The High Court’s majority decision against the Minister for Immigration and Citizenship is a triumph for international law on the Status of Refugees, but an encroachment on the Australian political process.
The appellants, two people who arrived in Australia irregularly by boat seeking refugee protection, persuaded the High Court to restrain the Minister for Immigration from deporting them to Malaysia.
The background was a political campaign in opposition to the ‘Pacific Solution’ of the previous conservative government. Kevin Rudd, elected as Labor Prime Minister in 2007, vowed to end it and did. Since being elected, the Australian Labor Government has scrambled for a solution that did not involve the ‘Pacific’ locations of Nauru or Papua New Guinea used by the previous government. It announced its own ‘Malaysia Solution’ on 25 July 2011. By political decree, the next 800 boat-people (asylum seekers/refugee claimants reaching Australian territory by an unauthorised boat) would be sent to Malaysia and have their rights under the 1967 Refugee Convention assessed there.
The political arrangement proceeded despite Malaysia not recognising the status of refugees in its domestic law. The bargain was that 4,000 persons assessed as genuine refugees in Malaysia would be resettled in Australia. It was an arrangement not legally binding on Australia or Malaysia.
The legal machinery to achieve it pivoted on Section 198A of the Migration Act, enacted by the previous Commonwealth government.
(1) 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).
(2) The power under subsection (1) includes the power to do any of the following things within or outside Australia:
(a) place the person on a vehicle or vessel;
(b) restrain the person on a vehicle or vessel;
(c) remove the person from a vehicle or vessel;
(d) use such force as is necessary and reasonable.
(3) The Minister may:
(a) declare in writing that a specified 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; and
(b) in writing, revoke a declaration made under paragraph (a).
The Immigration Minister made the section 198A declaration in regard to Malaysia, swearing to the High Court that –
“I formed a clear belief from these discussions that the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers and had begun the process of improving the protections offered to such persons. It was also clear to me that the Malaysian government was enthusiastic about using the transfer of 800 persons under the proposed arrangement as a kind of ‘pilot’ for their new approach to the treatment of asylum seekers generally.”
The joint judgment (of Justices Gummow, Hayne, Crennan and Bell) considered the wording of section 198A(3)(a) resonant of the Refugee Convention and Protocol, implying not just the obligation not to return an asylum seeker to a persecuting country (so called ‘refoulement’) , but also to -
* apply the provisions of the Convention to refugees without discrimination as to race, religion or country of origin;
* accord to refugees within a signatory’s territory treatment at least as favourable as that accorded to its nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children
* accord to a refugee free access to the courts of law
* accord to refugees lawfully staying in its territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances as regards the right to engage in wage-earning employment
* accord to refugees the same treatment as is accorded to nationals with respect to elementary education; and
* accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances.
The Justices noted the Government of Malaysia was not bound to and does not itself recognise the status of refugee in its domestic law and does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees; but generally permits UNHCR to undertake those tasks within its territory.
They concluded that none of the first three criteria stated in s 198A(3)(a), which are basically access to due process and treaty-like protections, was or could be met in the circumstances.
In his separate judgment, Chief Justice French concluded the Minister’s declaration that Malaysia was a safe place to send asylum seekers was unauthorised and affected jurisdictional error. That is, the Minister had misconstrued the relevant criteria and by doing so exceeded his authority to make the declaration.
“The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is “keen to improve its treatment of refugees and asylum seekers”. Nor could a declaration rest upon a belief that the government of the specified country has “made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers” or that it had “begun the process of improving the protection offered to such persons”. Yet the Minister’s affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.”
Likewise Justice Keifel separately wrote -
“Neither the bona fides of the parties to the Arrangement nor the commitment of them to the matters contained in it is in question in these proceedings. It remains the case that Malaysia does not have laws which recognise and protect refugees from refoulement and persecution. Although the Arrangement attempted to address some of the problems which face asylum-seekers in that country, it could not alter that state of affairs.”
Justice Keifel concluded the Minister misunderstood what was required of him when making the declaration, for example, by directing himself to assurances by Malaysia to its future refugee practices.
The dissenter, Justice Heydon, considered the Ministerial declaration made related to Australia’s external affairs, being a decision by a government accountable to Parliament and the political cycle, where it was appropriate for there to be minimal scope for judicial review, noting the danger in Australian courts making pronouncements on other countries’ human rights.
Heydon called the correct test to apply as one of “practical reality and fact” citing the Chief Justice in his 2000 decision for the Federal Court in PETROS ESHO PATTO v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS  FCA 1554 where French did not think being party to the Convention was necessary for a country to be able to afford protection as a ‘safe’ country.
Heydon also cited Al-Zafiry v Minister for Immigration and Multicultural Affairs  FCA 443 for the proposition that “effective protection” did not require that there be any “legally enforceable right” and generally lauded the Federal Court for its interpretation of migration law. He did not smell much if any of the Refugee Convention in the word “protection” as used in section 198A(3)(a)(i)-(iv), emphasising refugee claimants may not be genuine refugees, and to ignore that distinction and import all the Convention protections would create difficulties, such as funding the same social security entitlements for refugee claimants as given to citizens required by article 24 of the Refugee Convention.
As for the Minister misunderstanding the question, Heydon wrote:
“The plaintiffs also said that the Minister asked the wrong question in failing to consider what the existing position in Malaysia was, as distinct from some possible turn away from that position in the future. This criticism is misplaced. The time of the relevant state of affairs is the time the transferees arrive in the declared country. No earlier time has any significance. So far as the Minister spoke of shifts in the thinking of the Malaysian Government, for example, which might lead to changes in future, he was directing himself to that time.”
Robert J Garvey SOLICITOR is a Queensland commercial and private client legal practice and migration agency (1172692).
firstname.lastname@example.org | Tel +61 7 34252299 | Fax +61 7 34252288 |PO Box 177 Dayboro Qld 4521 Australia | Skype: robertgarvey
Constitutional rob on 03 Sep 2010
As a result of the hung parliament, the Governor-General Quentin Bryce sought advice about any legal impediment to exercising her constitutional discretion to resolve the uncertainty, especially arising from the perception she may favour the ALP as her son-in-law is the Honourable Bill Shorten MP.
Solicitor General Stephen Gageler SC gave his opinion on 26 August 2010. It is, in summary, that perception of bias or conflict of interest raises no legal barrier for the Governor-General. His reasoning is simple – it is necessary and critically important that the reserve powers can be exercised, especially in a politically charged impasse.
He noted the Queen’s instructions in her current letters patent allows for some of the Governor-General’s functions to be vested temporarily in an administrator and authorises the Governor-General to appoint a deputy. That the Australian constitution specifically allows such deft movements of reserve power had no impact on Mr. Gageler’s view of it.
Mr. Gageler’s opinion is unqualified in that the Governor-General’s connections and relationships cannot exclude or in any way impede their exercise of the functions of office. No mention is made of impairments beyond questionable connections or relationships, such as the precedent set by Dr Peter Hollingworth ceasing to function as Governor General on 15 May 2003 to defend a civil charge of rape.
It is remarkable, but understandable, that the Governor General has legal immunity from allegations of bias or conflict of interest. In the political tumult of the Governor-General making a deliberated decision there should be no legal appeal grounded in bias or conflict of interest, but more politics.