Gummow, Hayne, Crennan, BellJJ the Minister's declaration about Malaysia was invalid, as Malaysia didn't meet the s198A(3)'s criteria of being a country legally bound to process and protect asylum seekers and refugees
FrenchCJ the Minister's requisite opinion for the declaration; that being Malaysia was a country that met the s198(3) criteria, was formed on an incorrect understanding of the section's requirements. Ergo it was tainted with jurisdictional error
Plaintiff M70 is a decision by the High Court of Australia.[1] The lawsuit concerned an injunction sought by multiple Afghanasylum seekers against immigration ministerChris Bowen. The injunction was to prevent Bowen from deporting the plaintiffs to Malaysia, pursuant to s198A of the Migration Act (a provision since repealed). The purpose of the deportation was to avoid their asylum application from being assessed by Australia.[2]
The court decided that the Commonwealth government did not have lawful authority to force resettlement of the plaintiffs to Malaysia.[1] The Migration Act's s198A deportation power required a declaration be first made by the Minister about the recipient country's refugee protections; and it was found this declaration had been made invalidly. A majority found that Malaysia was unable to be declared a safe country for asylum seekers pursuant to s198A, due to Malaysia not being bound to protect refugees either at domestic or international law. As Bowen's declaration was legally invalid, it followed he lacked power to order their deportation.
Politically, the case was a major defeat for the Gillard Labor government. It had the effect of dismantling the 'Malaysian solution', an important plank within the government's policy toward asylum seekers. It was also a major political and diplomatic embarrassment for the government.[2] A year after the decision, the Gillard Labor Government passed legislation re-establishing offshore processing centres on Nauru and in Papua New Guinea.[3]
Facts
The plaintiffs had traveled from Afghanistan to Christmas Island. M70 was an adult, whereas M106 was an unaccompanied minor. As the plaintiffs had arrived without visas, they held the status of being 'unlawful non-citizens' within the meaning of the Migration Act. Christmas Island was designated under the act as an 'excised offshore place'; and as a consequence of both these factors the plaintiffs were detained at the discretion of an immigration official under s189(3) of the Act.[4]
The plaintiffs were additionally designated with the status of being 'offshore entry persons' under the act, due to having entered Australia at Christmas Island while being unlawful non-citizens. For this reason, neither plaintiff was able to make a valid application for a visa unless the Immigration Minister first decided that it would be in the public interest to let them do so. He did not consider that question, and had no legal duty to do so.[4]
In July 2011 the Commonwealth made an arrangement with the Malaysian government. The terms of the arrangement were that the Commonwealth would transfer 800 asylum seekers whom had irregularly arrived by sea to Malaysia, where their claims for refugee protection would be carried out by the UN High Commissioner for Refugees.[5] In return Australia would accept from Malaysia 4,000 refugees for domestic resettlement.
s198(2) of the act imposed a duty on officers to remove those subject to s189(3) detention as soon as possible. Section 198A granted a power to deport 'offshore entry persons'. s198A(3) provided that a Minister was empowered to make a written declaration that a specified country: (i) provided access to asylum seeker claims; (ii) would provide protections for asylum seekers pending their claim's assessment; (iii) protection would be provided to those given refugee status, and; (iv) relevant human rights standards would be met in providing that protection. s198A(1) & (2) enabled 'an officer to take an offshore entry person from Australia to a country in respect of which a s198A(3) declaration was in force', authorizing reasonable and necessary force in pursuance of their deportation.
On 25 July 2011, the Minster had used the section to make a declaration that Malaysia was such a country.[6]
In August 2011, an immigration officer determined that M70 would be removed from Australia pursuant to the arrangement, and M106 would be removed once support services for unaccompanied members was established. Neither plaintiff would go to Malaysia voluntarily.[5]
The plaintiffs sought to restrain the Commonwealth from deporting them to Malaysia. Their arguments were that:
The only source of power to take them from Australia was s198A of the Act;
That power is conditioned upon a valid declaration having been made under s198A(3) of the Act
The declaration about Malaysia made on 25 July 2011 was not validly made because the four criteria were jurisdictional facts which did not exist; or alternatively, that they were facts of which the Minister had to be satisfied of before making a declaration, and he was not satisfied because he had misconstrued the criteria.
