Plaintiff M70/2011 v Minister for Immigration and Citizenship
[2011] HCA 32
•31 August 2011
HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJMatter No M70/2011
PLAINTIFF M70/2011 PLAINTIFF
AND
MINISTER FOR IMMIGRATION AND CITIZENSHIP
& ANOR DEFENDANTSMatter No M106/2011
PLAINTIFF M106 OF 2011 BY HIS LITIGATION
GUARDIAN, PLAINTIFF M70/2011 PLAINTIFFAND
MINISTER FOR IMMIGRATION AND CITIZENSHIP
& ANOR DEFENDANTSPlaintiff M70/2011 v Minister for Immigration and Citizenship
Plaintiff M106 of 2011 v Minister for Immigration and Citizenship
[2011] HCA 32
31 August 2011
M70/2011 & M106/2011ORDER
Matter No M70/2011
1.Declare that the declaration made by the "Instrument of Declaration of Malaysia as a Declared Country under subsection 198A(3) of the Migration Act 1958" dated 25 July 2011 was made without power and is invalid.
2.The first defendant, whether by his officers or otherwise howsoever, is restrained from taking the plaintiff from Australia to Malaysia.
3.The defendants pay the plaintiff's costs of the proceedings to date before Hayne J and the Full Court.
Matter No M106/2011
1.Declare that the declaration made by the "Instrument of Declaration of Malaysia as a Declared Country under subsection 198A(3) of the Migration Act 1958" dated 25 July 2011 was made without power and is invalid.
2.The first defendant, whether by his officers or otherwise howsoever, is restrained from taking the plaintiff from Australia to Malaysia.
3.The first defendant, whether by his officers or otherwise howsoever, is restrained from taking the plaintiff from Australia without there being a consent in writing of the Minister given under s 6A(1) of the Immigration (Guardianship of Children) Act 1946 (Cth).
4.The defendants pay the plaintiff's costs of the proceedings to date before Hayne J and the Full Court.
Representation
D S Mortimer SC and R M Niall SC with C L Lenehan, K L Walker, E A Bennett and M L L Albert for the plaintiff in both matters (instructed by Allens Arthur Robinson Lawyers)
S J Gageler SC, Solicitor-General of the Commonwealth and G R Kennett SC with S P Donaghue and N M Wood for the defendants (instructed by Australian Government Solicitor)
Intervener
D F Jackson QC with C J Horan intervening on behalf of the Australian Human Rights Commission in M106/2011 (instructed by Australian Human Rights Commission)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Plaintiff M70/2011 v Minister for Immigration and Citizenship
Plaintiff M106 of 2011 v Minister for Immigration and CitizenshipCitizenship and migration – Migration – Refugees – Plaintiffs "unlawful non‑citizens" and "offshore entry persons" under Migration Act 1958 (Cth) – Plaintiffs detained under s 189(3) – Each plaintiff claimed asylum under Refugees Convention – Section 198(2) required officer to remove from Australia unlawful non-citizen in detention where no successful visa application made – Section 198A(1) empowered officer to take offshore entry person from Australia to country declared under s 198A(3) – Section 198A(3) empowered Minister to declare that specified country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum-seekers and refugees, and meets relevant human rights standards in providing protection – Whether s 198A only source of power to remove plaintiffs from Australia when asylum claims not assessed in Australia – Whether s 198(2) supplied power to remove plaintiffs from Australia.
Citizenship and migration – Migration – Refugees – Minister declared Malaysia under s 198A – Whether criteria in s 198A(3)(a)(i)-(iv) jurisdictional facts – Whether declared country must provide access and protections as matter of domestic or international legal obligation – Whether Minister's declaration valid.
Citizenship and migration – Migration – Refugees – Children – Second plaintiff entered Australia as unaccompanied minor and "non‑citizen child" under Immigration (Guardianship of Children) Act 1946 (Cth) – Section 6 had effect that Minister guardian of second plaintiff – Section 6A provided that non‑citizen child could not leave Australia except with consent in writing of Minister – No consent given – Whether taking of second plaintiff to another country lawful.
Words and phrases – "declare", "meets relevant human rights standards", "non‑citizen child", "offshore entry person", "provides access", "provides protection", "Refugees Convention", "unaccompanied minor", "unlawful non-citizen".
Immigration (Guardianship of Children) Act 1946 (Cth), ss 4AAA, 6, 6A.
Migration Act 1958 (Cth), ss 189, 198, 198A.FRENCH CJ.
Introduction
These proceedings involve legal issues which arise in a strongly contested area of public policy. The public policy contest relates to the way in which Australia deals with non-citizens who enter its territory by sea without visas and invoke Australia's protection obligations under the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) ("the Refugee Convention").
Courts exercising federal jurisdiction, for the last two decades in particular, have had to decide many judicial review applications in respect of administrative decisions affecting asylum seekers. Some of their decisions, including decisions of this Court, have had practical consequences for the implementation of government policy. It is the function of a court when asked to decide a matter which is within its jurisdiction to decide that matter according to law. The jurisdiction to determine the two applications presently before this Court authorises no more[1] and requires no less[2].
[1]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ; [1996] HCA 6, citing Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J; [1990] HCA 21.
[2]Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at 711 [9] per Spigelman CJ.
These applications are brought in the Court's original jurisdiction under ss 75(iii) and 75(v) of the Constitution. The plaintiffs, who are citizens of Afghanistan, arrived at the Australian territory of Christmas Island on 4 August 2011 in a boat designated SIEV 258, which had sailed to Australia from Indonesia. They each claim to have a well-founded fear of persecution in Afghanistan on grounds that would, if established, make them "refugees" to whom Australia owes protection obligations pursuant to the Refugee Convention. A refugee is any person who, according to Art 1.A(2) of the Refugee Convention:
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being … outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
An important protection obligation assumed by parties to the Refugee Convention, and relevant to this case, is that of "non-refoulement" embodied in Art 33.1 which provides:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
It is an Article which[3]:
"not only applies to refugees whether lawfully or unlawfully within the host territory, but also embraces all measures of return, including extradition, to a country where their lives or freedom would be threatened."
Article 33.1 nevertheless permits removal of a refugee to a "safe" third country, ie one in which there is no danger that the refugee might be sent from there to a territory where he or she will be at risk[4].
[3]NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 171 [21] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ; [2005] HCA 6, citing Shearer, "Extradition and Asylum", in Ryan (ed), International Law in Australia, 2nd ed (1984) 179 at 205.
[4]Lauterpacht and Bethlehem, "The Scope and Content of the Principle of Non-refoulement: Opinion", in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, (2003) 87 at 122, cited in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 222 CLR 161 at 172 [25] per Gleeson CJ, McHugh, Gummow, Hayne, Callinan and Heydon JJ.
The plaintiffs are designated M70 and M106 respectively. M70 is an adult and M106 is a minor who arrived in Australia unaccompanied by any parent or guardian. Both plaintiffs profess to be Shi'a Muslims. Lacking visas, both are "unlawful non-citizens" within the meaning of the Migration Act 1958 (Cth) ("the Migration Act")[5]. As a result of amendments to the Migration Act, made by the Migration Amendment (Excision from the Migration Zone) Act 2001 (Cth) ("the 2001 Excision Act"), Christmas Island is designated, for the purposes of the Migration Act, as an "excised offshore place"[6]. Having entered Australia at an excised offshore place, and being unlawful non-citizens, the plaintiffs are "offshore entry persons" within the meaning of the Migration Act[7]. That category was created by the 2001 Excision Act. The plaintiffs, upon arrival in Australia, became subject to discretionary detention under s 189(3) of the Migration Act, a subsection introduced by the Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth) ("the 2001 Excision Consequential Provisions Act"). Section 189(3) provides that:
"If an officer knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen, the officer may detain the person."
Both plaintiffs were detained upon their arrival at Christmas Island by an officer of the Commonwealth acting pursuant to the power conferred by s 189(3).
[5]Migration Act, ss 5(1) and 14.
[6]Migration Act, s 5(1).
[7]Migration Act, s 5(1).
As a consequence of their status as "offshore entry persons", and the operation of s 46A of the Migration Act, which was introduced by the 2001 Excision Act, neither plaintiff can make a valid application for a visa unless the Minister for Immigration and Citizenship ("the Minister") decides that it is in the public interest to let that plaintiff do so[8]. The Minister does not have a duty to consider whether to let the plaintiffs do so[9].
[8]Migration Act, s 46A(1) and (2).
[9]Migration Act, s 46A(7).
M70 travelled to Australia through Pakistan, Thailand, Malaysia and Indonesia. M106 travelled to Australia through Dubai, Thailand, Malaysia and Indonesia. The entry of each of them into Malaysia occurred without any authority under Malaysian immigration law.
Both plaintiffs are subject to a new administrative regime, established by the Commonwealth Government, for the transfer to Malaysia, without prior assessment of their protection claims, of up to 800 asylum seekers irregularly arriving in Australia by sea after 25 July 2011. The regime was established pursuant to an arrangement between Australia and Malaysia entered into on 25 July 2011 ("the Arrangement"). Under the Arrangement, assessment of the asylum seekers' claims for protection as refugees will be carried out in Malaysia by the United Nations High Commissioner for Refugees ("the UNHCR"). An officer of the Department of Immigration and Citizenship ("the Department") determined, on 7 August 2011, that M70 was liable for removal from Australia pursuant to the Arrangement and should be taken to Malaysia. In respect of M106, an officer of the Department assessed that the only impediment to his removal was the establishment in Malaysia of relevant support services for unaccompanied minors pursuant to the Arrangement. Neither plaintiff would go to Malaysia voluntarily. The proposed removal of M70 and M106 to Malaysia is to be carried out in purported reliance upon powers conferred by ss 198(2) and 198A(1) of the Migration Act.
