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III. Australian Asylum Policy all at Sea: An analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the Australia–Malaysia Arrangement

Published online by Cambridge University Press:  16 February 2012

Tamara Wood
Affiliation:
Faculty of Law, University of New South Wales, Australia.
Jane McAdam
Affiliation:
Faculty of Law, University of New South Wales, Australia; Australian Research Council Future Fellow.

Extract

On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an ‘Arrangement’ for the transfer of asylum seekers.1 Its stated aim was to deter asylum seekers from travelling by boat to Australia by providing that the next 800 asylum seekers to arrive unlawfully would be transferred to Malaysia in exchange for the resettlement of 4,000 UNHCR-approved refugees living there.2 The joint media release by the Australian Prime Minister and Minister for Immigration lauded it as a ‘groundbreaking arrangement’ that demonstrated ‘the resolve of Australia and Malaysia to break the people smugglers’ business model, stop them profiting from human misery, and stop people risking their lives at sea’.3 The success of the Arrangement relied on Malaysia being perceived as an inhospitable host country for asylum seekers, with the Australian Government emphasising that it provided ‘the best course of action to make sure that we sent the maximum message of deterrence’.4 The Government also made clear that those transferred to Malaysia would ‘go to the back of the [asylum] queue’.5

Type
Current Developments: Public International Law
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (25 July 2011) (Australia–Malaysia Arrangement).

2 Prime Minister and Minister for Immigration and Citizenship (Cth), ‘Transcript of Joint Press Conference’ (12 September 2011) <http://www.pm.gov.au/press-office/transcript-joint-press-conference-canberra-15>.

3 Prime Minister and Minister for Immigration and Citizenship (Cth), ‘Australia and Malaysia Sign Transfer Deal’ (Media Release, 25 July 2011) <http://www.pm.gov.au/press-office/australia-and-malaysia-sign-transfer-deal>.

4 Prime Minister and Minister for Immigration and Citizenship (n 2).

5 ‘Gillard Reaches Asylum Agreement with Malaysia’ (7 May 2011) <http://www.abc.net.au/news/stories/2011/05/07/3210503.htm?site=qanda>.

6 Prime Minister and Minister for Immigration and Citizenship (n 2).

7 Human Rights Watch, 'Australia: Ruling Upholds Refugees’ Rights’ (2011) <http://www.hrw.org/news/2011/08/31/australia-ruling-upholds-refugees-rights>.

8 G Lopez, ‘Malaysian Refugee Swap Spells Human Rights Disaster’ (The Conversation, 27 July 2011) <http://theconversation.edu.au/malaysian-refugee-swap-spells-human-rights-disaster-2533>.

9 See, eg, Human Rights Watch, ‘World Report 2011: Malaysia’ (January 2011) <http://www.hrw.org/world-report-2011/malaysia>; Amnesty International, ‘Abused and Abandoned: Refugees Denied Rights in Malaysia’ (2009) <http://www.amnesty.org/en/library/asset/ASA28/010/2010/en/2791c659-7e4d-4922-87e0-940faf54b92c/asa280102010en.pdf>; Amnesty International, ‘Human Rights at Risk in Mass Deportation of Undocumented Migrants’ (2004) <http://www.amnesty.org/en/library/asset/ASA28/008/2004/en/a4e9ce8d-d57c-11dd-bb24-1fb85fe8fa05/asa280082004en.html>; UN Human Rights Council, ‘Report of the Working Group on Arbitrary Detention: Mission to Malaysia’ (8 February 2011) UN Doc A/HRC/16/47/Add.2.

10 Amnesty International, ‘Australian Government “Waters Down” Refugee Rights’ (12 September 2011) <http://www.amnesty.org.au/news/comments/26727/>.

11 See B Packham and J Kelly, ‘Human Rights Groups Attack Malaysia Refugee Swap Deal’, Australian (26 July 2011) <http://www.theaustralian.com.au/national-affairs/labors-blank-cheque-for-malaysian-refugee-deal/story-fn59niix-1226102110131>; Human Rights Watch, ‘Letter to the Prime Ministers of Australia and Malaysia regarding the Australia–Malaysia Transfer and Resettlement Arrangement’ (26 July 2011) <http://www.hrw.org/news/2011/07/26/letter-prime-ministers-australia-and-malaysia-regarding-australia-malaysia-transfer->.

12 Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137; Australian Refugee Law Academics, Submission No 25 to Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Inquiry into Australia's Agreement with Malaysia in relation to Asylum Seekers, 15 September 2011, 7, states: ‘Although the Arrangement has two positive features—it represents an opportunity to engage with Malaysia to improve the circumstances of asylum seekers and refugees there, and it creates an additional 4,000 resettlement places in Australia for refugees—these do not outweigh the lack of legal safeguards and protection outcomes for the 800 asylum seekers sent to Malaysia.’ See also ‘Refugee Expert says Australia/Malaysia Swap Illegal’, ABC News (10 June 2011) <http://www.abc.net.au/worldtoday/content/2011/s3240886.htm>; J McAdam, ‘Explainer: The Facts about the Malaysian Solution and Australia's International Obligations’ (The Conversation, 16 June 2011) <http://theconversation.edu.au/explainer-the-facts-about-the-malaysian-solution-and-australias-international-obligations-1861>; S Taylor, ‘Regional Cooperation and the Malaysian Solution’ (Inside Story, 9 May 2011) <http://inside.org.au/regional-cooperation-and-the-malaysian-solution/>.

