Plaintiff M70/2011 v Minister for Immigration and Citizenship

This case concerned the plaintiffs, who were described as "unlawful non-citizens" and "offshore entry persons" under the *Migration Act 1958* (Cth) and were detained in Australia. Each plaintiff claimed asylum under the Refugees Convention. The Minister for Immigration and Citizenship had declared Malaysia a "declared country" under section 198A(3) of the Act, which allows for the removal of offshore entry persons to such a country. The High Court of Australia was required to determine the validity of this declaration and the lawfulness of removing the plaintiffs to Malaysia.

The central legal issues before the Court were whether section 198A of the *Migration Act* was the sole source of power to remove the plaintiffs from Australia when their asylum claims were not assessed in Australia, and whether section 198(2) of the Act provided an alternative power for their removal. Further, the Court had to consider whether the criteria set out in section 198A(3)(a) for declaring a country were jurisdictional facts, and whether the Minister's declaration that Malaysia met these criteria was valid. For the second plaintiff, who was an unaccompanied minor, the Court also had to determine if his removal to another country was lawful given his status as a non-citizen child under the *Immigration (Guardianship of Children) Act 1946* (Cth).

The Court reasoned that the matters specified in section 198A(3)(a) were not merely matters for the Minister's subjective satisfaction but were jurisdictional facts. This meant that the Minister's power to declare a country was conditioned on the objective existence of the criteria outlined in the subsection, namely that the country provides access to effective asylum assessment procedures, protection pending determination, protection for refugees, and meets relevant human rights standards. The Court found that the Minister's declaration concerning Malaysia was made without power and was therefore invalid because the Minister had failed to properly consider whether Malaysia actually provided these protections, rather than simply assuming it did based on its laws or international obligations. The Court also noted that for the second plaintiff, removal from Australia required the written consent of the Minister under section 6A of the *Immigration (Guardianship of Children) Act*, which had not been obtained.

Consequently, the High Court declared that the Minister's declaration of Malaysia as a declared country under section 198A(3) was invalid. The Court ordered that the Minister, by his officers or otherwise, be restrained from taking the plaintiffs from Australia to Malaysia. In relation to the second plaintiff, an additional order restrained his removal from Australia without the written consent of the Minister under section 6A(1) of the *Immigration (Guardianship of Children) Act*. The defendants were ordered to pay the plaintiffs' costs.