A. Introduction
On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an ‘Arrangement’ for the transfer of asylum seekers.Footnote 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.Footnote 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’.Footnote 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’.Footnote 4 The Government also made clear that those transferred to Malaysia would ‘go to the back of the [asylum] queue’.Footnote 5
While the Australian Government described the deal as a ‘true burden-sharing arrangement in line with the principles of collective responsibility and cooperation’,Footnote 6 refugee and human rights advocates labelled it ‘ill-conceived’Footnote 7 and a ‘human rights disaster’.Footnote 8 Of particular concern was Malaysia's extensive record of ill-treatment of refugees, including arbitrary detention, deprivation of basic services and their lack of status under Malaysian law.Footnote 9 The Arrangement was widely criticized for failing to respect refugees' rights,Footnote 10 promoting the erosion of protection for refugees in the Asia-Pacific region,Footnote 11 and placing Australia in breach of its obligations under international refugee law and human rights law, in particular the 1951 Convention relating to the Status of Refugees (Refugee Convention).Footnote 12
Following a successful challenge to the High Court of Australia,Footnote 13 which found that the Arrangement was unlawful under the Migration Act 1958 (Cth), the Australian Government introduced brazen legislative changes to enable it to proceed.Footnote 14 However, in a minority Parliament, the Bill could not pass without multi-party support. Rather than face defeat on the floor of Parliament, the Government withdrew the Bill from Parliament's agenda on 13 October 2011.Footnote 15 Although the Government accepts that it cannot proceed with offshore processing in Malaysia at present, this remains its official policy should legislative change become possible.
This article examines the background to the Arrangement and the implications of the High Court's decision for the future development of Australian refugee law and policy. In particular, it analyses the international law dimensions of the judgment relating to the reception, processing and protection of asylum seekers and refugees.
1. Background
The Australia–Malaysia Arrangement is not the first example of Australia engaging other States in the region to assist in its management and processing of asylum seekers. The conservative Howard Government (1996–2007) developed a policy of offshore processing for asylum seekers arriving in certain Australian territories without a valid visa (overwhelmingly ‘boat people’).Footnote 16 In 2001, the ‘Pacific Solution’ saw the excision of almost 5,000 islands and coastal ports from Australia's migration zoneFootnote 17 and the introduction of section 198A of the Migration Act, which provided that an ‘unlawful non-citizen’ entering an ‘excised’ area was to be detained and taken to a ‘declared country’, at that time Nauru or Papua New Guinea. The domestic legal effect of the Pacific Solution was to render certain Australian islands ‘outside’ Australia for the purposes of lodging visa applications, thus preventing asylum seekers arriving there from applying for protection visas.Footnote 18 They were precluded from pursuing legal proceedings against the Australian Government in relation to their status as ‘unlawful non-citizens’, the lawfulness of their detention or their transfer to a declared country.Footnote 19 The policy was widely condemned as an abrogation of Australia's responsibilities to process people onshore and an abuse of human rights.Footnote 20 It effectively led to refugee warehousing in remote locations, causing significant psychological distress to many of those held there.Footnote 21
Although processing in declared countries was conducted by Australian immigration officials, sometimes in conjunction with UNHCR, the Pacific Solution separated the process for recognising Convention refugees from the granting of protection visas. Whereas people found to be Convention refugees within Australia received protection visas, those declared to be refugees offshore had no assurance that they would ever receive a visa to settle in Australia or anywhere else.Footnote 22 Furthermore, those who had their refugee claims rejected were denied procedural protections such as independent merits and judicial review.
From 2001 to 2008, the numbers of boat arrivals in Australia dropped from a peak of 5,516 persons (in 2001) to an average of less than 100 per year.Footnote 23 This led supporters of the Pacific Solution to conclude that it was an effective strategy to ‘stop the boats’ and disrupt associated people smuggling networks. While such an analysis is far too simplistic and fails to take into account external factors which led to a decline in asylum numbers worldwide at this time,Footnote 24 such sentiments continue to have potency in Australian political debates. Indeed, a revamped Pacific Solution remains the Opposition's policy.Footnote 25
The Pacific Solution ended in 2008, with the new Labor Government stating that it had been a ‘cynical, costly and ultimately unsuccessful exercise’.Footnote 26 In February 2008, the (then) Immigration Minister, Senator Chris Evans, explained:
Quite frankly, it seems to me that people were just left to rot for long periods because the government could not deliver on its promise to send them somewhere else. My advice is that the options for third country resettlement are extremely limited. We are not likely to get takers.Footnote 27
Nevertheless, the Labor Government has continued to provide extensive funding to third countries (notably Indonesia and Papua New Guinea) for the interception, detention and management of asylum seekers in an effort to prevent them from seeking protection in Australia.Footnote 28
Australia has also utilized the Bali Process—an intergovernmental network in the Asia-Pacific for combating people smuggling, trafficking and related transnational crimes—to advocate for the creation of a regional protection framework as ‘a more effective way for interested parties to cooperate to reduce irregular movement through the region’.Footnote 29 The Asia-Pacific region is characterized by very low accession rates to the Refugee Convention, its Protocol and other international human rights treaties, and there is no regional human rights treaty or complaints mechanism.Footnote 30 While UNHCR and leading refugee NGOs generally support greater regional cooperation, they do so on the basis that any new framework must genuinely foster better protection within the region as a whole and not deflect Australia's responsibilities on to other States.Footnote 31
As part of the Bali Process, the Australian Government announced its plans in early 2011 to establish a regional processing centre for asylum seekers in East Timor. Since the proposal was publicized before the East Timorese Government had agreed to it, details were scant and experts expressed significant concerns about the ability of a poor, developing country such as East Timor to house such a facility. In particular, many regarded it as Australia using the country as a dumping ground for people it had a responsibility to process and protect.Footnote 32
When East Timor formally rejected the proposal, the Australian Government desperately sought an alternative. Politically, the Government was embarrassed that its first foray into a new regional processing arrangement had collapsed, especially since ‘solving’ the asylum issue had been a major electoral promise. The Opposition continued to attack the Government for its lack of a workable asylum policy, exhorting a return to the ‘successful Howard model’ instigated under the Pacific Solution.Footnote 33 The Government, having vowed never to adopt that policy, nevertheless began negotiations with Papua New Guinea about the possibility of re-opening facilities on Manus Island.Footnote 34 It was in this context that it turned to Malaysia as a potential new partner.