Section 198(2) imposes on an officer a duty to remove from Australia as soon as reasonably possible an unlawful non-citizen who is in detention under s 189(3)[10]. As pointed out in Plaintiff M61/2010E v The Commonwealth[11], s 198(2) permits a person to be detained while steps are taken to determine whether the person should be allowed to make an application for a visa. Section 198(2) does not in terms condition the power of removal upon identification of the specific country to which the person is to be removed.
[10]Migration Act, s 198(2), read with s 193(1)(c).
[11](2010) 85 ALJR 133; 272 ALR 14; [2010] HCA 41.
Section 198A, which was introduced into the Migration Act by the 2001 Excision Consequential Provisions Act, provides for offshore entry persons to be taken to specified countries. Section 198A(1) provides that:
"An officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)."
Pursuant to s 198A(2) the power to "take" under s 198A(1) includes the power, within or outside Australia, to place and restrain a person on a vehicle or vessel, to remove a person from a vehicle or vessel and to use such force as is necessary and reasonable. As this Court observed in Plaintiff M61, the changes to the Migration Act effected by the enactment of ss 46A and 198A reflect "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."[12]
[12](2010) 85 ALJR 133 at 141 [34]; 272 ALR 14 at 23.
On 25 July 2011 a declaration with respect to Malaysia was made by the Minister purportedly acting under s 198A(3) of the Migration Act. That subsection, which is at the centre of these proceedings, provides:
"The Minister may:
(a) declare in writing that a specified country:
(i)provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and
(ii)provides protection for persons seeking asylum, pending determination of their refugee status; and
(iii)provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and
(iv)meets relevant human rights standards in providing that protection; and
(b)in writing, revoke a declaration made under paragraph (a)."
Of particular significance is s 198A(4) which provides that:
"An offshore entry person who is being dealt with under this section is taken not to be in immigration detention".
According to the Explanatory Memorandum for the 2001 Excision Consequential Provisions Bill those words mean that a person is not in "'immigration detention' … merely because the person is being dealt with under … section 198A."[13] They plainly do not and cannot bear that meaning. They explicitly exclude a person who is being dealt with under s 198A from being in immigration detention for any other purposes under the Act.
[13]Australia, Senate, Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001, Explanatory Memorandum at [27].
"Immigration detention" is defined in s 5(1) of the Migration Act. Relevantly, it means being in the company of, and restrained by, an officer or other person directed by the Secretary to accompany and restrain the detainee. It also means being held by, or on behalf of, an officer in a detention centre established under the Migration Act[14]. The term "officer" is defined by reference to various classes of person including officers of the Department[15]. The definition of "officer" is extended by s 198A(5), for the purposes of s 198A, to include a member of the Australian Defence Force.
[14]Migration Act, s 5(1)(a) and (b)(i) definition of "immigration detention".
[15]Migration Act, s 5(1).
It is part of the historical background to s 198A that it was enacted shortly after the announcement of the so-called "Pacific Solution" by which asylum seekers on board the MV Tampa in Australian waters adjacent to the territory of Christmas Island, were removed to the Republic of Nauru[16]. It is an agreed fact in these proceedings that on 10 September 2001 the President of the Republic of Nauru and the then Australian Minister for Defence signed a "Statement of Principles" in relation to asylum seekers which provided the basis for joint cooperation in humanitarian endeavours relating to asylum seekers. On 18 September 2001 the 2001 Excision Consequential Provisions Act was introduced into the House of Representatives. It came into force on 27 September 2001. On 2 October 2001, the then Minister for Immigration made a declaration under s 198A(3)(a) relating to the Republic of Nauru. At the time Nauru was not a party to the Refugee Convention. Its domestic law did not make any specific provision relating to persons who could be classified as refugees or asylum seekers under international law. This background was referred to by the defendants who contended that it informed the construction of s 198A(3)(a)(i)-(iv) and in particular the question whether a declaration could be made, under s 198A(3), solely on the basis of the relevant country's administrative practices and executive undertakings. The Court, however, must look to the text, context and purpose of the relevant statutory provision. The invocation, in 2001, of s 198A to support a declaration in relation to the Republic of Nauru shortly after an agreement had been entered into between Australia and Nauru, cannot determine the construction of the section.
[16]See generally Ruddock v Vadarlis (2001) 110 FCR 491.
The plaintiffs' applications and their primary contentions
M70 and M106 commenced these proceedings on 7 August 2011, filing one application naming themselves and a number of other persons similarly situated as plaintiffs. They claimed, inter alia, an injunction and order in the nature of prohibition restraining the Minister and the Commonwealth from taking any steps to remove them from Australia.
On 8 August 2011, Hayne J made an interlocutory order restraining the Minister from removing from Australia any of the persons then named as plaintiffs until the hearing and determination of their application to this Court. The proceedings were amended to constitute separate applications made in respect of M70 and M106 only as plaintiffs[17]. The applications were referred, by order of Hayne J, to the Full Court and proceeded upon the basis of an agreed statement of facts. An affidavit sworn by the Minister was also before the Court.
[17]See s 486B(4) of the Migration Act which prohibits the joinder of plaintiffs or applicants or the addition of parties in migration proceedings. Its validity in relation to the constitutional jurisdiction conferred upon this Court has not been considered.
The common contentions of the plaintiffs are:
1.The only source of power to take them from Australia to Malaysia is s 198A of the Migration Act.
2.That power is conditioned upon the Minister making a valid declaration under s 198A(3) of the Migration Act.
3.The declaration made on 25 July 2011 was not validly made because:
(i)the four criteria set out in s 198A(3)(i)-(iv) are jurisdictional facts which did not exist; or
(ii)alternatively, they are facts of which the Minister had to be satisfied before making a declaration and he was not so satisfied because he misconstrued the criteria.
4.The exercise of the discretionary power conferred by s 198A(1) miscarried in relation to M70 and, unless restrained, will miscarry with respect to M106 because:
(i)it was or would be unlawfully fettered by ministerial direction dated 25 July 2011 to all officers exercising that power; and
(ii)the decision-maker failed or would have failed to consider the individual circumstances of M70 in relation to his liability for prosecution in Malaysia for an offence against Malaysian immigration law.
It was also submitted, on behalf of M106, that the Minister's statutory responsibilities as his guardian pursuant to s 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) ("the IGOC Act") required that he consider the exercise of his powers under ss 46A and 195A of the Migration Act to allow M106 to apply for a visa. Moreover, his consent in writing was required pursuant to s 6A of the IGOC Act before M106 could be removed from Australia.
Before considering these contentions, it is necessary to review the establishment of the Arrangement, the basis upon which the Minister made his declaration and the determinations made by officers of the Department relating to the removal of M70 and M106 to Malaysia.
The Arrangement
On 7 May 2011, the Prime Ministers of Australia and Malaysia released a joint statement. They announced their commitment to enter into a bilateral arrangement in the form of a cooperative transfer agreement that would see up to 800 asylum seekers arriving by sea in Australia transferred to Malaysia for assessment of their claims to be refugees. In exchange, "Australia [would] expand its humanitarian program and take on a greater burden-sharing responsibility for resettling refugees currently residing in Malaysia."[18] Australia committed to resettling, over a period of four years, 4,000 refugees then residing in Malaysia. Senior officials of the two governments were asked to finalise a Memorandum of Understanding to set out detailed arrangements. Both countries were said to be working closely with the UNHCR and the International Organization for Migration "to operationalise the arrangement."
[18]Joint Press Statement of Australia and Malaysia, 7 May 2011.
On 12 May 2011 the Minister wrote to the Secretary of the Department referring to the announcement. He said:
"Flowing from that announcement, I am formally directing you that, until further notice, no processing of any asylum claims is to occur in relation to offshore entry persons who are intercepted or arrive directly in Australia after 7 May 2011. I do not wish to consider exercising any of my powers under the Migration Act 1958 to give such individuals access to visas, in particular my powers pursuant to section 46A or section 195A.
It is my expectation that such individuals will be taken to Christmas Island and removed from Australia as soon as reasonably practicable. In practice, this will involve individuals being removed to Malaysia or another country with which transfer or processing arrangements are agreed, with any asylum claims being assessed in that other country."
On 20 May 2011, the Minister received a submission from an officer of the Department recommending that, as a matter of routine, the Department use the removal power under s 198(2) of the Migration Act to remove, to a transfer country, offshore entry persons who arrive irregularly by sea. That recommendation was agreed to by the Minister. The officer also submitted to the Minister that there was merit in making a declaration under s 198A(3). Such a declaration, it was said, "would symbolise government confidence that the transfer arrangements are protection-sensitive and may ameliorate some potential public criticism that it is not so." It was said that the Minister's consideration of proposed declarations under s 198A(3) would be sought in separate submissions as transfer arrangements were finalised. The submission contemplated the possibility that there might be a number of declarations each relating to a different country.
The Arrangement, foreshadowed in the Joint Press Statement of Australia and Malaysia of 7 May 2011, was entered into on 25 July 2011 and signed by the Minister and the Malaysian Minister of Home Affairs. Key elements of the Arrangement, in so far as it applies to persons to be transferred from Australia to Malaysia, are as follows:
1.Australia will transfer certain persons seeking international protection to Malaysia for refugee status determination[19].
[19]Arrangement, cl 1.2.
2.The transferees to be transferred to Malaysia will be those persons who, after the date of signing of the Arrangement, have travelled irregularly by sea to Australia or have been intercepted at sea by Australian authorities. They will be persons who:
(i)the government of Australia determines should be transferred to Malaysia;
(ii)under Australian law, may be transferred to a declared country for processing or taken to a place outside Australia or removed from Australia; and
(iii)the Government of Malaysia provides consent and approval for the transfer[20].
[20]Arrangement, cl 4.1(a).
3.Where a transferee is determined to be a refugee, he or she will be referred to resettlement countries pursuant to the UNHCR's normal processes and criteria[21].
[21]Arrangement, cl 6.
4.The Government of Malaysia will accept up to an agreed maximum of 800 transferees[22].
