Plaintiff M70/2011 v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judge: French CJ.,Gummow,Hayne,Crennan,Bell JJ,Heydon J.,Kiefel J.
• Judgment Date: 31 August 2011
• Neutral Citation: [2011] HCA 32,2011-0831 HCA A
• Court: High Court
• Docket Number: Matter No M70/2011
• Date: 31 August 2011

Plaintiff M70/2011

Plaintiff

and

Minister for Immigration and Citizenship &Anor

Defendants

Plaintiff M106 of 2011 by his Litigation Guardian, Plaintiff M70/2011

Plaintiff

and

Minister for Immigration and Citizenship&Anor

Defendants

[2011] HCA 32

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, and Bell JJ

Matter No M70/2011

Matter No M106/2011

HIGH COURT OF AUSTRALIA

Plaintiff M70/2011 v Minister for Immigration and Citizenship

Plaintiff M106 of 2011 v Minister for Immigration and Citizenship

Citizenship 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 ..

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)

ORDER

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.

French CJ.

Introduction

1 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’).

2 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.

3 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.’

4 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.

5 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).

6 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.

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.

8 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...