Before examining the Australia–Malaysia Arrangement in detail, it is important to bear in mind that during the first six months of 2011, when these discussions were underway, there were 1,675 boat arrivals in Australia.Footnote 35 These numbers are minute in global terms and represent an almost 50 per cent decrease from the previous year.Footnote 36 Nevertheless, the issue of asylum is intensely political in Australia and one which has the potential to determine whether or not the Government retains key marginal seats in the next election. There are widespread misunderstandings in the Australian community about why people seek asylum and little awareness about the difference between asylum seekers, refugees and migrants.Footnote 37 The near-hysterical fear about border security and the rhetoric by both major political parties that asylum seekers arriving by boat are ‘illegals’ and ‘queue jumpers’ means that many voters believe such people have no right to be in Australia, and they therefore support draconian measures to ‘stop the boats’.Footnote 38
2. The Arrangement
Under the terms of the 2011 Australia–Malaysia Arrangement, 800 asylum seekers unlawfully in Australia were to be transferred to Malaysia without a determination of their protection claims. Once in Malaysia, they were to be referred to UNHCR where they would ‘have to wait alongside more than 90,000 other asylum seekers for their claims to be assessed’.Footnote 39 The 4,000 resettlement places offered by Australia in return were to be granted over a four year period to refugees who had arrived in Malaysia prior to the signing of the Arrangement, had been granted a UNHCR refugee identification card, and satisfied Australia's requirements for resettlement.Footnote 40 The Arrangement was to be supported by a set of Operational Guidelines detailing the procedures and respective responsibilities of the parties in arranging for the transfer of asylum seekers.Footnote 41 The costs of implementing the Arrangement were to be borne by Australia.Footnote 42
The Arrangement was not a treaty but a bilateral political agreement—it stipulated it was ‘a record of the Participants’ intentions and political commitments but is not legally binding on the Participants'.Footnote 43 Its preamble recognized ‘the sovereignty of states in determining their own immigration policy and laws relating to immigrants',Footnote 44 and many of its provisions were subject to the ‘laws, rules, regulations and national policies from time to time in force in each country’.Footnote 45 Putting the Arrangement into practice therefore would have depended on the parties' implementation of the necessary laws, policies and procedures in their respective domestic jurisdictions.
The relevant legal framework in Australia was provided by the Migration Act 1958 (Cth). In addition to regulating Australia's immigration programmes, this statute governs the reception, processing and removal of people seeking asylum.Footnote 46 The group of asylum seekers who would have been subject to transfer under the Arrangement—those arriving unlawfully by boatFootnote 47—are described in the Migration Act as ‘offshore entry persons’.Footnote 48 As discussed above, by virtue of section 46A of the Act, offshore entry persons are prohibited from applying for a protection visa in AustraliaFootnote 49 and from having their refugee claims assessed in the same manner as onshore arrivals (who typically arrive by plane). Instead, they must rely on an administrative regime in which the discretionary and non-compellable power of the Minister for Immigration may be enlivened to grant a person a protection visa if the Minister considers that it is in the ‘public interest’ to do so.Footnote 50 In practice, the ‘public interest’ in this context has been determined by reference to Australia's obligations under international refugee law, and a visa is granted where the Minister (or, in practice, an immigration officer) is satisfied that the person meets the definition of a refugee. However, the effect of these provisions is to make asylum seekers arriving in Australia by boat subject to a largely discretionary regime of protection, with limited procedural safeguards.Footnote 51
Immediately following the signing of the Australia–Malaysia Arrangement, the Australian Minister for Immigration, Chris Bowen, issued a declaration authorising the removal to Malaysia of the next 800 offshore entry persons to arrive in Australian territorial waters. In issuing the declaration, the Minister purported to act under powers conferred on him by section 198A(3)(a) of the Migration Act, which provides:
The Minister may 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.Footnote 52
A declaration made by the Minister under this section triggers a corresponding power of removal under section 198A(1) of the Act, which authorises an officer of the Department to take an asylum seeker, by force if necessary, to a country which is the subject of the declaration.Footnote 53
B. The Case: Plaintiff M70/2011 v Minister for Immigration and Citizenship
On 7 August 2011 an application was made to the High Court of Australia challenging the legality of Australia–Malaysia Arrangement.Footnote 54Plaintiff M70/2011 v Minister for Immigration and Citizenship (Plaintiff M70) concerned an application brought by two asylum seekers who had arrived in Australian territorial waters by boat from Indonesia on 4 August 2011.Footnote 55 Arriving just over a week after the signing of the Arrangement, both plaintiffs were detained pending their removal to Malaysia.Footnote 56 Plaintiff M70 was an adult, and Plaintiff M106 was a 16 year old unaccompanied minor. Both were citizens of Afghanistan and claimed to have a well-founded fear of persecution in Afghanistan for a Convention reason. In addition, they claimed that they feared persecution in Malaysia on account of their religion as Shi'a Muslims.Footnote 57
As a dualist system, Australia's international legal obligations have no direct effect within the domestic sphere unless and until they are implemented by domestic legislation.Footnote 58 The applicants therefore sought an injunction against their removal from Australia on the grounds that the declaration by the Minister under section 198A(3)(a) of the Act was outside the power conferred on the Minister by that Act, and thus invalid.