[22]Arrangement, cl 7.1.
5.Transferees will be treated "with dignity and respect and in accordance with human rights standards."[23]
[23]Arrangement, cl 8.1.
6.Special procedures will be developed and agreed to by the participants to deal with the special needs of vulnerable cases including unaccompanied minors[24].
[24]Arrangement, cl 8.2.
7.Australia will meet all costs arising under the Arrangement in relation to, inter alia[25]:
[25]Arrangement, cl 9.1.
.the health and welfare (including education of minor children) of transferees in accordance with the UNHCR's model of assistance in Malaysia;
.additional costs related to meeting special welfare needs of transferees;
.costs for registration of transferees and for their refugee status determination (and any appeal in relation to that determination) and assessment of other protection obligations; and
.costs related to the resettlement in a third country of transferees determined to be in need of international protection that are not met by the third country.
8.Australia will put in place an "appropriate pre-screening assessment mechanism in accordance with international standards before a transfer is effected."[26]
9.Malaysia will provide transferees with the opportunity to have their asylum claims considered by the UNHCR and will "respect the principle of non-refoulement."[27]
10.Malaysia will facilitate the transferees' lawful presence during any period that their claims to protection are being considered and, where they are determined to be in need of protection, during any period while they wait to be resettled[28].
11.While in Malaysia, transferees will enjoy standards of treatment consistent with those set out in the Operational Guidelines to Support Transfers and Resettlement to Malaysia ("the Operational Guidelines") contained in Annex A to the Arrangement[29].
12.If a transferee is found not to be a refugee and does not agree to return to his or her country of origin voluntarily, forced returns might be necessary[30]. Australia will assist Malaysia as may be agreed to facilitate the return of transferees[31].
13.In relation to any proposed forced return, the Government of Malaysia will provide the Government of Australia with an opportunity to consider the broader claims of any transferee to protection under other relevant human rights conventions. Should such claims be established, the Government of Australia will make suitable alternative arrangements for the removal of the transferee from Malaysia[32].
14.Operations under the Arrangement will be carried out "in accordance with the domestic laws, rules, regulations and national policies from time to time in force in each country and in accordance with [Australia and Malaysia's] respective obligations under international law."[33]
15.The Arrangement represents a "record of [Australia and Malaysia's] intentions and political commitments" but is not to be "legally binding on [Australia and Malaysia]."[34]
16.The Arrangement is in effect for a period of four years from the date of signature by Australia and Malaysia[35].
[26]Arrangement, cl 9.3.
[27]Arrangement, cl 10.2(a).
[28]Arrangement, cl 10.3(a).
[29]Arrangement, cl 10.4(a).
[30]Arrangement, cl 11.1(b).
[31]Arrangement, cl 11.1(c).
[32]Arrangement, cl 11.2.
[33]Arrangement, cl 12.1.
[34]Arrangement, cl 16.
[35]Arrangement, cl 19.
The Operational Guidelines covered, inter alia, the transfer process from Australia to Malaysia, post-arrival arrangements for transferees in Malaysia, the situation of transferees during their temporary stay in Malaysia, the resettlement of refugees from Malaysia to Australia and the terms of reference and membership of a proposed joint committee and an advisory committee.
The making of the declaration under s 198A(3)
On 22 July 2011, three days before the Arrangement was executed, the Minister received a submission from an officer of the Department ("the Submission"), which included the following recommendations:
"1.agree … that the Department will effect the duty to remove an unlawful non-citizen under s 198(2) of the Migration Act 1958 (the Act) by exercising the power in s 198A(1) of the Act to transfer offshore entry persons from Australia to a third country;
2.agree, on the basis of the material in this submission, that Malaysia meets the criteria set out in subsection 198A(3) of the Act;
3.sign the instrument of declaration at Attachment D so as to make Malaysia a declared country for the purposes of section 198A of the Act".
The Minister was told in the Submission that, before making a declaration under s 198A(3) in respect of Malaysia, he should satisfy himself that Malaysia met the criteria set out in that subsection. The Submission stated:
"7. The information you could use to satisfy yourself of these matters could come from a range of sources including agreements or undertakings between the Governments of Australia and Malaysia, advice from the Department of Foreign Affairs and Trade (DFAT), and consultation with the United Nations High Commissioner for Refugees (UNHCR)."
The Submission referred to three matters relevant to the statutory criteria:
.The Arrangement – according to the Submission, the Department was "satisfied" that the protections afforded to transferees under the Arrangement and the Operational Guidelines met the criteria of which the Minister was required to be satisfied before making a declaration under s 198A(3). Malaysia, it was said, had made "a clear commitment" under the Arrangement:
"that transferred persons will be provided with access to effective procedures for assessing their need for protection (through the UNHCR) (clause 10); that they will be provided with protection pending determination of their refugee status (clause 10); and that they will be treated with dignity and respect and in accordance with human rights standards (clause 8)."
Malaysia was also said to have made a "commitment" to "respect the principle of non-refoulment (clause 10)."
.Advice from the Department of Foreign Affairs and Trade ("DFAT") – the Minister was referred to an assessment provided by DFAT which was said to support the proposition that Malaysia is a country which the Minister could be satisfied met the criteria under s 198A(3) ("the DFAT assessment").
.Consultation with the UNHCR – the UNHCR indicated, by a covering note and aide memoire of 19 July 2011, that it assessed the final draft of the Arrangement and Operational Guidelines as "workable". The UNHCR would continue to engage with both countries in bringing the Arrangement into effect, albeit its support was conditional on the Arrangement being implemented with full respect for human rights standards and the UNHCR being satisfied with Australia's approach to pre-transfer assessments, on which the UNHCR was expected to provide detailed comment.
The Submission continued:
"13. Based on the information above, we think it is open to you to be satisfied that Malaysia meets the criteria set out in s 198A of the Act. Accordingly, we recommend you sign the proposed instrument of declaration at Attachment D, declaring Malaysia under s 198A(3) of the Act."
On 25 July 2011, the Minister made a declaration in relation to Malaysia under s 198A(3) of the Migration Act. On the same day he issued a direction to the Secretary of the Department, including the following:
"Until further notice, no processing of any asylum claims is to occur in relation to offshore entry persons who are intercepted or who arrive directly in Australia after 25 July 2011. I do not wish to consider exercising any of my powers under the Migration Act 1958 to give such individuals access to visas, in particular my powers under s46A or s195A. It is my expectation that such individuals will be taken to Christmas Island and removed to Malaysia in accordance with the Arrangement, with any asylum claims being assessed in that country."
The directions superseded those contained in the letter of 12 May 2011[36].
[36]The Commonwealth submitted, in answer to a question from the Court, that the direction of 25 July 2011 did not constitute a direction for the purposes of s 499 of the Migration Act. Such a direction would need to have been laid before each House of the Parliament: Migration Act, s 499(3).
The DFAT assessment
The DFAT assessment was organised under headings reflecting each of the criteria in s 198A(3) of the Migration Act. It made the following salient points:
.Malaysia is not a party to the Refugee Convention and does not itself grant refugee status or asylum or have in place legal protections for persons seeking asylum.
.Malaysian authorities nevertheless "generally cooperate with the UNHCR".
.There are, according to the UNHCR, "'credible indications that forcible deportations of asylum seekers and refugees had ceased in mid-2009.'"
.A number of "fundamental liberties" are contained in the Malaysian Federal Constitution and the Malaysian Human Rights Commission is active in fulfilling its mandate with respect to those rights, including inquiries about complaints.
.Illegal immigrants in Malaysia are liable to imprisonment and/or a fine and caning of not more than six strokes.
.Access to health care is provided to refugees with cards issued by the UNHCR at a discounted rate available to foreigners. However, the costs are generally beyond the means of refugees.
.Lack of official status has impeded access by refugees to sustainable livelihoods or formal education.
.Credible allegations have been made regarding inadequate standards in immigration detention centres.
.Malaysia is not a party to the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. It is a party to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child.
The Minister's affidavit
The Minister swore an affidavit on 14 August 2011 in which he said, inter alia:
.The signing of the Arrangement followed intensive negotiations between Australia and Malaysia in which the Minister was personally involved.
.The Minister formed an "understanding" from his conversations with the Malaysian Minister of Home Affairs and other Malaysian officials that the Malaysian Government "was keen to improve its treatment of refugees and asylum seekers." The Minister considered this to be a "clear theme of the discussions." He said:
"I formed a clear belief from these discussions that the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons. It was also clear to me that the Malaysian government was enthusiastic about using the transfer of 800 persons under the proposed arrangement as a kind of 'pilot' for their new approach to the treatment of asylum seekers generally."
.Malaysia was "actively considering" allowing work rights for all asylum seekers. The Minister referred to a statement made by the Malaysian Minister of Home Affairs at the announcement of the signing of the Arrangement on 25 July 2011.
.The Minister said that in making the declaration he had regard to the Submission. He said:
"In making the Declaration, I understood that I needed to consider whether Malaysia met the criteria set out in subsection 198A(3) of the Migration Act 1958 generally, and not only whether the particular persons transferred under the agreement would receive treatment in accordance with those criteria."
.The Minister said he took into account the material in the Submission and, in particular, the DFAT assessment, which reassured him that Malaysia "did provide basic support and protection to asylum seekers." He also took into account his own knowledge of Malaysia's commitment to improving its processes for dealing with asylum seekers and his knowledge of the conceptual shift within Malaysia in its thinking about how it wanted to treat refugees, its desire to use the transfer of 800 persons as a "pilot" for its new arrangements, and its consideration of allowing work rights for all asylum seekers.
.The Minister said that he relied upon the Arrangement and the Operational Guidelines "as supporting the view I had formed that Malaysia was committed to a new approach to dealing with refugees." He considered the willingness of the Malaysian Government to enter into the Arrangement to be an indication of the seriousness of its commitment.