13 Plaintiff M70/2011 and Plaintiff M106/2011 v Minister for Immigration and Citizenship [2011] HCA 32 (31 August 2011).

14 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Cth).

15 See A Gartrell, ‘Government Concedes Malaysia Deal Off’, Sydney Morning Herald (Sydney, 13 October 2011) <http://news.smh.com.au/breaking-news-national/government-concedes-malaysia-deal-off-20111013-1llov.html>.

16 For a detailed analysis, see McAdam, J and Purcell, K, ‘Refugee Protection in the Howard Years: Obstructing the Right to Seek Asylum’ (2008) 27 Australian YBIntlL 87Google Scholar. The current Labor government has continued the Howard government's policy of offshore processing. The policy applies to ‘offshore entry persons’, defined by s 5 of the Migration Act 1958 (Cth) as persons who ‘entered Australia at an excised offshore place after the excision time for that offshore place’. While in theory offshore processing could apply to persons arriving at an excised offshore place by air, such places are largely Australian islands and coastal ports and so in practice the policy applies exclusively to unauthorised asylum seekers arriving by boat.

17 Migration Amendment (Excision from Migration Zone) Act 2001 (Cth); Migration Amendment (Excision from Migration Zone (Consequential Provisions)) Act 2001 (Cth); Migration Amendment Regulations 2005 (No. 6) (Cth) (which excised territories previously disallowed in the proposed Migration Amendment Regulations 2003 (No. 8) (Cth)). See also response from the Department of Immigration, Multicultural and Indigenous Affairs to a question from the Committee: Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Migration Zone Exclusion: An Examination of the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002 and Related Matters (2002) para 2.34. A Bill to excise the whole of the Australian mainland was withdrawn when the government realised it could not get the numbers to pass it: Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (Cth); see also Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Inquiry into the Provisions of the Migration Amendment (Designated Unauthorised Arrivals) Bill 2006 (2006).

18 A ‘protection visa’ allows a Convention refugee to live in Australia as a permanent resident, with the right to work and access to social security services. See Department of Immigration and Citizenship (DIAC), ‘Visas, Immigration and Refugees: Refugee and Humanitarian’ <http://www.immi.gov.au/visas/humanitarian/onshore/866/>.

19 Migration Act 1958 (Cth), s 494AA. This section does not exclude claims brought under the original jurisdiction of the High Court of Australia (Australian Constitution, s 75). For a detailed discussion of the Pacific Solution, see, eg, Mathew, P, ‘Australian Refugee Protection in the Wake of the Tampa’ (2002) 96 AJIL 661CrossRefGoogle Scholar; Francis, A, ‘Bringing Protection Home: Healing the Schism between International Obligations and National Safeguards created by Extraterritorial Processing’ (2008) 20 International Journal of Refugee Law 253CrossRefGoogle Scholar; McAdam and Purcell (n 16) 87; Crock, M, ‘In The Wake of the Tampa: Conflicting Visions of International Refugee Law in the Management of Refugee Flows’ (2003) 2 Pacific Rim Journal of Law and Policy 49Google Scholar.

20 See, eg, Newman, LK, Dudley, M and Steel, Z, ‘Asylum, Detention, and Mental Health in Australia’ (2008) 27 Refugee Survey Quarterly 110CrossRefGoogle Scholar; Taylor, S, ‘The Pacific Solution or A Pacific Nightmare: The Difference between Burden Shifting and Responsibility Sharing’ (2005) 6 Asia-Pacific Law and Policy Journal 1Google Scholar; Amnesty International, ‘Offending Human Dignity: The “Pacific Solution” ’ (Report No ASA 12/009/2002 (August 2002)); Human Rights Watch, ‘By Invitation Only: Australian Asylum Policy’ (December 2001); Human Rights and Equal Opportunity Commission, Submission No. 112 to Senate Legal and Constitutional Affairs Legislation Committee (n 17).

21 See, eg, Newman, Dudley and Steel (n 20); Silove, D, Austin, P and Steel, Z, ‘No Refuge from Terror: The Impact of Detention on the Mental Health of Trauma-Affected Refugees Seeking Asylum in Australia’ (2007) 44 Transcultural Psychiatry 359CrossRefGoogle ScholarPubMed; ‘Nauru Camps “Psychiatrist's Nightmare”: Doctor’ (15 May 2003) <http://www.abc.net.au/7.30/content/2003/s855996.htm>.