The basis of their application was that the criteria for the Minister's declaration set out in section 198A(3)(a)(i)–(iv) of the Act—concerning the provision of protection and access to adequate asylum procedures—were ‘jurisdictional facts’. In other words, they argued that the exercise of the Minister's power to issue the declaration was dependent upon each of the four criteria being satisfied by the country which was the subject of the declaration. The plaintiffs submitted that, in the case of Malaysia, these criteria were not and could not be satisfied, Malaysia being neither a signatory to the Refugee Convention nor having any domestic legal regime for refugee protection.Footnote 59
In response, the Minister submitted that ‘it is the existence of the Minister's declaration itself, not the truth of the content of that declaration, that engages the operation of [the power to remove the asylum seekers]’.Footnote 60 He further argued that the protections and access described by the criteria did not require the existence of any legal obligation to provide such protection; rather, all that was required for the Minister's declaration to be valid was that he make, in good faith, an evaluative judgment that Malaysia's treatment of asylum seekers and refugees would in practice fulfil the relevant criteria.Footnote 61
The central question before the High Court was therefore one of statutory construction: what was the correct interpretation of the criteria set out in section 198A(3)(a)(i)–(iv) of the Act, and what limits did those criteria place on the Minister's exercise of the declaratory power conferred under that section? Once the correct construction of those criteria had been determined, the court was required to assess whether or not the Minister's declaration with respect to Malaysia satisfied those criteria.
By a 6:1 majority, the High Court found in favour of the plaintiffs, holding that the Minister's declaration was without power and thus invalid, restraining the Commonwealth from taking either plaintiff to Malaysia. The lead judgment of the case was written by a four judge majority;Footnote 62 French CJ and Kiefel J published separate but concurring judgments, largely agreeing with the majority; and Heydon J dissented.
1. The source of the Minister's power
As a preliminary matter, all six concurring judges held that the Minister's declaratory power under section 198A(3)(a) was the only source of power that could be relied on to authorise the removal of asylum seekers to Malaysia under the Arrangement.Footnote 63 Importantly, the court held that the Government could not rely on the more general power of removal under section 198(2) of the Act without first considering (and rejecting) the asylum seekers' protection claims.Footnote 64 The majority stated that to hold otherwise would render section 198A redundant, and would also ‘undermine the clear legislative intent behind section 198, which was to uphold Australia's international obligations’.Footnote 65
2. Previous third country transfer arrangements
The High Court also rejected arguments that the relevant provisions of the Migration Act should be interpreted in light of previous arrangements between Australia and third countries for the transfer of asylum seekers. The Minister submitted that the enactment of section 198A in 2001 had been with a view to facilitating a similar arrangement with Nauru, at that time not a party to the Refugee Convention and without any domestic law providing for the determination or recognition of refugee status.Footnote 66 Accordingly, he argued, this augured against a reading of the section which would require the existence of legal protections in the destination country.
All six concurring judges held that the previous arrangement with Nauru did not provide a basis for interpreting the Act. The majority referred to the significant differences between the respective arrangements, noting in particular that the Australia–Nauru Arrangement created binding obligations between the two States and that under its terms, Australia itself was to provide the relevant protections.Footnote 67 In any event, all six concurring judges concluded that the past invocation of section 198A to support a declaration in relation to Nauru ‘cannot determine the construction of the section’.Footnote 68
3. The requirements for the Minister's exercise of power
The six concurring judges held that the criteria set out in section 198A(3)(a)(i)–(iv) were indeed ‘jurisdictional facts’, the satisfaction of which was a pre-condition to the lawful exercise of the Minister's power to issue a declaration authorising the asylum seekers’ removal to Malaysia. The joint judgment of the majority (Kiefel J concurring) held that the jurisdictional fact posited by section 198A(3)(a) was the destination State's satisfaction of the criteria established therein. Failure to establish the existence of the protections described by those criteria would render the Minister's declaration invalid. French CJ, on the other hand, held that the Minister's formation in good faith of a belief that the criteria were satisfied would be sufficient to enliven the power.Footnote 69 He nevertheless held that a misconstruction by the Minister of those criteria would constitute a jurisdictional error and render the declaration invalid.Footnote 70
All six concurring judges further agreed that the protections afforded to asylum seekers by those criteria were legal, and not just practical, in nature; that is, for the criteria to be satisfied by Malaysia, the relevant protections would have to be provided pursuant to a legal obligation to do so, not only as a matter of State practice or intention.Footnote 71 According to the majority,
[c]ontrary to the submissions of the Minister and the Commonwealth, the matters stated in s 198A(3)(a)(i) to (iii) are not established by examination only of what has happened, is happening or may be expected to happen in the relevant country. The access and protections to which those sub-paragraphs refer must be provided as a matter of legal obligation.Footnote 72
In the majority's view, such an obligation could be provided as a matter of either international or domestic law.Footnote 73
French CJ emphasized that it was the temporal aspect of the power, to authorize not only present but future removal of persons to another country, that signified the need for an enduring legal framework.Footnote 74
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.Footnote 75
Having agreed that the existence of legal protection in the destination country was a necessary requirement for satisfaction of the section 198A(3)(a) criteria, the concurring judges differed in their approach to the relevance of the protections offered by the country in practice. French CJ held that an inquiry into State practice was an additional requirement of the Minister's power, noting that ‘[c]onstitutional guarantees, protective domestic laws and international obligations are not always reflected in the practice of states’.Footnote 76 Kiefel J also held that a country's practices may be relevant, however stressed that ‘a positive assessment of the practical provisions which are made for refugees in a country cannot replace the requirement that the country has obliged itself, through its laws, to provide the necessary recognition and protection’.Footnote 77
The rest of the majority accepted for the purposes of argument that the criteria for removal under section 198A(3)(a) necessitated an inquiry into what actually happens in the destination country,Footnote 78 but found it unnecessary to decide the question. They were also keen to stress that ‘because it is not necessary to decide whether any of the criteria stated in s 198A(3)(a) contains any factual element, nothing in these reasons should be understood as expressing any view about whether Malaysia in fact “meets relevant human rights standards”, let alone whether asylum seekers in that country are treated “fairly” or “appropriately” ’.Footnote 79
4. Did the Minister's declaration satisfy the relevant criteria?
The six concurring judges held that the Minister did not and could not establish the relevant jurisdictional facts under section 198A(3)(a) and thus the declaration authorising the removal of asylum seekers to Malaysia was invalid.Footnote 80 The decision rested in large part on the Minister's failure to appreciate the necessity of a legal framework in the destination country, and the corresponding lack of any such framework in Malaysia.