The Immigration Act 1959 (Malaysia) and the Exemption Order
It is an agreed fact that Malaysia does not recognise the status of refugees in domestic law. The Immigration Act 1959 (Malaysia) ("the Malaysian Immigration Act") does not contain any provisions or protections relating to persons who, under Australian or international law, would be classified as refugees or asylum seekers. Section 6 of the Act provides that no person other than a citizen shall enter Malaysia unless in possession of a valid entry permit or a valid pass, or exempted from the operation of the section by an order made under s 55. Any contravention of s 6 is an offence and a person is liable, on conviction, to a fine, imprisonment for a term not exceeding five years or both, and liable to whipping of not more than six strokes[37].
[37]Malaysian Immigration Act, s 6(3).
Prohibited immigrants are defined in s 8 of the Act to include any person who, in the opinion of the Director General, is a member of a prohibited class and is not a citizen[38]. The prohibited classes include[39]:
"any person whose entry into Malaysia is, or at the time of his entry was, unlawful under this or any other written law for the time being in force".
They also include[40]:
"any person who is unable to show that he has the means to support himself and his dependants (if any) or that he has definite employment awaiting him, or who is likely to become a pauper or a charge on the public".
[38]Malaysian Immigration Act, s 8(1)(a).
[39]Malaysian Immigration Act, s 8(3)(h).
[40]Malaysian Immigration Act, s 8(3)(a).
An exemption order may be made under s 55(1) of the Act which provides:
"Notwithstanding anything contained in this Act, the Minister may by order exempt any person or class of persons, either absolutely or conditionally, from all or any of the provisions of this Act and may in any such order provide for any presumptions necessary in order to give effect thereto."
On 5 August 2011, an order was made by the relevant Malaysian Minister exempting from the requirements of s 6 of the Malaysian Immigration Act persons entering Malaysia through the Arrangement and allocated with serial numbers issued by the Department of Immigration of Malaysia to each such person. The exemption was to become void if any of the listed persons:
(a)had been registered as a "refugee" by the UNHCR;
(b)had been arranged to be repatriated to his country of origin;
(c) was found to be involved in any criminal activities or had been charged in any court in Malaysia;
(d)was found to be involved in any activity contrary to Malaysian law; and
(e)had been listed as a prohibited immigrant under s 8(1) of the Malaysian Immigration Act[41].
The subject matter of the conditions does not readily support the view that they are to be read cumulatively. It is difficult to see how pars (a) and (b) could stand together, or for that matter, pars (c) and (d).
[41]Exemption order, cl 4.1.
It is an agreed fact that the plaintiffs will be subject to Malaysian law, including offences under Malaysian law for illegal entry to and exit from the country, subject to the effect, if any, of the terms of the exemption. There is nothing on the face of the exemption order to protect the plaintiffs from being charged and prosecuted in a Malaysian court for an offence against s 6 of the Malaysian Immigration Act associated with their entry into Malaysia on their way to Indonesia. On the assumption that the voiding criteria in the exemption order are to be read disjunctively, the laying of a charge would itself appear to vitiate the exemption order and raise the question whether the person charged would be liable to classification as a prohibited immigrant. So too would the listing of a person as a prohibited immigrant on account of his or her destitution.To raise these questions is not to express a concluded view on matters of Malaysian law or administrative practice. It is sufficient to observe that there was not, in the material before the Minister, evidence of any legal protection against such eventualities in relation to the plaintiffs or other "offshore entry persons".
Plaintiffs M70 and M106 – post-arrival detention and pre-removal assessment procedures
Upon the arrival of M70 and M106 in Australian territory, an immigration detention operations officer read to them and others a group statement and detained them under s 189(3) of the Migration Act. In the group statement it was said[42]:
"If you are a child, I am satisfied that in all circumstances your detention is a measure of last resort. In accordance with Australian Government policy, you will be detained in alternative accommodation, not a detention centre."
[42]See Migration Act, s 4AA(1).
A pre-removal assessment was completed in respect of M70 on 4 August 2011. The assessment was carried out by a departmental officer by reference to a number of departmental documents. These included a copy of the Arrangement and the Operational Guidelines annexed to it, and documents entitled Operational Guidelines – Pre-removal Assessment Process for Transfers to a Third Country for Processing ("the Pre-removal Assessment Guidelines"), Onshore Protection Interim Procedures Advice on Assessing International Obligations and Protection/non-refoulement Guidance for Pre-Removal Assessment Officers. The assessing officer also had a record of a Biodata and Personal Circumstances interview with M70 and a Fitness to Travel Assessment Questionnaire.
The Pre-removal Assessment Guidelines were to be applied to offshore entry persons to be transferred to a third country for processing, consistent with the Minister's direction of 25 July 2011. The document stated that there would be no broad exemption from transfer for defined groups, but also said:
"However, an assessment of individual circumstances will be undertaken to ensure both fitness to travel and compliance with Australia's international obligations prior to a person's removal from Australia."
The purposes of the pre-removal assessment were said to be to:
.identify protection claims – this was a reference to protection claims in relation to the country to which the person was to be taken; in this case Malaysia. There was no process for assessment of other protection claims;
.identify vulnerabilities and heightened risks in relation to all potential transferees but particularly in relation to unaccompanied children; and
.confirm fitness to travel.
There was also provision in relation to unaccompanied minors for an assessment of the best interests of the child. The assessments were to be provided to "Pre-Removal Assessment Team Leaders" who would make one of the following recommendations:
1. There are no impediments to removal.
2.There are impediments to immediate removal but removal can proceed subject to relevant actions being undertaken prior to removal in the future.
3.There are longer term impediments to removal.
The intended disposition of the last category of persons was not apparent. There was also provision for management of people not removed to a third country with the observation that "[o]ptions for dealing with these cases are being finalised."
The document entitled "Protection/non-refoulement Guidance for Pre-Removal Assessment Officers" directed officers that they were not to assess whether the person was a refugee under Art 1A of the Refugee Convention. The assessment was essentially as to whether the country (in this case Malaysia) was a "safe third country". That may be taken as a reference to a safe third country in relation to the person claiming asylum. Officers were referred to the Council of the European Union Council Directive on Minimum Standards on Procedures in Member States for granting and withdrawing Refugee Status. The officers were also given advice in the document, based on the terms of the Arrangement, that:
"The Malaysian Government has made a clear commitment that Transferees will be in Malaysia lawfully and will not be considered illegal immigrants as they will have entered Malaysia lawfully."
Pre-removal assessment of M70
M70 claims to have a well-founded fear of persecution in Malaysia on account of his religion. However, no such claim was recorded in his pre-removal assessment. The officer conducting the pre-removal assessment found that his removal to Malaysia would not breach Australia's non-refoulement obligations. The officer referred to M70's Shi'a religion and, after reviewing the position with respect to Shi'a Muslims in Malaysia, found nothing to suggest that M70 "would be more at risk of harm than any other Shi'a Muslim in Malaysia." On that basis the officer found "there [was] not a real risk that [M70 would] be detained or prosecuted because he is a practising Shi'a Muslim if he were removed to Malaysia." The assessing officer found that "the Arrangement between Australia and Malaysia contains provisions that will provide [M70] with a sufficient level of support in Malaysia and ensure that he is treated with dignity and respect, in accordance with human rights standards."
Pre-removal assessment of M106
In his interview with the assessing officer, M106 expressed concern about his status as a minor and his belief that refugees in Malaysia were not well treated. Nevertheless, the assessing officer found that M106's removal to Malaysia would not breach Australia's non-refoulement obligations. He found that, having regard to the Arrangement, M106 would be treated with dignity and respect and in accordance with human rights standards. As an unaccompanied minor he would be monitored by the UNHCR Children at Risk Team. The officer was satisfied that the Arrangement contained provisions that would provide M106 with a sufficient level of support during the transit period and once he had settled in Malaysia. Nevertheless, the recommendation of the pre-removal assessment team leader was that:
"[T]here are impediment(s) to immediate removal, however removal can proceed subject to the relevant actions being undertaken prior to removal, as outlined above."
The "relevant actions" referred to the requirement that support services for unaccompanied minors should be in place pursuant to the Arrangement prior to removal to Malaysia.
Sections 198 – legislative history
It was submitted for the plaintiffs that the only source of the Commonwealth's power to remove them to Malaysia was derived from s 198A(1) of the Migration Act. The Commonwealth, on the other hand, contended that it could act under s 198(2) of the Migration Act. The Court was referred to the legislative history of those provisions.
Section 54ZF of the Migration Act, now numbered s 198, was part of a suite of amendments introduced into the Act by the Migration Reform Act 1992 (Cth) ("the 1992 Act"). The 1992 Act created the visa as the authority under which a non-citizen could enter Australia. It provided for classes of visa to replace the entry permit system[43]. It introduced a particular class of temporary visas to be known as "protection visas"[44]. A criterion for the grant of such a visa, now embodied in s 36(2)(a) of the Migration Act, was[45]:
"that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."
The designation "temporary" qualifying the class of protection visas was removed in 1994[46].
[43]1992 Act, s 10 enacting subdiv A of Div 2 of Pt 2.
[44]1992 Act, s 10 enacting s 26B.
[45]1992 Act, s 10 enacting s 26B.
[46]Migration Legislation Amendment Act 1994 (Cth), s 9.
The 1992 Act also introduced a regime for the mandatory detention and removal of unlawful non-citizens[47]. Today the detention regime is found in Div 7 of Pt 2 of the Migration Act comprising ss 188 to 197AG. The precursor of s 189, as enacted by the 1992 Act, was s 54W, imposing on officers a duty to detain unlawful non-citizens. Section 54ZD(1) provided, as does s 196(1) today, that an unlawful non-citizen detained under s 54W must be kept in immigration detention until he or she is removed from Australia under ss 54ZF or 54ZG, or deported or granted a visa. The removal regime is found in Div 8 which comprises ss 198 to 199. Section 54ZF(2) imposed a duty upon an officer to remove, as soon as reasonably practicable, an unlawful non-citizen who had been refused immigration clearance and either had not made a valid application for a substantive visa or had made such an application which had been finally determined. From its introduction in 1992, the scheme in which s 198(2) now takes its place linked the removal of unlawful non-citizens to the visa application process, including applications for protection visas.