22 Indeed, asylum seekers transferred to Nauru and Papua New Guinea were told that they would never be resettled in Australia, even though the vast majority ultimately were, since other countries regarded them as Australia's responsibility. See Commonwealth, Parliamentary Debates, Senate Legal and Constitutional Affairs Committee, 19 February 2008, 124 (Chris Evans, Minister for Immigration and Citizenship). As the Secretary of the Department of Immigration observed: ‘There were of course some people—largely that group from the Tampa—who were resettled in New Zealand. But following that 2001 resettlement, there was very limited resettlement elsewhere. A number of people went to Scandinavia but the vast majority came to Australia. It is the department's assessment that resettlement of people in other places is extremely unlikely. That is essentially for the reason that those folks are seen as Australia's responsibility and Australia is a country with sufficient resources to deal with the issue’: at 124 (Andrew Metcalfe).

23 For a breakdown of boat arrivals in Australia by year since 1976, see J Phillips and H Spinks, Parliament Library, ‘Background Note: Boat Arrivals in Australia since 1976’ (15 July 2011) <http://www.aph.gov.au/library/pubs/bn/sp/boatarrivals.htm#_Toc285178604>.

24 For example, UNHCR figures show a worldwide decrease in the number of persons seeking asylum in industrialised countries from 2001 to 2002, the period immediately following the introduction of the Pacific Solution. In Australia, the number of asylum seekers arriving by air during this same period decreased by some 51 per cent, with 6,353 fewer so-called ‘authorised’ asylum seekers arriving in 2002 compared to 2001. See UNHCR, ‘Asylum Applications Lodged in Industrialized Countries: Levels and Trends 2000–2002’ <http://www.unhcr.org/3e705bb24.html>.

25 See <http://www.liberal.org.au/~/media/Files/Policies%20and%20Media/National%20Security/Border%20Protection%20A4%20Coalition%20policy%20%20Web%20Version.ashx>. It is reveal-ing that the Liberal Party's asylum policy comes within its policies on ‘National Security’.

26 Minister for Immigration and Citizenship (Cth), ‘Last Refugees Leave Nauru’ (Media Release, 8 February 2008) <http://parlinfo.aph.gov.au/parlInfo/download/media/pressrel/YUNP6/upload_binary/yunp61.pdf;fileType=application%2Fpdf#search=%22media/pressrel/YUNP6%22>.

27 Commonwealth, Parliamentary Debates, Senate Standing Legal and Constitutional Affairs Committee, 19 February 2008, 124 (Chris Evans, Minister for Immigration and Citizenship).

28 Australia funds Indonesia's interception of asylum seekers en route to Australia, including by boat; asylum seekers' detention in Indonesian facilities; and some provision of material assistance via the International Organization for Migration (IOM). A similar arrangement exists between Australia and Papua New Guinea. For a detailed discussion, see Taylor, S, ‘Australian Funded Care and Maintenance of Asylum Seekers in Indonesia and Papua New Guinea: All Care but No Responsibility?’ (2010) 33 UNSW Law Journal 337Google Scholar.

29 ‘Co-Chairs’ Statement of the Fourth Bali Regional Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime’ (Bali, 29–30 March 2011) para 16.

30 See, eg, Seah, D, ‘The ASEAN Charter’ (2009) 58 ICLQ 197Google Scholar.

31 Refugee Council of Australia, ‘2010 High Priorities List: Asylum Policy Issues’ (20 October 2010) <http://www.refugeecouncil.org.au/docs/current/2010_Asylum_priorities.pdf>. See also ‘A Regional Framework: A Joint Statement by Australian Non-Government Organisations’ (1 August 2010) <http://www.refugeecouncil.org.au/docs/releases/2010/100801_Regional_Protection_Framework.pdf>. UNHCR presented the original proposal for a Regional Cooperation Framework to the November 2010 Ad Hoc workshop on regional cooperation in Manila: UNHCR, ‘Regional Cooperative Approach to Address Refugees, Asylum-Seekers and Irregular Movement’ (Manila, 22–23 November 2010) <http://www.baliprocess.net/files/Regional%20Cooperation%20Approach%20Discussion%20document%20-%20final.pdf>. More recently, the UNHCR Assistant High Commissioner for Protection, Erika Feller, published an article in an Australian newspaper stressing that ‘the key to the success of regional arrangements is a genuine engagement and sharing of burdens and responsibilities among affected states. Arrangements that deflect burdens and responsibilities rather than properly apportioning them stand a good chance of heightening tensions, creating fertile ground for people smuggling’: E Feller, ‘Detention Centres and Restrictions on Movement Solve Nothing’, The Age (Melbourne, 30 August 2010) <http://www.theage.com.au/opinion/politics/detention-centres-and-restrictions-on-movement-solve-nothing-20100829-13xhf.html#ixzz1c92fOMmJ>.

32 J McAdam, ‘Gillard's Missing the Boat on Asylum’, Sydney Morning Herald (Sydney, 7 July 2010) <http://www.smh.com.au/opinion/politics/gillards-missing-the-boat-on-asylum-20100706-zyvb.html>; B Saul, ‘Some Ifs, but Timor Could Be a Solution’, Sydney Morning Herald (Sydney, 9 July 2010) <http://www.smh.com.au/opinion/politics/some-ifs-but-timor-could-be-a-solution-20100708-10276.html>; S Taylor, ‘Asylum Seeker Processing in East Timor: A Solution for Whom?’, Inside Story (9 March 2011) <http://inside.org.au/asylum-seeker-processing-in-east-timor-a-solution-for-whom/>.