It was an agreed fact between the parties that Malaysia had undertaken no legal obligation, whether under domestic or international law, to provide the relevant protections and access to asylum procedures described in section 198A(3)(a).Footnote 81 Malaysia does not recognize refugee status in its domestic law, nor is it a signatory to the 1951 Refugee Convention or its 1967 Protocol.Footnote 82 The Australia–Malaysia Arrangement itself did not provide a sufficient framework to ensure such protection for two reasons: first, the Arrangement was non-binding and created no obligation under international law;Footnote 83 and secondly, any relevant protections provided under the Arrangement were directed only at the 800 ‘transferees’, and not at other asylum seekers in Malaysia. It was accepted by the parties that the criteria described by section 198A(3)(a) must be interpreted not merely with respect to the asylum seekers subject to removal under the declaration, but to the country itself.Footnote 84
According to the Minister's own submissions, his declaration that Malaysia satisfied the relevant criteria was based on the belief that the Malaysian government had undergone a ‘significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers’ and had ‘begun the process of improving protections offered to such persons’.Footnote 85 In forming this belief, he had taken into account advice from Australia's Department of Immigration and Citizenship and the Department of Foreign Affairs and Trade, his own discussions with Malaysian officials, and the Malaysian government's willingness to enter into the Arrangement.Footnote 86
According to the majority of the court, the substance of the advice to the Minister about conditions for asylum seekers in Malaysia and the agreed facts among the parties confirmed that the relevant protections described under section 198A(3)(a) did not and could not be found to exist.
Where, as in the present case, it is agreed that Malaysia: first, does not recognize 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).Footnote 87
Having construed the relevant jurisdictional fact as the Minister's good faith belief that Malaysia satisfied the criteria, French CJ held that in forming that belief, the Minister had failed to direct his inquiry to the relevant protections—namely legal protections. Indeed, the Minister himself conceded that if his power to authorize removal to Malaysia depended upon an assessment of the laws in effect in Malaysia, then he had erred in this case.Footnote 88 Thus the Minister fell into jurisdictional error and the declaration was invalid.Footnote 89 Kiefel J concluded both that the Minister had misunderstood the requirements of section 198A(3)(a) and that the facts necessary for making the declaration did not exist and therefore the declaration was invalid.Footnote 90
Heydon J was the sole dissenting judge, holding that the Minister's declaration under section 198A(3) was valid, and therefore denying the relief sought by the plaintiffs. Like French CJ, Heydon J held that the jurisdictional fact required under section 198A(3)(a) pertained to the Minister's formation of a good faith evaluative judgment of the existence of the criteria.Footnote 91 However, unlike the six concurring judges, he held that the language of those criteria suggested only the existence of practical protections, not legal obligations.Footnote 92 In his view, the Australia–Malaysia Arrangement and its Operational Guidelines, while not legally binding, were sufficient to support an inference that the transferees would receive sufficient protection in Malaysia.Footnote 93
5. Unaccompanied minors and the Minister's role as guardian – Plaintiff M106
Having struck down the Minister's declaration as invalid, the High Court then briefly considered additional arguments put forward by Plaintiff M106 in relation to his status as an unaccompanied minor. Under section 6 of the Immigration (Guardianship of Children) Act 1946 (Cth) (IGOC Act), the Minister for Immigration is the guardian of any non-citizen child who enters Australia without the care of a parent or other relative, and who has the intention of becoming a permanent resident.Footnote 94Section 6A(1) of the IGOC Act provides that ‘[a] non-citizen child shall not leave Australia except with the consent in writing of the Minister’.Footnote 95
The six concurring judges held that the Minister's failure to give consent in writing was a further restriction on the government's ability to remove Plaintiff M106 from Australia.Footnote 96 The requirement that the Minister provide written consent for the removal of a child is significant under Australian administrative law, as it brings the decision to give such consent within the scope of the Administrative Decisions (Judicial Review) Act 1977 (Cth), thus requiring the Minister to give reasons for the decision and enabling the decision to be reviewed by a court.Footnote 97
Having determined that the Minister's failure to provide written consent prevented the plaintiff's removal, the court found it unnecessary to examine the content of the Minister's duties as guardian.Footnote 98 It did note, however, that on the facts agreed between the parties, no assessment as to whether removal to Malaysia was in the child's best interests was envisaged, and, in fact, according to departmental records, any such assessment was to be undertaken in Malaysia itself.Footnote 99 Heydon J again dissented on this point, holding that the Minister had clearly demonstrated by his conduct that he consented to the taking of the minor from Australia.Footnote 100
C. Analysis: international law issues arising out of the case
While Plaintiff M70 was primarily a case about domestic statutory construction, the High Court's decision reflects a number of important international law issues regarding the reception, processing and protection of asylum seekers and refugees. The Refugee Council of Australia described the High Court's decision as ‘a monumental one which emphasised the critical importance of legal protections for asylum seekers, even in circumstances where Australia is trying to expel them’.Footnote 101 The court's emphasis on the need for legal protections provides a strong endorsement of the importance of international instruments such as the Refugee Convention and Protocol, in particular in the context of regional cooperation.