The Commonwealth's argument was that the criteria under s198A(3) of the act were not jurisdictional facts. It contended instead that the Minister was merely required to form, in good faith, an evaluation of Malaysia which he would then declare to be true.[7]
Judgment
Gummow, Hayne, Crennan & Bell JJ
The majority accepted the plaintiff's construction of the act, finding that s198A(3) required certain jurisdictional facts to be established. It was not enough for the Minister to have a good faith subjective opinion about the criteria.[8]
They found that access and protections to which the s198A(3)(i) - (iii) criteria referred; 'needed to be provided as a matter of legal obligation'.[9] Further, they were understood to refer to access and protections mirroring those that Australia had undertaken by signing onto the Refugees Convention and Refugees Protocol.[10] With respect to s198A(3)(i); It was not enough for Malaysia to have allowed the UNHCR to undertake refugee protection assessment procedures; without providing for those procedures at domestic law or being bound at international law to do so.[11] Similarly, Malaysia could not be found to provide protections of the kind described in (ii) or (iii) unless its domestic law expressly dealt with refugees, or was internationally obliged to protect refugees. Australia's arrangement with Malaysia didn't oblige Malaysia at international law to provide any of those rights, (as it was not a treaty) and additionally there wasn't even a provision within the arrangement ensuring that those rights would be provided.[12]
'As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii). The Minister's conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration. The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.' - Gummow, Hayne, Crennan & Bell JJ
With respect to plaintiff M106, the majority found that his deportation was additionally prevented by the 'IGOC Act'; as it restrained his deportation unless prior written consent was first obtained from his guardian, the minister. Consent had not been provided.
Chief Justice French
Chief Justice French differed in his construction of the act from the majority, in that he did not accept the plaintiff's statutory construction that the section required the establishment of certain jurisdictional facts. Rather, the decision maker's evaluative judgement was itself the jurisdictional fact.[14] However, a mandatory consideration for that evaluation, was the domestic law of the proposed receiving country and its binding commitments under international law.[14] This evaluation was required to be done with respect to the section's four criteria, as they ought be properly understood.[15]
He then found that in making his declaration, the Minister was obligation to consider the domestic laws of the specified country, and the international laws to which it had bound itself. French CJ found that the words used in the act's criteria such as 'provides access ... to effective procedures', 'protection', and 'relevant human rights standards', were indicative of a requirement to assess the country's relevant laws. It was then found that based upon the information upon which the Minister had acted, and on his affidavit; it was clear that he did not look to Malaysia's legal obligations either domestically, or internationally; as a basis for his declaration. No evidence was provided showing that the Minister had paid attention to the legal fragility of an 'exemption order' under the Malaysian Immigration Act, or to other associated legal risks to transferees. Instead, his decision had been informed by conversations with his Malaysian ministerial counterpart, and observations by DFAT about contemporary practices of Malaysia toward asylum seekers.[16]
For that reason French CJ found the Minister's s198A(3) declaration was tainted by jurisdictional error, and therefore found invalid. As the declaration was invalid, no power existed for the Commonwealth to deport the plaintiffs to Malaysia via s198A(1). Nor would it be possible for the plaintiffs to be removed to Malaysia under s198(2), without an officer first making an assessment as to whether the person was someone to whom Australia owed protection obligations.[17]
Justice Kiefel