33 S Morrison, ‘Buying a Stairway to Howard: An Assessment of Labor's Approach to Asylum Policy and Boat Arrivals’ (Address to the Foreign Correspondents Association, Sydney, 19 May 2011) <http://www.scottmorrison.com.au/info/speech.aspx?id=195>.

34 Negotiations between Australia and Papua New Guinea were hampered by significant political upheaval in the latter. Despite a breakthrough on 11 August 2011, when PNG's new Prime Minister, Peter O'Neill finally agreed to open the asylum seeker centre on Manus Island, the plan has remained in abeyance and its legality under Australian law is now doubtful following the High Court's decision in Plaintiff M70. See P Coorey, ‘Unrest Slowing Talks about Manus, Says PM’, Sydney Morning Herald (Sydney, 27 July 2011) <http://www.smh.com.au/national/unrest-slowing-talks-about-manus-says-pm-20110726-1hykq.html>; K Needham, ‘PNG Yes to Asylum Centre’, The Age (Melbourne, 11 August 2011) <http://www.theage.com.au/national/png-yes-to-asylum-centre-20110810-1imx1.html>.

35 Phillips and Spinks (n 23).

36 The total number of asylum claims received by Australia during this period (4,930) constituted just 2.5 per cent of asylum claims across 44 industrialized countries: UNHCR, ‘Fewer Asylum Claims in Australia’ (18 October 2011) <http://www.unhcr.org.au/unhcr/index.php?option=com_content&view=article&id=227&catid=35&Itemid=63>. When arrivals by air are taken into account, Australia experienced a decrease of 19 per cent compared to the previous year: UNHCR, Asylum Levels and Trends in Industrialized Countries (2011) 8.

37 J Phillips, Parliamentary Library, ‘Background Note: Asylum Seekers and Refugees: What are the Facts?’ (22 July 2011) <http://www.aph.gov.au/library/pubs/bn/sp/AsylumFacts.pdf>.

38 For an interesting analysis of public perceptions of ‘boat people’ in Australia, see FH McKay, SL Thomas and R Warwick Blood, ‘“Any One of These Boat People Could be a Terrorist for All We Know!” Media Representations and Public Perceptions of “Boat People” Arrivals in Australia’ (2011) 12 Journalism 607.

39 Prime Minister and Minister for Immigration and Citizenship (n 3).

40 Australia–Malaysia Arrangement (n 1) cl 5. The Australian government has agreed to honour this commitment, but has stated that these places will no longer be additional to Australia's existing resettlement quota, but will be subsumed within it: Prime Minister and Minister for Immigration and Citizenship (Cth), ‘Transcript of Joint Press Conference’ (13 October 2011) <http://www.pm.gov.au/press-office/transcript-joint-press-conference-canberra-17>.

41 Operational Guidelines to Support Transfers and Resettlement, Australia–Malaysia Arrangement (n 1), annex A. The Guidelines included provisions relating to the initial handling of transferees in Australia, handover to Malaysian authorities, referral to UNHCR for refugee status determination and the situation of transferees during their stay in Malaysia.

42 Australia–Malaysia Arrangement (n 1) cl 9.

43 ibid, cl 16.

44 ibid, preamble.

45 ibid, cls 1, 4, 5, 12(1).

46 In particular, s 36(2) provides for the grant of a ‘protection visa’ to persons ‘to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol’, see n 49.

47 Australia–Malaysia Arrangement (n 1) cl 4(1)(a).

48 Section 5 of the Migration Act 1958 (Cth) 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.’

49 Section 36(2) of the Migration Act 1958 provides that a ‘protection visa’ is granted to a person who is (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa.

50 Migration Act 1958 (Cth), s 46A.

51 The procedural safeguards were somewhat expanded in 2010, when the High Court held that the common law rules of natural justice continue to apply to applicant's whose claims for protection are assessed under the offshore processing regime. See Plaintiff M61/2010E and Plaintiff M69/2010 v Commonwealth of Australia (2010) 272 ALR 14.

52 Migration Act 1958 (Cth), s 198A(3)(i)–(iv).

53 Section 198A(1) of the Migration Act 1958 (Cth) provides: ‘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)’. French CJ explained that ‘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’: Plaintiff M70 (n 13) para 10.

54 The application, being for an injunction against the Commonwealth preventing the applicants’ removal to Malaysia, was brought in the High Court's original jurisdiction under s 75 of the Australian Constitution: under s 75(iii), as a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; and s 75(v), as a matter in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth.

55 Plaintiff M70 (n 13).

56 Plaintiff M70 had been determined by an officer of the Department of Immigration and Citizenship to be liable for removal under the Arrangement. In relation to M106, an officer of the Department had assessed that, being an unaccompanied minor, the only impediment to his removal was the establishment in Malaysia of relevant support services. See Plaintiff M70 (n 13) para 8 (French CJ).