The decision also demonstrates that, despite Australia's dualist legal system, it does contain mechanisms for the limited recognition and application of international law, in particular through common law principles of statutory interpretation which provide that a statute is to be interpreted so far as is possible in conformity with Australia's international obligations and other established rules of international law.Footnote 102 This is particularly relevant in interpreting the Migration Act, which the High Court has previously said ‘contains an elaborated and interconnected set of statutory provisions directed to the purpose of responding to the international obligations which Australia has undertaken in the Refugees Convention and the Refugees Protocol’.Footnote 103 In Plaintiff M70, Kiefel J explicitly stated that the court's construction of section 198A(3)(a) ‘most closely accords with the fulfilment of Australia's Convention obligations and it is to be preferred to one which does not’.Footnote 104 French CJ also emphasized that ‘the ambit and operation of a statutory power to remove an unlawful non-citizen from Australia must be understood in the context of relevant principles of international law concerning the movement of persons from state to state’.Footnote 105
While the protections described by section 198A(3)(a) of the Migration Act do not provide a comprehensive account of Australia's international legal obligations in relation to refugees and asylum seekers, all seven High Court judges accepted that the legislative purpose behind the provision was the implementation, at least in part, of Australia's obligations under the Refugee Convention.Footnote 106 The majority stated that the criteria stipulated in section 198A(3)(a)(i)–(iv) ‘must be understood as referring to access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol’,Footnote 107 and all six concurring judges discussed the nature and scope of those obligations in their decisions. The case is therefore important in illustrating elements that are required for the lawful cooperation between States under international refugee law, as well as the minimum obligations that States owe to asylum seekers within their own territory or jurisdiction.
1. Responsibility sharing under international refugee law
The need for international cooperation and responsibility sharing in protecting refugees has been repeatedly stressed by the UN General Assembly and UNHCR's Executive Committee.Footnote 108 It is recognized in the preamble to the 1951 Convention, which recognizes that ‘the grant of asylum may place unduly heavy burdens on certain countries, and that a satisfactory solution of a problem of which the United Nations has recognized the international scope and nature cannot therefore be achieved without international co-operation’. It accordingly expresses ‘the wish that all States, recognizing the social and humanitarian nature of the problem of refugees, will do everything within their power to prevent this problem from becoming a cause of tension between States’, and exhorts them to ‘act in concert in a true spirit of international co-operation in order that these refugees may find asylum and the possibility of resettlement’.Footnote 109
Yet despite their obvious desirability, there are serious practical challenges in ensuring that so-called responsibility sharing arrangements do not undermine the important protections provided for by the international refugee regime. As refugee law scholars have pointed out in relation to the Australia–Malaysia Arrangement, ‘great care needs to be taken to ensure that “co-operation” does not operate as a facade behind which violations of international law are permitted to take place’.Footnote 110
The risks inherent in cooperative refugee protection arrangements are particularly salient in a region such as the Asia-Pacific, which has one of the lowest rates in the world of accession to international refugee and human rights instruments.Footnote 111 As refugee law experts have noted, ‘accession to the Refugee Convention matters: it represents a binding commitment by a State to respect the provisions of the Convention and to implement those provisions in practice.’Footnote 112 In Plaintiff M70, Kiefel J remarked that while ‘[i]t may not be necessary that a country be a party to the Convention in order that it recognise and protect refugees … it is more likely that a country's domestic laws will provide for that recognition and protection if they are a Contracting State’.Footnote 113
The importance of accession in the context of responsibility sharing arrangements was emphasized by UNHCR's 2002 Lisbon Expert Roundtable, whose ‘Summary Conclusions on the Concept of “Effective Protection” in the Context of Secondary Movements of Refugees and Asylum Seekers’ emphasized that accession to the Refugee Convention and/or its Protocol is essential where a State proposes to transfer of asylum seekers to another State, ‘unless the destination country can demonstrate that the third State has developed a practice akin to the 1951 Convention and/or its 1967 Protocol’.Footnote 114 As accepted in Plaintiff M70, these conditions are not met by Malaysia. Indeed, even those who have been recognized as refugees in Malaysia by UNHCR are still regarded as unlawful immigrants under Malaysian law.Footnote 115
The imperative to consider Australia's international obligations was also recognized by an inquiry into the Australia–Malaysia Arrangement by the Australian Senate Legal and Constitutional Affairs Committee, which examined the consistency of the Arrangement with Australia's international obligations.Footnote 116 The Senate Committee found that in concluding the Arrangement, the Australian Government ‘completely ignored that Malaysia is not a party to the Refugee Convention‘Footnote 117 and recommended that ‘at a minimum, the Australian Government should meet the Prime Minister's previous commitment to “rule out” sending asylum seekers who travel to Australia by boat to countries which are not a signatory to the Refugee Convention’.Footnote 118
Accession to international instruments alone, however, is insufficient to guarantee the legality of responsibility sharing arrangements. As French CJ noted in Plaintiff M70, ‘protective domestic laws and international obligations are not always reflected in the practice of states’.Footnote 119 Even within the European Union, which is, in comparison to the Asia-Pacific region, relatively homogenous in terms of the international legal obligations which States have undertaken, the attempt to create a Common European Asylum System has been fraught with problems. A recent decision by the European Court of Human Rights that Greece is not a safe country for asylum seekers, despite its being a signatory to the Refugee Convention and other key international and regional human rights treaties, indicates that even where common legal and procedural standards under both regional and international law have been adopted, practices on the ground can vary considerably.Footnote 120
2. Third country guarantees
Australia alone bears responsibility for the fulfilment of its international obligations, notwithstanding any bilateral arrangement with Malaysia.Footnote 121 Australia's capacity to ensure Malaysia's adherence to its undertakings under the Arrangement, or to monitor the treatment of the 800 asylum seekers whose transfer was proposed, would have been extremely limited. The Arrangement itself contained no provision for such monitoring, and the absence of any such obligations on Malaysia under international law would have meant that affected individuals could not have made complaints to the human treaty monitoring bodies, such as the Human Rights Committee, since Malaysia is not a party to the relevant treaties. Thus, although Malaysia expressed its intention under the Arrangement to adhere to certain standards of treatment, including to ‘respect the principle of non-refoulement’,Footnote 122 this could not absolve Australia of its obligations with respect to the asylum seekers it proposed to transfer there.
