Conclusion

[68]  The ministerial declaration of 25 July 2011 was affected by jurisdictional error. It was not a declaration authorised by s 198A of the Migration Act. The plaintiffs cannot therefore be taken to Malaysia pursuant to the power conferred by s 198A(1). Nor is it open to any officer of the Commonwealth to remove the plaintiffs to Malaysia pursuant to s 198(2) of the Migration Act without first assessing their claims to be persons to whom Australia owes protection obligations.

Per Gummow, Hayne, Crennan and Bell JJ: 
[134]  The observations and judgments made in the DFAT advice demonstrated, and the facts that have been agreed for the purposes of these proceedings demonstrate, that none of the first three criteria stated in s 198A(3)(a) was or could be met in the circumstances of these matters.

[135]  As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i)–(iii). The Minister’s conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration. The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.

[136]  The Minister’s declaration was made beyond power. It follows that s 198A(1) cannot be engaged to take either plaintiff from Australia to Malaysia. And as earlier demonstrated, s 198 does not supply any power to remove either plaintiff from Australia to Malaysia.

Per Kiefel J:

[256]  It may also be concluded that the Minister misconceived the nature of the enquiry posed by s 198A(3)(a) in the respects mentioned by the plaintiffs, although the plaintiffs’ claims to relief do not require resort to this additional ground. The Minister, in relying upon what was to be provided by the Arrangement, did not address the correct questions. The enquiry under s 198A(3)(a) is as to the state of the laws of the country proposed to be the subject of a declaration and it is to be undertaken at the date of such declaration. In directing himself to the assurances in the Arrangement, as to what was to occur in the future, the Minister disclosed that he misunderstood what was required by s 198A(3)(a). His decision was therefore attended by jurisdictional error.

3. In respect of Plaintif M106, is an officer constrained in the exercise of power under s 198A(1) to take an offshore entry pwerson fro Australia to Malaysia by reason of a legal relationship between the Minister and the Plaintiff as a minor or as a non-citizen child within the meaning of the Immigration (Guardianship of Children) Act 1946 (Cth)?

Per Gummow, Hayne, Crennan and Bell JJ (with whom French CJ and Kiefel J agreed):
[146]  Accordingly, removal of a person from Australia who is a “non-citizen child” within the meaning of the IGOC Act, or the taking of that child to another country pursuant to s 198A, cannot lawfully be effected without the consent in writing of the Minister (or his delegate). The decision to grant a consent of that kind would be a decision under an enactment and would therefore engage the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, in particular, the provisions of that Act concerning the giving of reasons as well as the availability of review on any of the grounds stated in that Act. The Minister and the Commonwealth accepted that this would be so.

[147]  No consent in writing having been given by the Minister under the IGOC Act for the second plaintiff to leave Australia, there need be no further consideration of the questions presented by the possible engagement of the Administrative Decisions (Judicial Review) Act. Nor is it necessary to examine any wider question about the content or application of the Minister’s duties as guardian. It is enough to observe that the removal of the second plaintiff without that consent would be unlawful. The power to take to another country that is given by s 198A(1) can be exercised only if that taking is not otherwise unlawful.