57 ‘Plaintiffs’ Outline of Submissions’ (17 August 2011) para 125 in Plaintiff M70 (n 13); Plaintiff M70 (n 13) para 203 (Kiefel J). The applicants’ fear of persecution in Malaysia for reasons of their religion as Shi'a Muslims reflects the broader risk of refoulement of asylum seekers subject to transfer under the Australia–Malaysia Arrangement, given that the majority of asylum seekers arriving in Australia by boat in recent years have been Shi'a Muslims fleeing Taliban held areas of Pakistan and Afghanistan. Plaintiff M106 also expressed concern about his status as a minor and the treatment of refugees in Malaysia: see paras 39–40 (French CJ).

58 See generally Aust, A, Handbook of International Law (CUP, 2005) 7985CrossRefGoogle Scholar.

59 ‘Plaintiffs’ Outline of Submissions’ (n 57) para 4.4.

60 ‘Submission of the Defendants’ (18 August 2011) para 56 in Plaintiff M70 (n 13).

61 ibid, paras 69–70.

62 The joint judgment was delivered by Gummow, Hayne, Crennan and Bell JJ.

63 Plaintiff M70 (n 13) para 99 (Gummow, Hayne, Crennan and Bell JJ), para 55 (French CJ), para 239 (Kiefel J).

64 Section 198(2) of the Migration Act 1958 (Cth), provides: ‘(2) An officer must remove as soon as reasonably practicable an unlawful non-citizen: (a) who is covered by subparagraph 193(1)(a)(i), (ii) or (iii) or paragraph 193(1)(b), (c) or (d); and (b) who has not subsequently been immigration cleared; and (c) who either: (i) has not made a valid application for a substantive visa that can be granted when the applicant is in the migration zone; or (ii) has made a valid application for a substantive visa, that can be granted when the applicant is in the migration zone, that has been finally determined.’

65 Plaintiff M70 (n 13) paras 97–98 (Gummow, Hayne, Crennan and Bell JJ), para 55 (French CJ), para 239 (Kiefel J).

66 ibid, para 13 (French CJ).

67 ibid, para 128 (Gummow, Hayne, Crennan and Bell JJ).

68 ibid, para 13 (French CJ), paras 127–128 (Gummow, Hayne, Crennan and Bell JJ), para 225 (Kiefel J). Kiefel J also noted that at the time the legislative changes were proposed the government had said that ‘Australia will continue to honour our international protection obligations’: para 212.

69 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: Plaintiff M70 (n 13) para 59 (French CJ).

70 ibid, para 29 (French CJ).

71 Or, according to French CJ's reasoning, the Minister must form a belief that such protections would be provided according to legal obligation.

72 Plaintiff M70 (n 13) para 116 (Gummow, Hayne, Crennan and Bell JJ), paras 64–66 (French CJ), para 244 (Kiefel J).

73 ibid, paras 124–25 (Gummow, Hayne, Crennan and Bell JJ).

74 ibid, para 61 (French CJ).

75 ibid, para 62 (French CJ) (emphasis added).

76 ibid, para 67 (French CJ).

77 ibid, para 245 (Kiefel J).

78 ibid, para 112 (Gummow, Hayne, Crennan and Bell JJ), noting that this is evident in sub-section (iv) which provides that the country ‘meets relevant human rights standards’ in providing protection.

79 ibid, para 114 (Gummow, Hayne, Crennan and Bell JJ).

80 ibid, para 135 (Gummow, Hayne, Crennan and Bell JJ).

81 ibid, para 80 (Gummow, Hayne, Crennan and Bell JJ).

82 ibid, para 30 (French CJ).

83 ibid, para 103 (Gummow, Hayne, Crennan and Bell JJ).

84 ibid, para 29 (French CJ).

85 Defendant's submissions (n 60) para 84.3, cited in Plaintiff M70 (n 138) para 29 (French CJ), para 253 (Kiefel J).

86 Plaintiff M70 (n 138) para 348 (Kiefel J).

87 ibid, para 135 (Gummow, Hayne, Crennan and Bell JJ).

88 ibid, para 65 (French CJ).

89 ibid.

90 ibid, paras 255–56 (Kiefel J). Kiefel J also referred to the sources of information relied upon by the Minister in making the declaration and held that ‘[t]hat information did not confirm the existence of the necessary facts concerning Malaysia’: para 249. Kiefel J also noted, ‘It remains the case that Malaysia does not have laws which recognise and protect refugees from refoulement and persecution’: para 254.

91 ibid, paras 158–59 (Heydon J).

92 ibid, para 162 (Heydon J).

93 ibid, para 180 (Heydon J).

94 Section 6 of the IGOC Act provides: ‘The Minister shall be the guardian of the person, and of the estate in Australia, of every non-citizen child who arrives in Australia after the commencement of this Act to the exclusion of the parents and every other guardian of the child, and shall have, as guardian, the same rights, powers, duties, obligations and liabilities as a natural guardian of the child would have, until the child reaches the age of 18 years or leaves Australia permanently, or until the provisions of this Act cease to apply to and in relation to the child, whichever first happens.’