Political assurances are an insufficient guarantee that international obligations will be respected.Footnote 123 According to the Michigan Guidelines on Protection Elsewhere, such assurances ‘do not amount to a sufficient basis for a lawful transfer under a protection elsewhere policy. A sending state must rather inform itself of all facts and decisions relevant to the availability of protection in the receiving state.’Footnote 124 In Plaintiff M70, the High Court agreed that neither the terms of the Australia–Malaysia Arrangement, nor the Minister's belief that the Malaysian Government was ‘committed to a new approach’ and ‘keen to improve its treatment of refugees and asylum seekers’,Footnote 125 were sufficient guarantees of the protection asylum seekers would receive in Malaysia.
The Senate Committee similarly recognized the insufficiency of political guarantees by third countries that they would comply with human rights standards. The Committee referred to numerous submissions received during the inquiry which expressed concern at the ‘almost aspirational’ nature of the Arrangement, which relied on political commitments rather than binding legal obligations.Footnote 126 These submissions agreed that it was not enough for the Australian Government to simply ‘be satisfied a country will act in a certain manner’.Footnote 127 The Committee concluded that:
At its most basic level, the arrangement is inadequate and unacceptable because it is extraordinarily imprecise in nature, and includes the use of vague language and terms which are not defined and which appear only to reflect the “political commitments” of the parties. Since the Malaysian Arrangement is non-legally binding, there is absolutely no means to enforce the obligations of the parties under the arrangement.Footnote 128
In particular, the Committee noted that the Australian Government would be ‘powerless’ if it found that Malaysia had not complied with the Arrangement: ‘there are no steps which can be taken by the Joint Committee or the Advisory Committee—the only bodies likely to be providing any form of oversight or monitoring of the arrangement—in the event that there is any breach of the arrangement.’Footnote 129 It was ‘simply not adequate’ for the Australian Government to assert that the Arrangement was entered into in good faith, or to rely on the clause providing for ‘the resolution of differences’, which provided only that the parties consult with one another.Footnote 130
3. Scope of obligations
a) Non-refoulement
The principle of non-refoulement is the cornerstone of international refugee protection. It requires States to ensure that people are not sent to any place where there is a real risk that they would face—or be sent elsewhere to face—persecution, arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman or degrading treatment or punishment. The principle is enshrined in article 33 of the Refugee Convention as well as numerous other international human rights instruments,Footnote 131 and it is generally considered to be a principle of customary international law.Footnote 132
The prohibition on refoulement requires States not only to refrain from sending asylum seekers to the country in which persecution is feared, but also to ensure that they are not sent to any other country which might return them to such harm. As the House of Lords explained,
[f]or a country to return a refugee to a state from which he will then be returned by the government of that state to a territory where his life or freedom will be threatened will be as much a breach of Article 33 as if the first country had itself returned him there direct. This is the effect of Article 33.Footnote 133
It is also important to consider whether the standards of treatment within Malaysia could themselves breach the principle. If, for example, the conditions in which asylum seekers were forced to live in Malaysia were inhuman or degrading, then Australia would have violated the principle of non-refoulement by exposing them to such treatment. This was noted by Kiefel J, who stated that the principle of non-refoulement prohibits governments from returning asylum seekers ‘to the country from which they have fled and to any other country where would be exposed to the same harm’.Footnote 134 Indeed, the applicants in Plaintiff M70 claimed to fear persecution in Malaysia on account of their religious beliefs.Footnote 135
b) Individual assessment of protection needs
Blanket designations of particular countries as ‘safe’ are necessarily inconsistent with the principle of non-refoulement, which requires a case-by-case assessment that a particular country is safe for a particular individual.Footnote 136 This points to one of the fundamental problems of the Arrangement—the lack of assessment by Australia of individuals’ protection needs prior to transfer.
Although neither the Refugee Convention nor its Protocol formally stipulates procedures for refugee status determination, it is well accepted that ‘their object and purpose of protection and assurance of fundamental rights and freedoms for refugees without discrimination, argue strongly for the adoption of such effective internal measures’.Footnote 137 The Australian High Court has previously recognized the obligation on States to assess an individual's claim for asylum under the Refugee Convention,Footnote 138 and this point was reinforced in Plaintiff M70.Footnote 139
The mere existence of a refugee status determination system is insufficient evidence to conclude that the principle of non-refoulement will be respected. At a minimum, any refugee status determination system must contain sufficient procedural safeguards to prevent the risk of error and subsequent refoulement. While Kiefel J noted that the establishment of particular procedures is left to the governments of State parties to the Refugee Convention,Footnote 140 UNHCR's Executive Committee has recommended that refugee status determination procedures should satisfy a number of basic requirements in order to be effective. These include respect for the principle of non-refoulement, clear allocation of authority for considering and determining claims, the provision of necessary guidance and facilities to applicants to make their claims, the opportunity for either administrative or judicial review in cases of rejection, and permission for applicants to remain in the country pending the final outcome of their application.Footnote 141
Under the Arrangement with Malaysia, Australia was to establish an ‘appropriate pre-screening assessment mechanism in accordance with international standards before a transfer is effected’.Footnote 142 However, while the pre-screening mechanism purported to ‘ensure both fitness to travel and compliance with Australia's international obligations’,Footnote 143 officers were expressly directed ‘not to assess whether the person was a refugee under Art 1A of the Refugee Convention’.Footnote 144 Australia's failure to assess individuals’ protection needs prior to transfer would have meant that protection against serious harm in Malaysia could not have been guaranteed, and Australia would have been at risk of violating the principle of non-refoulement.
Asylum seekers transferred to Malaysia were to be referred to UNHCR.Footnote 145 The Malaysian government permits UNHCR to conduct refugee status determination on its behalf. The limited resources and capacity of UNHCR mean it ‘cannot be expected to replicate the complex decision-making models—including review processes—which States can construct’,Footnote 146 and given the well-known paucity of procedural safeguards in UNHCR's refugee status determination processes,Footnote 147 it is unlikely that UNHCR's procedures in Malaysia would fulfil the conditions set out by its own Executive Committee. The resulting risk of error means that it cannot be said with certainty that asylum seekers processed in this way are protected from refoulement.