[47]By the insertion of a new Div 4C in Pt 2 of the Migration Act comprising ss 54V-54ZE relating to mandatory detention and a new Div 4D, comprising ss 54ZF-54ZG relating to the removal of unlawful non-citizens: 1992 Act, s 13.
In its application to unlawful non-citizens claiming protection as refugees, the mandatory detention and removal scheme therefore revolves, as counsel for the plaintiffs put it, around processing their claims through the visa system and removing those who are unsuccessful. The assessment of claims for protection under the Refugee Convention and the grant of protection visas occur in a regime in which detention is mandatory. In this aspect of its operation the characterisation of the scheme is reflected in the observation of the Court in Plaintiff M61[48]:
"[T]he Migration Act proceeds, in important respects, from the assumption that Australia has protection obligations to individuals. Consistent with that assumption, the text and structure of the Act proceed on the footing that the Act provides power to respond to Australia's international obligations by granting a protection visa in an appropriate case and by not returning that person, directly or indirectly, to a country where he or she has a well-founded fear of persecution for a Convention reason."
[48](2010) 85 ALJR 133 at 139-140 [27]; 272 ALR 14 at 21.
Safe third country provisions
Amendments to the Migration Act facilitating the removal of asylum seekers to safe third countries in order to comply with Australia's non-refoulement obligations were referred to by the defendants. They were relied upon to link the power conferred by s 198A to the power conferred by s 198(2).Subdivision AI of Div 3 of Pt 2 of the Migration Act, originally entitled "Certain non-citizens unable to apply for certain visas", now entitled "Safe third countries"[49], was enacted by the Migration Legislation Amendment Act (No 4) 1994 (Cth). The subdivision envisages agreements between Australia and other countries relating to persons seeking asylum. In the light of such an agreement the Minister can prescribe a country as a safe third country[50]. A person with a right to enter and reside in that country cannot validly apply for a protection visa[51] unless the Minister determines in the public interest to allow such an application[52]. As the defendants submitted, the effect of that regime is that, where it applies, a person cannot insist that claims for protection be assessed by Australia, whether or not that person is a refugee within the meaning of the Refugee Convention. Such a person, if detained as an unlawful non-citizen, is liable to removal under s 198(7) of the Act subject to the conditions set out in that subsection[53].
[49]Migration Act, subdiv AI, Div 3 of Pt 2.
[50]Migration Act, s 91D.
[51]Migration Act, ss 91C(1)(b)(ii) and 91E.
[52]Migration Act, s 91F(1).
[53]Migration Act, s 91A.
The Border Protection Legislation Amendment Act 1999 (Cth) ("the 1999 Act") made amendments to the Migration Act "to prevent forum shopping"[54]. In a Supplementary Explanatory Memorandum to the Bill its purpose was explained thus[55]:
"These amendments will ensure that persons who are nationals of more than one country, or who have a right to enter and reside in another country where they will be protected, have an obligation to avail themselves of the protection of that other country."
Section 36 of the Migration Act, which sets out the criteria for the grant of protection visas, was amended by the 1999 Act which added sub-ss (3) to (7) to give effect to that purpose. Broadly speaking, a person in the circumstances described in the Supplementary Explanatory Memorandum would not be a person to whom Australia was taken to have protection obligations and therefore would not be a person satisfying a necessary criterion for the grant of a protection visa under s 36(2) of the Migration Act.
[54]1999 Act, s 3, Sched 1, Pt 6.
[55]Australia, Senate, Border Protection Legislation Amendment Bill 1999, Supplementary Explanatory Memorandum at [2].
The 1999 Act also enacted ss 91M to 91Q under subdivision AK headed "Non-citizens with access to protection from third countries"[56]. By s 91P, a non-citizen to whom the subdivision applies is unable to make a valid application for a protection visa while he or she remains in the migration zone. The subdivision applies, by operation of s 91N(2), to a non-citizen who has a right to re-enter and reside in a country in which the non-citizen has resided for a continuous period of at least seven days and in respect of which a declaration by the Minister is in effect under s 91N(3). The criteria for a declaration under s 91N(3) foreshadowed the criteria in s 198A(3). An unlawful non-citizen to whom subdiv AK applies, who is a detainee, must also be removed "as soon as reasonably practicable" pursuant to s 198(9) unless certain conditions are met, one of which may be that the person has made a valid application for a visa.
[56]1999 Act, s 3, Sched 1, item 67.
Subdivisions AI and AK do not in the end bear upon the operation of s 198A or its relationship to s 198(2). Those subdivisions are concerned with circumstances in which a safe third country can be identified for a particular asylum seeker. This identification necessarily involves assessment of the asylum seeker's claims notwithstanding that he or she cannot validly apply for a visa.
The relationship between ss 198(2) and 198A(1)
The changes made by the 2001 Excision Act and the 2001 Excision Consequential Provisions Act, the latter Act enacting s 198A, have already been described. As this Court said in Plaintiff M61[57]:
"[T]he 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."
[57](2010) 85 ALJR 133 at 141 [34]; 272 ALR 14 at 23.
It was submitted for the defendants that s 198A could be construed as limiting the power conferred by s 198(2) only if both provisions are properly characterised as conferring "the same power". The constructional principle thereby invoked was discussed in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[58]. In that case, Gavan Duffy CJ and Dixon J said[59]:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
That decision and subsequent authorities were considered in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[60]. Gummow and Hayne JJ observed in that case[61]:
"Anthony Hordern and the subsequent authorities have employed different terms to identify the relevant general principle of construction. These have included whether the two powers are the 'same power', or are with respect to the same subject matter, or whether the general power encroaches upon the subject matter exhaustively governed by the special power. However, what the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power." (footnotes omitted)
This approach has been described as one of "obvious good sense"[62]. It reflects a principle of wide application embodied in what Pearce and Geddes call the "difficult-to-translate maxim"[63], expressum facit cessare tacitum. Like all such principles, however, it must be applied subject to the particular text, context and purpose of the statute to be construed.
[58](1932) 47 CLR 1; [1932] HCA 9.
[59](1932) 47 CLR 1 at 7. See also R v Wallis; Ex parte Employers' Association of Wool Selling Brokers (1949) 78 CLR 529 at 550-551 per Dixon J; [1949] HCA 30; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678 per Mason J; [1979] HCA 26.
[60](2006) 228 CLR 566 at 589 [59] per Gummow and Hayne JJ, see also at 571-572 [2] per Gleeson CJ, 612 [149] per Heydon and Crennan JJ; [2006] HCA 50.
[61](2006) 228 CLR 566 at 589 [59].
[62]Pearce and Geddes, Statutory Interpretation in Australia, 7th ed (2011) at 145 [4.34].
[63]Statutory Interpretation in Australia, 7th ed (2011) at 144 [4.34].
The defendants pointed to the differences between the circumstances in which the powers conferred by ss 198 and 198A arise, the persons to whom they apply and the places in respect of which they may be used. Those differences, they argued, demonstrated that ss 198A and 198(2) are two sources of power to remove offshore entry persons, albeit they have similar practical consequences. Section 198(2), they submitted, requires that an offshore entry person, detained under s 189(3), be removed from Australia as soon as reasonably practicable if no investigation or assessment for the purposes of s 46A or s 195A is being undertaken. "Taking" an offshore entry person from Australia pursuant to s 198A(1) amounts to "removing" that person from Australia so as to satisfy the requirements of s 198(2).
The plaintiffs contended that the 2001 Excision Act and the 2001 Excision Consequential Provisions Act introduced a new system for dealing with offshore entry persons. They argued that the new system is a specific mechanism by which Australia seeks to meet its international obligations to offshore entry persons whose claims are not to be considered in this country. It differs from the mechanism of mandatory detention and removal under s 198. "Offshore entry persons" who are dealt with under s 198A will not have their claims to be refugees assessed in Australia but can be taken to another country where their claims will be assessed. Section 198A, it was submitted, is therefore not dependent upon or connected to s 198(2). Nor could it be connected to s 196 which requires "unlawful non-citizens" detained under s 189 to be kept in immigration detention until removed from Australia under ss 198 or 199 or deported or granted a visa.
The plaintiffs pointed to s 198A(4) and the cessation of immigration detention in relation to a person being dealt with under s 198A. They submitted that s 198A(4) is enlivened upon a decision being taken to consider an offshore entry person for removal from Australia under s 198A(1). Although such a person is not in immigration detention as defined in s 5(1), he or she can be detained as an incident of the power to take him or her to another country. The existence of that incidental power is indicated by the specific but non-exhaustive coercive powers conferred by s 198A(2). The cessation of immigration detention for persons being dealt with under s 198A(1) is consistent with the discretionary character of their detention as "offshore entry persons" under s 189(3).
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.
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).
The declaration criteria – jurisdictional facts or jurisdictional tasks?
The Solicitor-General for the Commonwealth submitted on behalf of the defendants that in making a declaration under s 198A(3)(a) the Minister is required to form, in good faith, an evaluative judgment that what he declares is true. He would not have exercised the power if he had misunderstood the matters set out in sub-pars (i)-(iv) and thereby asked the wrong question in forming his judgment. The plaintiffs' counsel contended, however, that the matters which are the subject of the declaration under s 198A(3) are jurisdictional facts. If any of the facts did not exist when the Minister made his declaration, the declaration would have been beyond power. Counsel pointed to a number of features of s 198A to support that submission, including the following:
.The absence of any reference to ministerial satisfaction or opinion in s 198A.
.The use of the word "declare" as an indication that Parliament intended the content of the declaration to be true as a matter of objective fact.