95 ibid, s 6A(1).

96 Plaintiff M70 (n 13) para 148 (Gummow, Hayne, Crennan and Bell JJ), para 69 (French CJ), para 257 (Kiefel J).

97 ibid, para 146 (Gummow, Hayne, Crennan and Bell JJ).

98 ibid, para 147 (Gummow, Hayne, Crennan and Bell JJ).

99 ibid, para 142 (Gummow, Hayne, Crennan and Bell JJ).

100 ibid, para 196 (Heydon J). Heydon J's finding rested on s 6A(4) of the IGOC Act which provides that the section does not affect the operation of any other law ‘regulating the departure of persons from Australia’.

101 Refugee Council of Australia, ‘Refugee Council Welcomes High Court Ruling’ (31 August 2011) <http://www.refugeecouncil.org.au/news/releases/110831_High_Court.pdf>.

102 Polites v The Commonwealth (1932) 47 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. Both cited in Plaintiff M70 (n 13) paras 246–47 (Kiefel J).

103 Plaintiff M61 (n 51) para 27 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).

104 Plaintiff M70 (n 13) para 246 (Kiefel J).

105 ibid, para 91 (French CJ).

106 See ibid, paras 212, 218, 237 (Kiefel J), paras 10, 98 (French CJ). These judges drew heavily on the previous case of Plaintiff M61 (n 51), which held that ‘the 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.’ See Plaintiff M61 (n 51) para 27 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ). The Explanatory Memorandum for the Bill for the Migration Reform Act 1992 (Cth) also stated that the protection visa was ‘intended to be the mechanisms by which Australia offers protection to person who fall under [the Convention]’: cited in Plaintiff M70 (n 13) para 217 (Kiefel J).

107 Plaintiff M70 (n 13) para 118 (Gummow, Hayne, Crennan and Bell JJ).

108 See, eg, UNGA Res 45/140 (14 December 1990) UN Doc A/RES/45/140A; UNGA Res 47/106 (16 December 1992) UN Doc A/RES/47/106; UNGA Res 65/264 (28 January 2011) A/RES/65/264; UNHCR, ‘A Thematic Compilation of Executive Committee Conclusions’ (4th edn, April 2009) 38–55 (for an extensive list of relevant Executive Committee Conclusions). See also Cotonou Agreement (Second Revision 2010) OJ L287, art 60. For a recent overview of the principle in the displacement context, see UNHCR, ‘International Cooperation to Share Burden and Responsibilities’ (Expert Meeting in Amman, Jordan, 27–28 June 2011).

109 Final Act of the United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, appended to the Refugee Convention.

110 Australian Refugee Law Academics (n 12) 5.

111 For example, among the States of the Asia-Pacific, only the following countries are parties to the Refugee Convention: Australia, Cambodia, China, Fiji, Japan, New Zealand, Papua New Guinea, Philippines, Republic of Korea, Samoa, Solomon Islands and Timor-Leste.

112 Australian Refugee Law Academics (n 12) 8. See also Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) Michigan Journal of International Law 223, 238–42.

113 Plaintiff M70 (n 13) para 244 (Kiefel J).

114 Lisbon Expert Roundtable, ‘Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers (December 2002) (‘Lisbon Expert Roundtable’) para 15(e).

115 Asylum seekers transferred under the Arrangement were to be exempt from punishment for unlawful entry into Malaysia from Australia, however French CJ noted the fragility of the exemption, stating that there was ‘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’: Plaintiff M70 (n 13) para 33 (French CJ).

116 Senate Legal and Constitutional Affairs References Committee, Parliament of Australia, Inquiry into Australia's Arrangement with Malaysia in Relation to Asylum Seekers (2011) para 1.1. This inquiry was established prior to the High Court challenge. Following the outcome of that challenge, the Committee decided that there was no need to continue with the inquiry. However, when the Australian Government announced that it would seek legislative changes to the Migration Act 1958 (Cth), to make decisions pursuant to section 198A wholly within the Minister's discretion, the inquiry was reinstituted.

117 ibid, para 4.5.

118 ibid, para 4.6.

119 Plaintiff M70 (n 13) para 67 (French CJ).

120 MSS v Belgium and Greece App No 30696/09 (ECtHR, 21 January 2011).

121 Clause 16 stipulates that the Arrangement ‘represents a record of the Participants’ intentions and political commitments but is no legally binding on the Participants’: Australia–Malaysia Arrangement (n 1) cl 16. See also clause 19.2, which provides that the parties may ‘jointly decide in writing to vary or extend this Arrangement’; Operational Guidelines (n 41) para 6.2.