Like the majority, Kiefel J found that s198A(3)(a) had the effect of shifting some of Australia's responsibilities under the refugee convention to another country. She found its 'evident concern' was that Australia's obligations under the convention were not breached in that process. Further, she found that s198A(3)(a)(i) referred to a country that recognized the status of refugees; and didn't merely require that the country ensure that an asylum-seeker have access to an assessment of refugee status by an NGO.[18] That requirement had the consequence of implying that the country recognises the status of refugees and gives effect to the convention.[19] Kiefel found that such recognition and protection is put into effect by laws, and so the minister's decision was to be made with reference to those laws.[20] A practical assessment of a country's practices regarding refugees, could not replace the requirement that the country oblige itself through law, to provide necessary recognition and protection; in order to be subject to the act's declaration.[21]
As Malaysia did not have laws recognizing and protecting refugees from refoulment and persecution, the facts necessary for making a declaration under s198A(3)(a) did not exist, and the declaration found invalid.[22] Kiefel found additionally that the Minister had misunderstood the nature of the inquiry posed by s198A(3)(a), and therefore had made the decision in jurisdictional error.[23] That being the case, it followed there was no power to remove the plaintiffs to Malaysia.[24]
Justice Heydon (dissent)
Heydon J found that the s198A(3)(a) was limited to practical conditions in Malaysia, not matters of legal obligation.[25] With regard to the IGOC Act constraining M106's deportation; Heydon found that the act did not require written consent. He further found that he had 'shown by his conduct that he consents to the taking of the second plaintiff from Australia ... it is clear that the Minister most strongly consents to the second plaintiff's departure, and to speak in that fashion is to speak euphemistically.'[26] For these reasons among others, Heydon supported the dismissal of both appeals.
Aftermath
The minister Chris Bowen described the decision as 'profoundly disappointing'. He defended the Government's construction of the Immigration Act, saying that the High Court had 'applied a new test to how protections should be demonstrated'.[2] The result effectively sunk Labor's 'Malaysian solution' scheme, as no valid declaration could be made unless Malaysia would first sign up to the UN Refugee Convention; and there was no prospect of that happening at the time. Legislative amendment was not an option to rescue the scheme, as a government attempt to remove the Migration Act's s198A(3) constraints (replacing it with a sole 'national interest' criterion for a declaration) failed to pass the lower house.[27] That amendment also sought to override the IGOC Act protection that had been found applicable to the unaccompanied minor, M106.[27] The Greens at the time held the balance of power in the lower house.[2]
Controversially, Prime Minister Julia Gillard commented on the decision by saying that the High Court had 'missed an opportunity' in its rejection of the deal. The PM also accused Chief Justice French of having made a ruling inconsistent with his prior judgements.[28] She was criticised for those comments by the Law Council which issued a statement rebuking the Prime Minister saying 'it is highly inappropriate to single-out the chief justice for particular criticism ... his honour was one of six judges in the majority and the legal principles established by the case are very clear.'[28] Gillard's comments were defended by professor George Williams as being that of a 'disappointed litigant' with a right to respond to the written judgement.[28]
The decision was praised by both the Liberal Party as well as the Australian Greens. The opposition shadow immigration minister at the time, Scott Morrison, described the judgement as 'another policy failure by an incompetent government' he added;[2]
'I've been to Malaysia ... It was clear to me that the protections the Minister boldly claimed existed, simply didn't exist. ... He's been found out by the High Court, and as a result the Government's asylum and border policy is a complete and utter mess.'
Greens Senator Sarah Hanson-Young said that the decision had vindicated her party's position on the deal.[2]
There isn't any publicly available information as to the plaintiff's reaction to the decision, although 'clapping and cheering' was heard from inside the detention center following the result according to ABC News journalist Jane Norman.[2] When Matthew Albert, the lead counsel for the plaintiff was asked at an LIV forum what would happen following the decision; he told the forum that he had the 'sombre' task of telling his clients that while they would not be deported to Malaysia, they would still be held in indefinite detention until the Government decided upon a new course of action.[28] What eventually happened of the persons M70 and M106 is unknown to the general public.