.The evident purpose of s 198A, which is to enable Australia's obligations under the Refugee Convention to be fulfilled by authorising the taking of a person to a country where that person's claims for protection under the Convention will be assessed and where that person will be given protection during that process, and afterwards if found to be a refugee.
.The nature of the task committed to the Minister under s 198A(3) which, it was said, is amenable to judicial review. This submission depended upon the contention, considered below, that s 198A(3) requires the Minister to make a determination about the legal protections afforded by a country to a person claiming refugee status. On this assumption, it was submitted that the relevant foreign law is simply a fact to be proved and there is nothing about that task which a court is unsuited to review.
.The fundamental rights of persons who are liable to be taken under s 198A(1) are at stake and are to be balanced against any inconvenience or other factor suggesting that the matters in s 198A(3)(a) are not jurisdictional facts.
The term "jurisdictional fact" applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion. The criterion may be "a complex of elements"[64]. When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court[65]. The decision-maker's assessment or evaluation may be an element of the criterion or it may be the criterion itself. Where a power is expressly conditioned upon the formation of a state of mind by the decision-maker, be it an opinion, belief, state of satisfaction or suspicion, the existence of the state of mind itself will constitute a jurisdictional fact[66]. If by necessary implication the power is conditioned upon the formation of an opinion or belief on the part of the decision-maker then the existence of that opinion or belief can also be viewed as a jurisdictional fact. The primary submission on the part of the plaintiffs, however, looked to the existence of the matters set out in s 198A(3)(a) as conditioning the Minister's power to make a declaration.
[64]Enfield City Corporation v Development Assessment Commission (2000) 199 CLR 135 at 148 [28] per Gleeson CJ, Gummow, Kirby and Hayne JJ; [2000] HCA 5.
[65]Australian Heritage Commission v Mount Isa Mines Ltd (1997) 187 CLR 297 at 303-304; [1997] HCA 10.
[66]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 651-654 [130]-[137] per Gummow J; [1999] HCA 21; Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 609 [183] per Gummow and Hayne JJ; [2002] HCA 54.
The question is one of statutory construction[67]. The considerations advanced by the plaintiffs cannot overcome the language of s 198A(3). Moreover, clear language would be needed to support the primary characterisation for which they contend. The Minister is empowered under s 198A(3) to make a declaration, the content of which is defined by that subsection. Putting to one side the nature and scope of the "protection" referred to in each of sub-pars (i) to (iv), their language indicates the need for ministerial evaluative judgment. As explained below, consideration of the domestic law of the proposed receiving country and its binding commitments and obligations under international law is mandated. That consideration will necessarily be an evaluative task. The words "provide", "access", "effective procedures" and "meets relevant human rights standards" all point in that direction. The function conferred upon the Minister is an executive function to be carried out according to law. Absent clear words, the subsection should not be construed as conferring upon courts the power to substitute their judgment for that of the Minister by characterising the matters in sub-pars (i) to (iv) as jurisdictional facts.
[67]Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55 at 64 [39]-[42] per Spigelman CJ; Woolworths Ltd v Pallas Newco Ltd (2004) 61 NSWLR 707 at 710 [6] per Spigelman CJ.
On the other hand, the mere fact that it is the Minister who makes the declaration is not enough to secure its validity. The Solicitor-General was correct when he submitted that the Minister is required to form, in good faith, an evaluative judgment based upon the matters set out in s 198A(3)(a), properly construed. That the Minister properly construe them is a necessary condition of the validity of his declaration. Properly construed, they define the content of the declaration which the Parliament has authorised. If the Minister were to proceed to make a declaration on the basis of a misconstrued criterion, he would be making a declaration not authorised by the Parliament. The misconstruction of the criterion would be a jurisdictional error. As McHugh, Gummow and Hayne JJ said in Minister for Immigration and Multicultural Affairs v Yusuf[68]:
"identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it."
A declaration under s 198A(3) affected by jurisdictional error is invalid. Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true. The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened.
[68](2001) 206 CLR 323 at 351 [82]; [2001] HCA 30.
The question that then arises is: Did the Minister properly construe the criteria under s 198A(3)(a)(i)-(iv)?
The temporal element of the Minister's judgment under s 198A(3)(a) is important. Each of the matters the subject of a declaration about a "specified country" is a statement about that country at the time of the declaration. It is, however, not only a snapshot of the present. The provision of access and protection and the meeting of human rights standards in providing protection must be judged by the Minister as more than merely transient. That is because the declaration enlivens a power to undertake future action: the taking of offshore entry persons to the specified country. The judgment required by the criteria is necessarily a judgment that the circumstance described by each of those criteria is a present and continuing circumstance. The temporal element points to the need for a legal framework to support the continuance of the matters the subject of the Minister's assessment.
The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is "keen to improve its treatment of refugees and asylum seekers". Nor could a declaration rest upon a belief that the government of the specified country has "made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers" or that it had "begun the process of improving the protection offered to such persons". Yet the Minister's affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.
The criteria in s 198A(3)(a) are dominated by the word "protection". It was submitted for the plaintiffs that the word is used in that context as a legal term of art to describe the rights to be accorded to a person who is, or who claims to be, a refugee under the Refugee Convention. At its heart it means protection from refoulement. The plaintiffs submitted that protective obligations applicable to refugees under the Refugee Convention also apply "until and unless a negative determination of [a] refugee's claim to protection is rendered."[69] The plaintiffs referred to a number of obligations said to be derived from the Refugee Convention and applicable to persons claiming to be refugees whose claims have not been assessed. They contended that asylum seekers should not be penalised for seeking protection. They should be provided with basic survival and dignity rights including rights to property, work and access to a social safety net. They should be provided with documentation and be given access to national courts to enforce their rights. They should not be the subject of discrimination and should be guaranteed religious freedom.
[69]Hathaway, The Rights of Refugees under International Law, (2005) at 278; UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1992) at 9.
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.
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[70]. In my opinion, the Minister was so required and did so err.
[70]Submissions for the defendants at [81].
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.
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[71]. 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.
[71]See eg Foster, "Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State", (2007) 28 Michigan Journal of International Law 223 at 243.
Conclusion
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.
In relation to M106, I agree for the reasons explained in the joint judgment[72] that he cannot be removed from Australia without the prior consent in writing of the Minister under the IGOC Act. I agree with the orders proposed in the joint judgment.
[72]Joint judgment at [137]-[147].
GUMMOW, HAYNE, CRENNAN AND BELL JJ. The plaintiff in each of these matters arrived by boat at Christmas Island on Thursday, 4 August 2011. Each is a citizen of Afghanistan. The plaintiff in the second matter is 16 years of age. He arrived unaccompanied by his parents, any other adult relative or any person having guardianship of him. It is convenient to refer to him as the "second plaintiff".
Upon arrival at Christmas Island, an officer of the Commonwealth, acting in reliance on s 189(3) of the Migration Act 1958 (Cth) ("the Act" or "the Migration Act"), detained the plaintiffs. On Sunday, 7 August 2011, an officer of the Department of Immigration and Citizenship determined that the plaintiff in the first matter, and a number of other adults who had arrived at Christmas Island at the same time, should be taken to Malaysia. On the same day, each plaintiff (and others) sought and obtained an interim order of this Court restraining the first defendant ("the Minister") from effecting their removal from Australia.
In accordance with the terms on which interim relief was granted, the plaintiffs and others commenced proceedings in the original jurisdiction of this Court seeking interlocutory and permanent relief restraining their removal from Australia and other relief directed to the Minister and the Commonwealth concerning the validity of steps taken or intended to be taken by the Minister to detain the plaintiffs and effect their being taken from Australia.
On 8 August 2011, interlocutory orders were made restraining the Minister from removing the plaintiffs from Australia until the hearing and determination of the proceedings or further order.
Having regard to the provisions of s 486B(4) of the Act[73], the proceedings instituted by the plaintiffs were subsequently reconstituted as a series of separate applications for an order to show cause, each of which named only one person as plaintiff. Subject to some qualifications which are not now material, the proceedings instituted by the present plaintiffs were referred for consideration by the Full Court. The two proceedings have been heard together and, apart from the need to consider separately the issues that are presented by the second plaintiff entering Australia as an unaccompanied minor, it will generally not be necessary to notice any distinction between the two proceedings.
[73]"The following are not permitted in or by a migration proceeding:
(a)representative or class actions;
(b)joinder of plaintiffs or applicants or addition of parties;
(c)a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described."
Section 198A(3)(a) addresses both the protection which is provided to an asylum-seeker or refugee, which includes protection against refoulement, by a country that might be the subject of a declaration, and the making of a determination of a claim to refugee status. Section 198A(3)(a)(i) clearly requires the latter, albeit that the determination is to be made in the declared country. It is not necessary presently to determine whether that constitutes strict adherence to the Convention. It is sufficient to observe that that criterion, like the others in s 198A(3)(a), is directed towards fulfilment of the content of the Convention obligations in question.
In 2001 further changes were made to the Migration Act. They included the excision of certain external territories of Australia, including the territory of Christmas Island, from Australia's migration zone[186]. Persons who entered Australia at places excised from the migration zone (as is here the case) became "offshore entry persons"[187] as part of what was called the "Pacific Strategy"[188]. It is well-known that some such persons were taken to the island of Nauru. It is an agreed fact in these proceedings that the Republic of Nauru was the subject of a declaration, said to have been made under s 198A(3)(a), by the then Minister for Immigration and Multicultural Affairs. However, the circumstances pertaining to that country have no bearing upon the construction of s 198A(3)(a) and its requirements.
[186]Migration Amendment (Excision from Migration Zone) Act 2001 (Cth).
[187]Section 5(1) of the Migration Act 1958 defines an offshore entry person as a person who:
"(a) entered Australia at an excised offshore place after the excision time for that offshore place; and
(b) became an unlawful non citizen because of that entry".
Section 5(1) of the Act also defines "entered", "entry", "excised offshore place", "excision time" and "unlawful non-citizen".