122 Australia–Malaysia Arrangement (n 1) cl 10(2)(a).

123 The UN High Commissioner for Human Rights for example has stated that: ‘diplomatic assurances do not work as they do not provide adequate protection against torture and ill-treatment, nor do they, by any means, nullify the obligation of non-refoulement. To begin, it is understood that diplomatic assurances would be sought only after an assessment has been made that there is a risk of torture in the receiving State. If there is no risk of torture in a particular case, they are unnecessary and redundant. It should be clear that diplomatic assurances cannot replace a State's obligation of non-refoulement in these circumstances, either in fact or in law. Second, while some have suggested the establishment of post-return monitoring mechanisms as a means for removing the risk of torture and ill-treatment, we know through the experience of international monitoring bodies and experts that this is unlikely to be an effective means for prevention’: UN High Commissioner for Human Rights, ‘Statement by the High Commissioner’ (Council of Europe Group of Specialists on Human Rights and the Fight against Terrorism, 29–31 March 2006). See also MSS v Belgium and Greece (n 120): ‘the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention’: at 353. For a defence of political assurances in national security deportation cases see Jones, K, ‘Deportations with Assurances: Addressing Key Criticisms (2008) 57 ICLQ 183CrossRefGoogle Scholar.

124The Michigan Guidelines on Protection Elsewhere’ (2007) 28 Michigan Journal of International Law 207Google Scholar, para 3.

125 See Plaintiff M70 (n 13) para 29 (French CJ).

126 See, eg, Human Rights Watch, Submission 2 to Senate Legal and Constitutional Affairs References Committee, cited in Senate Legal and Constitutional Affairs References Committee (n 116) para 3.4.

127 A Bartlett and M van Galen-Dickie, Australian National University, Submission 19 to Senate Legal and Constitutional Affairs References Committee, cited in Senate Legal and Constitutional Affairs References Committee (n 116) para 3.6.

128 Senate Legal and Constitutional Affairs References Committee (n 116) para 4.2.

129 ibid, para 4.3.

130 ibid, para 4.4.

131 This principle is reflected in article 33 of the Refugee Convention; article 3 of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85; articles 6 and 7 of the International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR); articles 6 and 37 of the Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC); article 16 of the International Convention for the Protection of All Persons from Enforced Disappearance (adopted 20 December 2006, entered into force 23 December 2010) UNGA res 61/177 (12 January 2007).

132 See Goodwin-Gill, G S and McAdam, J, The Refugee in International Law (3rd edn, OUP, 2007)Google Scholar; E Lauterpacht and D Bethlehem, ‘The Scope and Content of the Principle of Non-refoulement’ in E Feller, V Türk, and F Nicholson (eds) Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (CUP 2003) 78–177; Declaration of States Parties to the 1951 Convention and/or its 1967 Protocol (adopted at the Ministerial Meeting of States Parties, (12–13 December 2001) UN Doc HCR/MMSP/2001/09.

133 R (ex parte Adan) v Secretary of State for the Home Department (2001) 2 WLR 143, 165.

134 Plaintiff M70 (n 13) para 214 (Kiefel J) (emphasis added). See also Australian Refugee Law Academics (n 12) 11.

135 ibid, para 39 (French CJ).

136 UNHCR, ‘Asylum Processes (Fair and Efficient Asylum Procedures)’ (31 May 2001) UN Doc EC/GC/01/12 paras 12–18 (for a discussion of best practice); Select Committee on the European Union, Handling EU Asylum Claims: New Approaches Examined (HL 2003–04, 74), para 66; UN Human Rights Committee, ‘Concluding Observations on Estonia’ (15 April 2003) UN Doc CCPR/CO/77/EST, para 13; Lisbon Expert Roundtable (n 117) para 9; MSS v Belgium and Greece (n 120). See also Senate Legal and Constitutional Affairs References Committee (n 116) paras 3.34, 3.36, 4.9. The Committee stated that the Arrangement did ‘not appear to guarantee that an appropriately rigorous approach will be taken in making case-by-case determinations as to whether Malaysia is a safe country for individual Transferees’: para 3.34.

137 Goodwin-Gill and McAdam (n 132) 530. The existence of ‘fair and efficient procedures’ has also been recognised as important by the Lisbon Expert Roundtable (n 114) para 15(f).

138 Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290, cited in Plaintiff M70 (n 13) para 215 (Kiefel J).

139 Plaintiff M70 (n 13) para 125 (Gummow, Hayne, Crennan and Bell JJ), para 216 (Kiefel J).

140 ibid, para 217 (Kiefel J).

141 UNHCR Executive Committee, ‘Conclusion No 8 (XXVIII): Determination of Refugee Status’ (12 October 1977) para e.

142 Australia–Malaysia Arrangement (n 1) cl 9(3). The Operational Guidelines stipulate only the gathering of biodata, basic security checks and fitness to travel assessments.

143 Pre-Removal Assessment Guidelines, cited in Plaintiff M70 (n 13) para 36 (French CJ).

144 Plaintiff M70 (n 13) para 38 (French CJ). Kiefel J also noted that the pre-transfer assessments of the plaintiffs ‘were not directed to the question whether Australia owed protection obligations to them as refugees’: para 239.

145 Australia–Malaysia Arrangement (n 1) cls 1(2), 10(2)(a).

146 Australian Refugee Law Academics (n 12) 12.

147 See, eg, Kagan, Michael, ‘The Beleaguered Gatekeeper: Protection Challenges Posed by UNHCR Refugee Status Determination’ (2006) 18 International Journal of Refugee Law 1CrossRefGoogle Scholar.