Julian Burnside QC (also at the LIV forum) commented on the decision by remarking it was 'safe to say that offshore processing is no longer an option for the Government'.[28] In actuality, the Gillard Labor government instead responded the following year by reopening Manus island offshore detention facilities; despite those facilities having been shut down by the first Rudd Government in 2008. After Rudd regained the office of Prime Minister in a contest with Gillard, the reopening of the Manus offshore detention facility led in turn to what became known as the 'PNG solution'; and Labor's stated policy of preventing any asylum seeker arriving in Australia by boat from ever being domestically settled as refugees. Under that policy, (maintained by the subsequent Abbott Government), genuine refugees would be offered asylum in Papua New Guinea; while non-genuine asylum seekers would be repatriated, moved to a third country, or remain in indefinite detention.
The president of the Malaysian Bar association welcomed the decision, writing in a statement that it was a 'reminder to Malaysia of the importance of being a signatory to the Refugee convention and its protocol'.[28]
An asylum seeker is a person who fled their home country because of war or other factors harming them or their family, enters another country and applies for asylum, i.e. international protection, in this other country. An asylum seeker is an immigrant who was affected by forced displacement and may become considered a refugee. The terms asylum seeker and refugee are often confused.
The Pacific Solution is the name given to the Government of Australia policy of transporting asylum seekers to detention centres on island nations in the Pacific Ocean, rather than allowing them to land on the Australian mainland. Initially implemented from 2001 to 2007, it had bipartisan support from the Coalition and Labor opposition at the time. The Pacific Solution consisted of three central strategies: thousands of islands were excised from Australia's migration zone or Australian territory, the Australian Defence Force commenced Operation Relex to intercept vessels carrying asylum seekers and the asylum seekers were removed to detention centres in Nauru and on Manus Island, Papua New Guinea, while their refugee status was determined. A number of pieces of legislation enabled this policy. The policy was developed by the Howard Government in response to the Tampa affair in August 2001 and the Children Overboard affair, and was implemented by then Australian Immigration Minister Philip Ruddock on 28 September before the 2001 federal election of 24 November.
The Australian migration zone is a legal device created by the Australian government for the purpose of Australia's visa policy and immigration policy, as the territory in which Australia’s visa policy applies. The Australian migration zone covers such Australian controlled territories as the government may determine. Prior to 2001, the Australian migration zone consisted of the mainland, and some external territories. Norfolk Island, for example, was not part of the Australian migration zone until 2016. Under Australia’s universal visa policy, a non-citizen must hold an Australian visa within the Australian migration zone. Without such a visa, or a bridging visa, the non-citizen is an unlawful non-citizen and treated as an “unauthorised arrival". However, the main impact of the migration zone is that unauthorised arrivals outside the zone have very limited access for review by Australian courts.
Germany is the second most popular migration destination in the world, after the United States of America. By UN estimates, as of 2017, 12,165,083 people living in Germany are immigrants or their descendants, or about 14.8% of the German population. The majority of immigrants in Germany are from Eastern Europe, Southern Europe and Middle East.
Australian administrative law defines the extent of the powers and responsibilities held by administrative agencies of Australian governments. It is basically a common law system, with an increasing statutory overlay that has shifted its focus toward codified judicial review and to tribunals with extensive jurisdiction.
Canadian immigration and refugee law concerns the area of law related to the admission of foreign nationals into Canada, their rights and responsibilities once admitted, and the conditions of their removal. The primary law on these matters is in the Immigration and Refugee Protection Act, whose goals include economic growth, family reunification, and compliance with humanitarian treaties.
Ruddock v Vadarlis was an Australian court case decided in the Federal Court of Australia on 18 September 2001. It concerned the actions of the Government of Australia in preventing asylum seekers aboard the Norwegian cargo vessel MV Tampa from entering Australia in late August 2001. The Victorian Council for Civil Liberties, and solicitor Eric Vadarlis, were seeking a writ of habeas corpus. The case is significant because it is one of the few cases to consider the nature and scope of the prerogative power of the executive branch of Government in Australia.