[188]Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 at 140-141 [32]; 272 ALR 14 at 22.
A further change made to the Migration Act in 2001 was the insertion of s 46A, by which an offshore entry person who is in Australia and an unlawful non-citizen was rendered unable to make a valid application for a protection visa[189], unless the Minister determined that the provision having that effect ought not apply[190]. As was observed in Plaintiff M61, the Minister retained the power to give that consideration[191]. The changes effected, by the insertion of s 46A and s 198A, were to be seen as reflecting a legislative intention to adhere to an acceptance of Australia's obligations under the Convention[192]. These observations do not convey that s 198A is to be construed by incorporating Convention obligations within it, as the Minister pointed out in submissions. The intention spoken of is gleaned by the ordinary processes of statutory construction.
[189]Migration Act 1958, s 46A(1).
[190]Migration Act 1958, s 46A(2).
[191]Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 at 140-141 [32]; 272 ALR 14 at 23.
[192]Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 at 141 [34]; 272 ALR 14 at 23.
Section 198(2) – an alternative source for removal?
Before turning to the requirements of s 198A(3)(a) and the making of the declaration, it is necessary to consider the submission by the Minister that the removal of the plaintiffs could be effected under s 198(2) without resort to s 198A(1).
Section 198(2) was considered in Plaintiff M61. It is in general terms and provides, relevantly, that an officer "must remove as soon as reasonably practicable an unlawful non-citizen", to whom s 193(1)(a)(i), (ii) or (iii) or s 193(1)(b), (c) or (d) applies, who has not been immigration cleared and who has not made a valid application for a substantive visa. Section 193(1)(c) applies to the plaintiffs because they are detained under s 189(3) (or at the least there is no issue between the parties about their detention pursuant to s 189(3)).
It was said in Plaintiff M61 that the obligation to remove "as soon as reasonably practicable" in s 198(2) can be understood to accommodate the consideration by the Minister whether to exercise the powers given to him by s 46A (or s 195A, which allows the Minister to grant a visa whether an unlawful non-citizen applies or not)[193]. The additional factor here in play is that the Minister gave a direction, on 25 July 2011, to the Secretary of his Department that no processing of asylum claims is to occur in relation to offshore entry persons who arrived after 25 July 2011 and that:
"I do not wish to consider exercising any of my powers under the Migration Act1958 to give such individuals access to visas, in particular my powers under s 46A or s 195A. It is my expectation that such individuals will be taken to Christmas Island and removed to Malaysia in accordance with the Arrangement, with any asylum claims being assessed in that country."
[193]Plaintiff M61/2010E v The Commonwealth (2010) 85 ALJR 133 at 141 [35], 147 [71]; 272 ALR 14 at 23, 31.
It was, however, pointed out by the Minister in submissions that the direction did not preclude any further consideration by the Minister as to whether to exercise his discretion under ss 46A or 195A. The general direction was qualified by the words "[u]ntil further notice".
The plaintiffs argued that s 198(2) cannot apply because of the terms of s 198A(4). Section 198A(4) provides that an offshore entry person "who is being dealt with under this section" is taken not to be in immigration detention. Such detention is a prerequisite to removal under s 198(2). The argument does not, however, address the question which arises if the plaintiff's contention, that the declaration was not made in the exercise of the powers given by s 198A(3), is correct. In that circumstance it could not be said that the person "is being dealt with" under s 198A. Section 198A(4) could not be said to apply where acts in connection with the taking of the person are unlawful and ineffective. In that situation the person remains in immigration detention.
The Minister's position with respect to the removal of the plaintiffs pursuant to s 198(2), if the declaration is not valid, may be stated shortly. It is that there is an obligation expressed in s 198(2) to remove persons to whom it refers and that there is no impediment to that obligation being fulfilled. In particular, the removal of the plaintiffs cannot be held up by the imposition of an obligation upon the Minister to consider removing the impediment created by s 46A(1) so as to permit them to apply for a protection visa, in order that their status as refugees might be assessed. To do so, it is submitted, would impermissibly involve reading an international law obligation into domestic law when the domestic law makes plain that no such obligation is accepted. The Migration Act may give the Minister power to provide a procedure for the assessment of the plaintiffs' refugee status, as Plaintiff M61 recognises, but it does not impose any duty upon him to do so, the Minister submitted.
Section 198(2) does not refer to any particular country to which a person may be removed. The use of the powers in s 198(2) to remove a person to another country, without an assessment of whether that country is safe and without a determination of whether the person is a refugee, would appear to place Australia in breach of its obligations under the Convention. In this regard it may be observed that a Contracting State contemplating the removal of an asylum-seeker to another country is obliged to undertake a proper assessment of the country to which that person is to be sent and the protections it affords[194].
[194]See Lauterpacht and Bethlehem, "The scope and content of the principle of non‑refoulement: Opinion", in Feller, Türk and Nicholson (eds), Refugee Protection in International Law: UNHCR's Global Consultations on International Protection, (2003) 87 at 122 [116].
An assessment is provided for in s 198A(3)(a), albeit that the determination as to refugee status is left to the country the subject of the declaration. Section 198A(3)(a) appears to be directed to compliance with Australia's Convention obligations of non-refoulement and determination of refugee status. So much is apparent by its reference to the protection of asylum-seekers and refugees and to the provision of access to effective procedures to determine refugee status. It may be inferred from s 198A(3)(a) that it is not intended to remove any person where that person's status as a refugee is undetermined. Even then it is intended to do so only where the country declared will provide the necessary protection, including against refoulement.
The power under s 198A(1), like that in s 198(2), is directed to an "officer"[195]. It is to remove a person to another country. The use of the verb "take" in s 198A(1) does not indicate a power of a different kind. Section 198(2) would be understood to carry with it such powers as are necessary to effect a removal. In the context of s 198A such powers are found in s 198A(2). The difference between the two provisions is that s 198A(1) requires that a declaration be made, by reference to the criteria in s 198A(3)(a), before the power can be exercised.
[195]Defined by s 5(1) of the Migration Act 1958.
In Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia[196] it was said that:
"When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power."
This reflects a general principle to be applied to the construction of a statute. In Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom[197] it was explained that different terms have been used to identify the principle and that what the cases reveal is that:
"it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above the ambit of the restricted power was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions."
[196](1932) 47 CLR 1 at 7; [1932] HCA 9; see also Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 678; [1979] HCA 26.
[197](2006) 228 CLR 566 at 589 [59]; [2006] HCA 50.
Here there is but one power, the power of removal. Section 198(2) expresses that general power. The particular power given by s 198A(1) would appear to fall within the description of the general power, but it is plain that s 198A(1) is directed to a particular set of circumstances, where the country to which an asylum-seeker is yet to be taken is to be assessed as to whether it meets the criteria stated in s 198A(3)(a). The Minister must be satisfied as to this and that the country will provide for the determination of refugee status and provide protection to asylum-seekers and refugees. It could not have been intended that s 198(2) was to be a source of power to effect the removal of asylum-seekers to a country without any assessment of the protections that would be provided to such persons by that country. To do so would involve Australia in a breach of its obligations under the Convention and it is these obligations to which s 198A(3)(a) is addressed.
This construction of ss 198A(1) and 198(2) is not affected by the circumstance that the power of removal under s 198(2) may be exercised where no determination of an application for a protection visa has been made. The Minister refers in this regard to the Subdivisions earlier discussed, which, it will be recalled, relate to countries which are taken to be safe third countries and in which countries some asylum-seekers may have a right of entry and residence. A determination that an asylum-seeker is a person to whom the Subdivisions apply would appear to amount to a rejection of their claim to Australia's protection obligations, as explained earlier in these reasons[198]. The Subdivisions are not directed to the situation with which s 198A(3) is concerned.
[198]At [223] of these reasons.
It follows that removal under s 198(2) is not an option, unless each plaintiff's status as a refugee is considered and rejected. Such assessments as have been undertaken of the plaintiffs, preparatory to their removal, were not determinative of that status. They were not directed to the question whether Australia owed protection obligations to them as refugees, such as would be considered in connection with an application for a protection visa.
The requirements of s 198A(3)(a)
Section 198A(3)(a) has the effect of shifting some of the responsibilities undertaken by Australia under the Convention to another country. Its evident concern is that Australia's obligations under the Convention are not breached in that process. Its terms contemplate that a country specified in the declaration will provide some of that which Australia would have provided had the asylum-seeker remained in its territory. Section 198A(3)(a) requires, at the least, that the country the subject of a declaration provide for a determination of the removed asylum-seeker's refugee status (sub-pars (i) and (ii)) and provide for that person's protection whilst an asylum-seeker (sub-par (ii)), and as a refugee (sub-par (iii)), if that status is accorded. Because that person is an asylum-seeker or refugee, the protection spoken of must, at the least, be protection against persecution and refoulement. In providing that protection the country specified must meet "relevant" human rights standards (sub‑par (iv)), which may be taken to refer to standards required by international law.
The direct language used in s 198A(3)(a), that "a specified country … provides protection" to asylum-seekers and refugees and "a specified country … meets relevant human rights standards in providing that protection" clearly enough identifies the country proposed to be declared as the provider of the protections. A requirement that a country to which an offshore entry person may be taken under s 198A(1) provide such protections is explicable having regard to Australia's protection obligations under the Convention. If asylum-seekers are removed from Australia to another country, s 198A(3) has the effect that at least the provisions thereby required to be made, which will meet some of Australia's obligations, are made by the State to which an onshore entry person may be taken.
Sub-paragraph (i) of s 198A(3)(a) cannot be taken merely to require that a country ensure that an asylum-seeker has access to an assessment of refugee status undertaken by a non-government agency. Such a construction would not be consistent with the language of the balance of par (a), which clearly contemplates the determination of refugee status by the country the subject of a declaration. Whilst it is known that the UNHCR conducts such assessments, sub-par (i) is not limited in its terms to a recognised body. If it is not taken to refer to the determination of refugee status by the government in question, it would leave a matter of great importance to be determined by any means. The requirement that procedures be "effective"[199] would be an insufficient safeguard.