Even if these procedural shortcomings could be overcome, UNHCR is not a State. It does not have jurisdiction over Malaysian territory and thus cannot ensure against the refoulement of asylum seekers from there; indeed, even UNHCR-recognized refugees are considered illegal immigrants under Malaysian law.Footnote 148 Thus, while the principle of non-refoulement is now accepted as part of customary international law, applying to all States irrespective of their treaty ratifications, Malaysia's lack of a domestic refugee status determination procedure means it offers little guarantee against refoulement in practice.Footnote 149
Kiefel J stressed in Plaintiff M70 that the duty to undertake refugee status determination rests with the State itself and cannot be deflected to a non-government agency, such as UNHCR. She held that the language of the Migration Act ‘clearly contemplates the determination of refugee status by the country the subject of the declaration’,Footnote 150 further stating that ‘[t]he requirement that the declared country itself undertake the determination of refugee status has an important consequence, namely, that it is bound to the outcome’.Footnote 151 The majority, while not requiring the State to conduct refugee status determination itself, nevertheless held that access to status determination procedures must be provided either under the State's domestic law, or pursuant to its international obligation allow a third party, such as UNHCR, to undertake such procedures. Importantly, they held that ‘[a] country does not provide access to effective procedures if, having no obligation to provide the procedures, all that is seen is that it has permitted a body such as UNHCR to undertake that body's own procedures for assessing the needs for protection of persons seeking asylum’.Footnote 152
c) Protection of other rights
In addition to protecting refugees from refoulement, another purpose of the Refugee Convention is to set out minimum standards of treatment for refugees. States parties to the Convention must therefore ensure that those standards are met in any country to which a transfer is proposed. While the Minister argued that the criteria set out in section 198A(3)(a) of the Migration Act ‘reflect an understanding that Australia's obligations under the Convention may be limited to non-refoulement’,Footnote 153 the applicants in Plaintiff M70 submitted that the term ‘protection’ used throughout section 198A(3)(a) is a ‘legal term of art’,Footnote 154 including not only protection from refoulement but all of the rights afforded to refugees in the Refugee Convention, as well as the ability to enforce those rights through national courts.Footnote 155
The majority of the High Court largely agreed:
[W]hen s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugees Convention and the Refugees Protocol. Reference has already been made to the non-refoulement obligation imposed by Art 33(1) of the Refugees Convention. But signatories undertake other obligations.Footnote 156
The majority went on to list some of those rights, including access to courts of law,Footnote 157 freedom from discrimination,Footnote 158 and treatment as least as favourable as that accorded to its nationals with respect to employment,Footnote 159 educationFootnote 160 and religious freedoms.Footnote 161 They continued:
The extent to which obligations beyond the obligation of non-refoulement (and the obligations under Art 31 of the Refugees Convention concerning refugees unlawfully in the country of refuge) apply to persons who claim to be refugees but whose claims have not been assessed is a question about which opinions may differ. It is not necessary to decide that question. What is clear is that signatories to the Refugees Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described.Footnote 162
The rights provided for by the Refugee Convention are now supplemented by international human rights law. In discussing the guarantees that must be provided by third States to asylum seekers, the 2002 Lisbon Expert Roundtable stated that respect for fundamental rights by the third State, including freedom from torture or cruel, inhuman or degrading treatment, and the rights to life and liberty, is a requirement of any lawful transfer of asylum seekers.Footnote 163 Thus, as Australian refugee law experts recently emphasized, a destination State's ‘human rights record is relevant. This includes assessment of substantive and procedural standards, including questions of remedies, non-discriminatory or equivalent treatment to local nationals, and protection of fundamental human rights’.Footnote 164
The need to ensure that asylum seekers’ rights are protected in the destination State is reflected in section 198A(3)(a)(iv) of the Migration Act, which requires that the State ‘meets relevant human rights standards’ in providing the relevant protections to asylum seekers.Footnote 165 The majority judgment in Plaintiff M70 gave little attention to this requirement, although it noted that its inclusion supported the conclusion that the term ‘protection’ in sub-sections (i)–(iii) meant more than just protection from refoulement.Footnote 166 While Kiefel J's judgment emphasized the connection between section 198A(3)(a) and ‘Australia's Convention obligations of non-refoulement and determination of refugee status’,Footnote 167 she held that the inclusion of ‘relevant human rights standards’ in this section referred to ‘standards required by international law’.Footnote 168
Malaysia is not a signatory to the key human rights treaties, including the ICCPR and ICESCR,Footnote 169 and has limited domestic rights protection mechanisms.Footnote 170 The Australia–Malaysia Arrangement provided that transferees would be ‘treated with dignity and respect and in accordance with human rights standards’Footnote 171 and would enjoy ‘standards of treatment consistent with those set out in the Operational Guidelines at Annex A’,Footnote 172 although the Operational Guidelines themselves made no mention of human rights.
While the Operational Guidelines provided for some assistance to asylum seekers transferred under the Arrangement, including accommodation and financial support for one month after arrivalFootnote 173 and access to education and health services provided privately or by UNHCR,Footnote 174 these were vaguely worded undertakings which suggested a bare minimum of rights protection. Furthermore, much of the assistance provided for by the Operational Guidelines was to be delivered by UNHCR or the International Organization for Migration. The Arrangement was concluded ‘on the basis that UNHCR and International Organization for Migration (IOM) can fulfill the roles and functions envisaged in the Operational Guidelines at Annex A’.Footnote 175 The resources of these organizations, particularly UNHCR, are extremely limited and no provision was made for what would happen in the event that UNHCR or IOM could not fulfil the relevant roles and functions.
Even to the extent that provisions for assistance under the Operational Guidelines did fulfil particular human rights obligations, they remained non-binding and unenforceable under either Malaysian or international law. It is also significant that the Arrangement was envisaged as a four-year agreement,Footnote 176 and once it ceased, it was unclear what treatment asylum seekers transferred pursuant to it would receive.
