Plaintiff M 70/2011 v Minister for Immigration and Citizenship: plaintiff M106/2011 v Minister for Immigration and Citizenship.

• Author: Hart, Naomi
• Position: Refugee protection claims under human rights standards

I Introduction

On 25 July 2011, the Australian Government entered into an arrangement ('the Arrangement') with the Government of Malaysia. Under the Arrangement, Australia would transfer to Malaysia $00 asylum seekers who had arrived in Australia without visas. claims for refugee status would not be assessed prior to their transfer; rather, their claims would be processed in Malaysia by the United Nations High Commissioner for Refugees (UNHCR).(1) In exchange, Australia committed to resettling 4000 refugees currently residing in Malaysia over four years.(2) The Arrangement provided that all transferees would be treated 'with dignity and respect and in accordance with human rights standards', and that '[s]pecial procedures [would] be developed ... to deal with the special needs of vulnerable cases including unaccompanied minors'. Transferees found to be refugees would 'be referred to resettlement countries pursuant to the UNFICR's normal processes and criteria', while those assessed as not entitled to refugee status may be forcibly returned to their countries of origin (though Malaysia would provide Australia with the opportunity to consider protection claims under human rights treaties other than the Refugees Convention (3)). The Arrangement represented a 'record of ... intentions and political commitments' but was not legally binding on either party.(4)

On 7 August 2011, an officer of the Department of Immigration and Citizenship (MAC) determined that the plaintiffs in this case, M70 and M106, should be taken to Malaysia pursuant to the Arrangements. (5) These plaintiffs were citizens of Afghanistan who, travelling by boat from Indonesia, arrived unlawfully at the Australian territory of Christmas Island on 4 August 2011. M70 was an adult who had travelled through Pakistan, Thailand, Malaysia and Indonesia. M106 was a minor who arrived in Australia unaccompanied by a parent or guardian, having travelled through Dubai, Thailand, Malaysia and Indonesia. (6) The only impediment to the removal of M106 was the establishment in Malaysia 0f relevant support services for unaccompanied minors, as required by the Arrangement. (7)

The plaintiffs commenced proceedings on 7 August 201 I, seeking an injunction and prohibition restraining the Minister and the Commonwealth from taking any steps to remove them From Australia. (8) The following day, Hayne J granted such an interlocutory order and referred the matter to a hearing before the full High Court. (9)

Both plaintiffs claimed to be Shi'a Muslims (10) Each of them also claimed to have a well-founded Fear of persecution in Afghanistan on grounds that would render them refugees, activating Australia's protection obligations under the Refugees Convention. (11) One such obligation is that of non-refoulement, enshrined in article 33(1) of the Refugees Convention under which a State may not expel or return (refuter) a refugee. in any manner whatsoever to the frontiers of territories where his life or freedom would he threatened on account of his article not only nationality, membership of a particular social group or political opinion The Court recognized that this article 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 threatened1. (12) Most obviously, Slates are prohibited tram returning refugees to their country of origin. They are also prohibited from removing refugees to third countries where they max face the same persecution or where that third country may return them to their home country. In this case, both plaintiffs claimed iliac they reared persecution on grounds of their religion in Malaysia (13) However, a refugee may be removed to a safe third country a Stare 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. (14)

As neither plaintiff held an Australian visa, they were unlawful non-citizens under ss 5(1) and 14 of the Migration Ad 1958 (Cth) Following the passage of the Migration Amendmenl Excision from the Migration Zone) Ad 2001 (Cth) (2001 Excision Ad), Christmas Island is defined as an 'excised offshore place' (15) Having entered Australia at an excised offshore place, the plaintiffs were offshore entry persons. (16) Under s 189(3) of the Migration Ad 1958 (Cth), an officer of the Commonwealth who knows or reasonably suspects that a person in an excised offshore place is an unlawful non-citizen ... may detain the person Under this discretionary power, both plaintiffs were detained upon their arrival at christmas Island.

The 2001 Excision also introduced s 46A of the the Migration Ad 1958 (Cth), which prohibits offshore entry persons from applying for a visa unless the Minister for Immigration and Citizenship decides that it is in the public interest to allow them to do so. The Minister is not duty-bound to consider whether to make such an allowance. (17)

The proposed transfers of asylum seekers--including the plaintiffs in this case--to Malaysia were to be carried out in purported reliance on certain provisions of the Migration Ad 1958 (Cth). Section 198(2) imposes a duty to remove from Australia as soon as reasonably possible an unlawful non-citizen who is in detention under s 189(3). Section 198A specifies to which countries asylum seekers may be removed. The I ugh Court had previously found that this section reflects '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. (18) A particular country becomes a permissible country for transfer if the Minister declares in writing that the 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. (19)

On 25 July 2011, the Minister had made such a declaration in relation to Malaysia. Soon after, he determined that the plaintiffs would be removed to Malaysia under the Arrangement.

II The decision

The Court decided by a 6:1 majority (Heydon J dissenting) that the planned removal of the plaintiffs--and any other asylum seekers--to Malaysia was unlawful under the Migration Act 1958 (Cth). The judges considered, first, whether s 1981 provided the only power under which the Minister could effect a removal, or whether he could also rely on the power of removal contained in s 198(2). Second, the Court assessed whether the Minister's declaration under s 198A had been valid, or had been tainted by jurisdictional error. For the majority, the case was decided on these two issues, but some judges addressed alternative arguments regarding the Minister's guardianship of M106, an unaccompanied minor.

A The power to effect a removal

The plaintiffs contended that s 198A provided the only source of power under which they could be removed to Malaysia. The result of this submission was that any removal was conditional on the Minister making a valid declaration under s 198A(3). (20)

In contrast, the Commonweal h submitted that, as an alternative to relying s 198A, it had the power to remove the plait under s 198(2) of the same statute. The exercise of this power did not rely on any declaration that the country to which an unlawful non-citizen was being removed satisfied any criteria as to 'safety'. (21)

The majority accepted the plaintiffs' submission on this issue. The joint. judgment (written by Gummow, Hayne, Crennan and Bell JD considered that the relevant question was whether ss 198(2) and 198A conferred only one power to take an action. If that question was answered affirmatively, then a power stated more generally must be limited by the restrictions placed on the same power in another section. (22)

These judges considered it crucial that both s 198(2) and 198A(1) deal with powers of removal. Section 198(2) states this power broadly. Section 198A, however, provides more restrictions on a removal--that the country to which they are removed must have been the subject of a valid declaration under s 198A(3). (23) They found that s 198A was specifically designed to protect those to whom Australia had not yet determined whether it owed obligations. 'They decided that S 198(2) should not be read as a power to remove a person whose claim for protection has not vet been assessed to any country willing to receive that person, as such a reading would give s 198A(1) no separate work to do. (24)

French CJ reached a similar conclusion. He found that the mandatory detention and removal scheme ... revolves, as counsel for the plaintiffs put it, around processing their claims through the visa system and removing those who are unsuccessful (25) Section 198 was designed to provide a mechanism for removing those whose claims to protection had failed. (26) On the other hand, the purpose of s 198A is to govern the removal of those whose protection claims are not to be assessed in Australia. (27) Thus, [a]bsent the possibility of removal to a declared country, [a] person cannot be removed from Australia before there has been an assessment of his or her claim to be a refugee. (28)

Similarly, Kiefel J found that a power stated generally is subject to restrictions placed on the same power defined elsewhere more narrowly. (29) Section 198A restricted the power of removal, where an assessment of refugee status had nor occurred in Australia, to safe third countries where such an assessment could take place instead. (30) The general power to remove in s 198(2) was to be restricted in...