[199]Migration Act 1958, s 198A(3)(a)(i).
The requirement that the declared country itself undertake the determination of refugee status has an important consequence, namely, that it is bound to that outcome. It necessarily implies that the country recognises the status of refugee and gives effect to it. The requirement is consistent with the characteristics of a country to which s 198A(3)(a) refers. It refers to a country which recognises the status of refugees, for that country is to provide protection to persons claiming that status or who are determined to have that status. The objective of the provision, that protection be provided to asylum-seekers or refugees, can only be achieved if the country declared recognises the status of refugee and provides protection against refoulement and persecution. It is to be inferred, by reference to Australia's obligations under the Convention to which s 198A(3) is directed, that it is intended that the Minister have this level of assurance before a declaration is made.
The recognition and protection of refugees by a country is effected by its laws. It is a country's laws to which regard is had by other countries in determining the extent to which recognition and protection of refugees might be provided. In terms of ordinary language it is difficult to see how it can be said that a country provides protection, in a concrete sense, if its laws contain no such provisions. It may not be necessary that a country be a party to the Convention in order that it recognise and protect refugees, although it is more likely that a country's domestic laws will provide for that recognition and protection if they are a Contracting State. Section 198A(3)(a) must be taken to require that a country "provide" the necessary recognition and protection pursuant to its laws. It is by reference to its laws that a country may be taken to be under an obligation to provide that recognition and protection.
A country's practices which affect refugees may also be relevant to the enquiry under s 198A(3)(a). The Minister may, in accordance with s 198A(3)(a), scrutinise what is done in practice to ensure that the country's laws are carried into effect and to ensure that the country can be relied upon to recognise refugee status and provide the necessary protections[200]. Such an assessment may extend to whether the country meets relevant human rights standards whilst providing asylum-seekers and refugees with protection against persecution and non-refoulement, as well as to whether the country's laws regarding refugees are carried into effect. Such assessments may be based upon information from a number of sources and require the formation of an opinion on the part of the Minister. If the country's laws providing for recognition and protection of refugees are not carried into effect, the Minister may well conclude that the necessary protections are not in fact provided as required by s 198A(3)(a). However, a positive assessment of the practical provisions which are made for refugees in a country cannot replace the requirement that the country has obliged itself, through its laws, to provide the necessary recognition and protection. That legal obligation is the minimum requirement of a country which may continue to fulfil the content of the Convention obligations earlier mentioned, of the protection of refugees from non-refoulement and from persecution.
[200]Hathaway, The Rights of Refugees under International Law, (2005) at 326-327.
This construction of s 198A(3)(a) most closely accords with the fulfilment of Australia's Convention obligations and it is to be preferred to one which does not.
In Polites v The Commonwealth[201] it was accepted that a statute is to be interpreted and applied, so far as its language permits, so that it is in conformity, and not in conflict, with established rules of international law[202]. In Minister for Immigration and Ethnic Affairs v Teoh[203], Mason CJ and Deane J took the proposition to apply to favour the construction of a statute which is in conformity, and not in conflict, with Australia's international obligations, at least so far as the language of the legislation permits. The ambiguity, to which such a construction was relevant, should not be viewed narrowly, in their Honours' view. Their Honours went on to say[204]:
"So expressed, the principle is no more than a canon of construction and does not import the terms of the treaty or convention into our municipal law as a source of individual rights and obligations."
The rule of construction stated in Teoh has been applied in Kartinyeri v The Commonwealth[205], Plaintiff S157/2002 v The Commonwealth[206], and Coleman v Power[207]. However, if it is not possible to construe a statute conformably with international law rules, the provisions of the statute must be enforced even if they amount to a contravention of accepted principles of international law[208]. Such a position is not reached after construing s 198A(3)(a).
[201](1945) 70 CLR 60 at 68-69 per Latham CJ (citing Maxwell on the Interpretation of Statutes, 8th ed (1937) at 130), 77 per Dixon J and 81 per Williams J; [1945] HCA 3.
[202]A similar approach had been applied in Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363 per O'Connor J (citing Maxwell on the Interpretation of Statutes, 3rd ed (1896) at 200); [1908] HCA 95.
[203](1995) 183 CLR 273 at 287; [1995] HCA 20.
[204]Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287-288. See also Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 33 [100]; [2003] HCA 6.
[205](1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ; [1998] HCA 22.
[206](2003) 211 CLR 476 at 492 [29] fn 64 per Gleeson CJ; [2003] HCA 2.
[207](2004) 220 CLR 1 at 27-28 [19] per Gleeson CJ; [2004] HCA 39.
[208]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ, citing Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 204; [1982] HCA 27.
Exercise of the power under s 198A(3)(a)?
The Minister was provided with information to assist his assessment under s 198A(3)(a) from three sources: advice from the Department of Foreign Affairs and Trade ("DFAT"); communications from the UNHCR; and advice from DIAC concerning the Arrangement, about which the Minister, in any event, had personal knowledge. The Minister's attention was directed, by a DIAC submission ("the DIAC Submission")[209], to the criteria and he was advised that he was required to satisfy himself of those matters.
[209]Attached to this document was the DFAT advice referred to above.
That information did not confirm the existence of the necessary facts concerning Malaysia. As DFAT advised, Malaysia is not a party to the Convention. It does not recognise, or provide for the recognition of, refugees in its domestic law. It therefore does not provide any procedures for the determination of claims to refugee status. DFAT's advice was that Malaysia generally allowed the UNHCR access to persons claiming that status. Malaysia does not bind itself, in its immigration legislation, to non-refoulement. The DFAT advice made mention of forcible deportations of asylum-seekers which had occurred in Malaysia, although it said that there were "credible indications" that they had ceased in mid-2009. It mentioned the prosecution of illegal immigrants, which would include asylum-seekers who had entered Malaysia without any permits (as the plaintiffs had done).
The communications from the UNHCR were not addressed to the questions arising under s 198A(3)(a). They merely stated its position with respect to the Arrangement, namely, that it preferred the asylum-seeker in question to be processed in Australia, consistently with "general practice", and that its position respecting the Arrangement was conditional upon proper protection and vulnerability safeguards determining the pre-removal assessment process in Australia being put in place.
The Arrangement may be seen to address some issues which are relevant to asylum-seekers and in respect of which Malaysian domestic law either provides no accommodation or might be exercised against asylum-seekers as illegal entrants. By the Arrangement the Government of Malaysia committed itself, among other things, to provide Transferees with the opportunity to have their claims considered by the UNHCR (cl 10(2)(a)), to respect the principle of non-refoulement (cl 10(2)(a)) and to facilitate the presence of Transferees while their claims were being considered and, where they were found to be refugees, during any period thereafter while they awaited resettlement (cl 10(3)(a)). The commitment spoken of is to be understood in the sense referred to in the Arrangement itself, which is to say as a political but not a binding, legal, commitment (cl 16).
In the annexure to the Arrangement it was said that Transferees claiming asylum would be entitled to remain in Malaysia under an exemption order (cl 2.2.2(b)). It is to be inferred from the parties' Agreed Statement of Facts that such an order might operate to prevent persons, such as the plaintiffs, from being prosecuted for immigration offences committed by their earlier entry into Malaysia, en-route to Indonesia and Australia, without the necessary permits. The order was not in place at the time the declaration was made, but was made shortly thereafter.
In his affidavit the Minister said that he took into account "the material in the [DIAC Submission], and in particular, the advice from DFAT which reassured me that Malaysia did provide basic support and protection to asylum seekers". The Minister said that he also took into account his "own knowledge of Malaysia's commitment to improving its processes for dealing with asylum seekers" and his knowledge of matters gleaned during the course of negotiations in connection with the Arrangement. The Minister said that he believed the Government of Malaysia had made:
"a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons. It was also clear to me that the Malaysian government was enthusiastic about using the transfer of 800 persons under the proposed arrangement as a kind of 'pilot' for their new approach to the treatment of asylum seekers generally."
He said that, in making the declaration:
"I relied upon the Arrangement and associated Operational Guidelines as supporting the view I had formed that Malaysia was committed to a new approach to dealing with refugees. To my mind, the willingness of the Malaysian government to enter into the Arrangement was an indication of the seriousness of its commitment."
Neither the bona fides of the parties to the Arrangement nor the commitment of them to the matters contained in it is in question in these proceedings. It remains the case that Malaysia does not have laws which recognise and protect refugees from refoulement and persecution. Although the Arrangement attempted to address some of the problems which face asylum-seekers in that country, it could not alter that state of affairs.
The facts necessary for the making of a declaration under s 198A(3)(a) did not exist. There was no power to make the declaration. It is invalid.
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[210].
[210]Craig v South Australia (1995) 184 CLR 163 at 177-180; [1995] HCA 58; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351 [82]; [2001] HCA 30; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 574 [72]; [2010] HCA 1.
The Minister's guardianship of Plaintiff M106
It is not strictly necessary to deal with the additional limb of the argument put for Plaintiff M106. It was that by reason of the prohibition contained in s 6A of the Immigration (Guardianship of Children) Act 1946 (Cth) against a "non‑citizen child" leaving Australia without the consent of his or her guardian, any removal of him from Australia without that consent would be unlawful. The Minister is Plaintiff M106's guardian under that Act and has not given such consent. I agree that Plaintiff M106's removal from Australia absent that consent would be unlawful, for the reasons given in the joint judgment.
Conclusion and orders
There was no power to make the declaration of 25 July 2011. Because the declaration is invalid, there is no power to remove the plaintiffs to Malaysia. Any attempt to do so would be unlawful. In the case of Plaintiff M106, his removal from Australia to any country is also unlawful absent the consent of the Minister in his capacity as guardian of Plaintiff M106.
I agree with the orders proposed in the joint judgment.
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