The lack of human rights guarantees in Malaysia was particularly pertinent given Malaysia's substantial record of ill-treatment asylum seekers. Malaysian law treats refugees and asylum seekers as ‘illegal immigrants’, an offence carrying a penalty of up to six lashes.Footnote 177 They face the possibility of arrest, abuse by immigration officers, detention in squalid conditions, whipping (which qualifies as torture) and other forms of ill-treatment.Footnote 178 Their lack of legal status renders them particularly vulnerable to human trafficking and return to persecution.Footnote 179 Even the country advice of the Australian Department of Foreign Affairs and Trade, on which the Minister for Immigration purported to rely in declaring Malaysia a safe country for asylum seekers, noted that healthcare was generally beyond refugees’ means, that their lack of status impeded access to sustainable livelihoods and that ‘[c]redible allegations have been made regarding inadequate standards in immigration detention centres’.Footnote 180
The inadequate protection of asylum seekers’ human rights within Malaysia formed a substantial part of the Senate Committee's rationale for recommending that the Australian Government abandon the Arrangement. The Committee found that conditions for refugees and asylum seekers in Malaysia were ‘nothing short of appalling with harassment and violence part of the refugee community's daily experience, and the threat of arrest a constant’.Footnote 181 It observed that refugees and asylum seekers were ‘vulnerable to abuse and violence in their homes, in public and at their places of work because they have no rights’.Footnote 182 It paid particular attention to the risk of asylum seekers and refugees being caned in Malaysia, either because they had breached immigration laws or because they had committed other crimes. The Committee also pointed to the regular raids carried out by both stage agents and the People's Volunteer Corps (Ikatan Relawan Rakyat, or RELA) which often involve extortion, intimidation, harassment and abuse of asylum seekers and refugees.Footnote 183 The conditions under which refugees in Malaysia are forced to live has led to the country's ranking as one of the world's worst violators of refugee rights.Footnote 184
d) Asylum / Durable solutions
While the Refugee Convention does not provide an explicit right of enduring asylum, UNHCR has indicated that any transfer of refugees between States must give rise to a genuinely accessible durable solution. The Lisbon Expert Roundtable criteria for effective protection in transfer arrangements include that ‘[i]f the person is recognised as a refugee, effective protection will remain available until a durable solution can be found’.Footnote 185 This is reflected in section 198A(3)(a)(iii) of the Migration Act, which requires that a country to which an asylum seeker may be removed provides ‘protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country’.Footnote 186
Under the Arrangement, transferees determined to be refugees by UNHCR would not have been eligible for any form of durable solution in Malaysia itself, but would have been ‘referred to resettlement countries pursuant to UNHCR's normal processes and criteria’.Footnote 187 While Malaysia permits UNHCR to determine refugee status, UNHCR does not have the ability to grant durable solutions, instead referring refugees to third countries for resettlement. Malaysia hosts some 90,000 refugees and asylum seekersFootnote 188 and in 2010, only around 12,600 of these were referred for resettlement.Footnote 189 The Australia–Malaysia Arrangement expressly stated that the 800 asylum seekers Australia would send to Malaysia would have received ‘no processing advantage’;Footnote 190 indeed, this was part of the deterrence ‘value’ of Malaysia. The very lack of durable solutions was intended to make the Malaysia ‘solution’ a deterrent for those travelling to Australia in search of protection.
e) Children
The Australia–Malaysia Arrangement contained no exceptions for children, other than to stipulate that special procedures for vulnerable cases, including unaccompanied minors, ‘will be developed’.Footnote 191 The international obligations discussed above, relating to the principle of non-refoulement and adherence to international human rights standards, of course apply equally to children as to adult asylum seekers. Additionally, a number of international instruments, including the Convention on the Rights of the Child (CRC), provide particular obligations on States with respect to minors such as Plaintiff M106. Most importantly, articles 3 and 18 of the CRC stipulate that the best interests of the child must be a ‘primary consideration’ in ‘all actions’ concerning children,Footnote 192 and the basic concern of the child's legal guardian.Footnote 193
Arguments about whether transfer to Malaysia would be in Plaintiff M106's best interests were raised in Plaintiff M70 by both the plaintiffs and by the Australian Human Rights Commission, which intervened in the case on the grounds that questions about the Minister's role as guardian of unaccompanied minors involved ‘issues of broad public interest and concern’.Footnote 194 These arguments were grounded in both Australia's international legal obligations, as well as the Minister's role as M106's guardian under the IGOC Act.
As noted above, the High Court found it unnecessary to decide these matters, having already determined the Arrangement to be unlawful. However, it is notable that the Senate Committee's Report described the provisions made for children under the Arrangement as ‘completely unacceptable’,Footnote 195 stating that ‘[t]o send unaccompanied minors to Malaysia without making detailed provision for their guardianship on arrival is a dereliction in the Minister's duty as legal guardian of these children’.Footnote 196 Questions about the legality of transferring minors to third countries for processing of their refugee claims might therefore be expected to arise again in the future should the government seek to resume its search for further offshore processing alternatives.
D. Conclusion
The High Court's decision in Plaintiff M70 reinforced the need for governments to exercise care when entering into responsibility sharing arrangements concerning refugees and asylum seekers, and to ensure that proposed destination countries adhere to international human rights standards and can afford sufficient protections. In light of the decision, it remains to be seen whether Australia will continue to advocate for a regional protection framework—especially since very few countries in the region would satisfy the requisite criteria for a lawful transfer of asylum seekers. Ironically, the legislative stipulations in the Migration Act require more of third countries than Australia demands of itself when it comes to the protection of asylum seekers.
Were it ever minded to do so, Parliament could yet overturn the effect of the decision. Nevertheless, the case affirms important international legal principles about the movement of asylum seekers from one country to another and the meaning of effective protection.