Al-Kateb v Godwin, was a decision of the High Court of Australia, which ruled on 6 August 2004 that the indefinite detention of a stateless person was lawful. The case concerned Ahmed Al-Kateb, a Palestinian man born in Kuwait, who moved to Australia in 2000 and applied for a temporary protection visa. The Commonwealth Minister for Immigration's decision to refuse the application was upheld by the Refugee Review Tribunal and the Federal Court. In 2002, Al-Kateb declared that he wished to return to Kuwait or Gaza. However, since no country would accept Al-Kateb, he was declared stateless and detained under the policy of mandatory detention.
Northwest Immigrant Rights Project (NWIRP) is a non-profit legal services organization in Washington state. NWIRP's mission is to promote justice by defending and advancing the rights of immigrants through direct legal services, systemic advocacy, and community education.
The Australian government has a policy and practice of detaining in immigration detention facilities non-citizens not holding a valid visa, suspected of visa violations, illegal entry or unauthorised arrival, and those subject to deportation and removal in immigration detention until a decision is made by the immigration authorities to grant a visa and release them into the community, or to repatriate them to their country of origin/passport. Persons in immigration detention may at any time opt to voluntarily leave Australia for their country of origin, or they may be deported or given a bridging or temporary visa.
Plaintiff S157/2002 v Commonwealth, was a significant Australian court case, decided in the High Court of Australia on 4 February 2003. The case was an influential decision not only in relation to immigration law but to administrative law generally and is an authority for the proposition that Parliament cannot restrict the availability of constitutional writs.
Irregular immigration to Canada is the act of a person who is not a Canadian citizen or permanent resident entering or remaining in Canada in a manner contrary to the Immigration and Refugee Protection Act and its associated regulations. This includes persons who entered Canada on a travel visa but remained beyond the period of stay specified, as well as persons who entered Canada without presenting themselves at a port of entry.
Asylum in Australia has been granted to many refugees since 1945, when half a million Europeans displaced by World War II were given asylum. Since then, there have been periodic waves of asylum seekers from South East Asia and the Middle East, with government policy and public opinion changing over the years.
Minister for Immigration and Citizenship v SZMDS, is a landmark Australian judgment of the High Court. The matter related to immigration law, jurisdictional error and illogicality as a ground of judicial review.
Jurisdictional error is a concept in administrative law, particularly in the UK and Australia. Jurisdiction is the "authority to decide", and a jurisdictional error occurs when the extent of that authority is misconceived. Decisions affected by jurisdictional error can be quashed by judicial review. Examples of jurisdictional errors include asking the wrong question, ignoring relevant material, relying on irrelevant material, and breaching natural justice.
The Migration Act 1958 is an Act of the Parliament of Australia that governs immigration to Australia. It set up Australia’s universal visa system. Its long title is "An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons."
Plaintiff M61/2010E v Commonwealth of Australia; Plaintiff M69 of 2010 v Commonwealth of Australia is a decision of the High Court of Australia in its "original jurisdiction" under Section 75 of the Constitution of Australia. The plaintiffs were Sri Lankan citizens that had arrived at Christmas Island in 2010. They sought a declaration that they were not given the same procedural fairness as on-shore claimants. The court en banc ruled for the plaintiffs.
Section 51(xxvii) of the Constitution of Australia grants the Commonwealth Parliament the power to make laws with respect to "immigration and emigration." Historically, it was the principal legislative power in support of Australia's immigration scheme, which is now embodied in the Migration Act 1958 (Cth).
Debra Sue Mortimer is an Australian Judge. She was born in New Zealand but practised law in Australia. She has been a judge of the Federal Court of Australia since 2013, having previously been a Senior Counsel practising at the Victorian Bar in migration law, environmental law and anti-discrimination law.
This page is based on this Wikipedia article Text is available under the CC BY-SA 4.0 license; additional terms may apply. Images, videos and audio are available under their respective licenses.