148 See Plaintiff M70 (n 13) paras 32–33 (French CJ).

149 The Senate Committee noted that despite the prohibition on refoulement being part of customary international law, Malaysia has a history of non-compliance: Senate Legal and Constitutional Affairs References Committee (n 116) para 3.38.

150 Plaintiff M70 (n 13) para 242 (Kiefel J). Cf the majority who held that this requirement might be met either where the country provides such procedures itself under its domestic law, or is bound as a matter of international obligation to allow a third party, such as the UNHCR, to do so: para 125 (Gummow, Hayne, Crennan and Bell JJ).

151 ibid, para 243 (Kiefel J).

152 Plaintiff M70 (n 13) para 125 (Gummow, Hayne, Crennan and Bell JJ) (emphasis added).

153 Cited in ibid, para 220 (Kiefel J).

154 ibid, para 63 (French CJ).

155 Cited in ibid.

156 ibid, para 117 (Gummow, Hayne, Crennan and Bell JJ).

157 Refugee Convention, art 16(1).

158 ibid, art 3.

159 ibid, art 17(1).

160 ibid, art 22(1).

161 ibid, art 4.

162 Plaintiff M70 (n 13) para 117 (Gummow, Hayne, Crennan and Bell JJ).

163 Lisbon Expert Roundtable (n 114) para 15(b).

164 Australian Refugee Law Academics (n 12) 14.

165 Migration Act 1958 (Cth), s 198A(3)(a)(iv).

166 The joint judgment stated: ‘To confine “that protection” to the obligation of non-refoulement would give little or no practical operation to s 198A(3)(a)(iv)’: Plaintiff M70 (n 13) para 119 (Gummow, Hayne, Crennan and Bell JJ). French CJ held ‘[i]t 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)’: para 66.

167 ibid, para 234 (Kiefel J).

168 ibid, para 240 (Kiefel J).

169 International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3. Malaysia is a party to the CRC; the Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 December 1979, entered into force 3 September 1981) 1249 UNTS 13; and the Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3.

170 The assessment by the Australian Department of Foreign Affairs and Trade reported that the Malaysian Federal Constitution contains a number of ‘fundamental liberties’: cited in Plaintiff M70 (n 13) para 28 (French CJ).

171 Australia–Malaysia Arrangement (n 1) cl 8(1).

172 ibid, cl 10(4)(a).

173 Operational Guidelines (n 41) paras 3.1(c), 3.2(c).

174 ibid, paras 3.3(a), 3.4.

175 Australia–Malaysia Arrangement (n 41) cl 3.

176 ibid, cl 19.

177 Immigration Act 1959 (Malaysia), s 6(3). See Plaintiff M70 (n 13) para 30 (French CJ).

178 See Amnesty International, ‘Abused and Abandoned’ (n 9).

179 Department of State, United States, ‘Trafficking in Persons Report 2010’, (14 June 2010) <http://www.state.gov/documents/organization/142979.pdf>.

180 Cited in Plaintiff M70 (n 13) para 28 (French CJ).

181 Senate Legal and Constitutional Affairs References Committee (n 16) para 4.13.

182 ibid, para 3.42, referring to Amnesty International, Submission 13 to Senate Legal and Constitutional Affairs References Committee (n 116) 4–5.

183 Senate Legal and Constitutional Affairs References Committee (n 116) paras 3.42, 4.13. See also the reports of various human rights organisations, documenting the ill-treatment of asylum seekers and refugees in Malaysia: Human Rights Watch (n 9); Amnesty International, ‘Abused and Abandoned’ (n 9); Amnesty International, ‘Human Rights at Risk’ (n 9); UN Human Rights Council, ‘Report of the Working Group on Arbitrary Detention: Mission to Malaysia’ (8 February 2011) UN Doc A/HRC/16/47/Ad.2.

184 ‘Five Asian Nations among Worst Violators of Refugee Rights, US NGO Says’ (20 June 2008) <http://reliefweb.int/node/270878>.

185 Lisbon Expert Roundtable (n 114) para 15(i).

186 Migration Act 1958 (Cth), s 198A(3)(a)(iii).

187 Australia–Malaysia Arrangement (n 1) cl 6.

188 UNHCR, ‘2011 UNHCR Country Operations Profile: Malaysia’ (2011) <http://www.unhcr.org/pages/49e4884c6.html>.

189 UNHCR, ‘UNHCR Global Report 2010: Malaysia’ <http://www.unhcr.org/4dfdbf5516.html>.

190 Australia–Malaysia Arrangement (n 1) cl 12(2).

191 ibid, cl 8(2).

192 CRC, art 3.

193 CRC, art 18.

194 Australian Human Rights Commission, ‘Submissions on Behalf of the Australian Human Rights Commission (Intervening)’ (17 August 2011) in Plaintiff M70 (n 13) para 7.

195 Senate Legal and Constitutional Affairs References Committee (n 116) para 4.24.

196 ibid, para 4.26.