Injunction against the government's Malaysian 'arrangement'

On Monday 8 August 2011, a single judge of the High Court (Justice Hayne) granted interlocutory relief (an injunction) in the case of Shah & Ors v Minister for Immigration and Citizenship & Anor. This interim measure prevents the Commonwealth Government from removing the first group of 16 asylum seekers from Christmas Island to Malaysia as planned under the notorious recent deal with that country. The injunction was granted to enable the matters in dispute to be heard by the Full Bench in the week commencing 22 August (without an injunction, the Government could proceed with removal, rendering the whole case moot).

This is not a case, as you might imagine, based primarily on international law, or even human rights (although it obviously calls these into question). The case centres on Australian law, because this is the law which can truly restrain the Government. Having said that, some Australian law is based on international law, and this includes the Migration Act 1958 (Cth). The purpose of the sections of this Act dealing with asylum seekers is, broadly speaking, to implement Australia's obligations under the 1951 Convention on the Status of Refugees and its 1967 Optional Protocol. The most important aspect of this is that it allows people to seek asylum in Australia when they are fleeing persecution – this is the Humanitarian/Protection Visa regime.

Despite their right to apply for protection in Australia, those who arrive here without obtaining a visa in advance are classified under the Act as 'unlawful non-citizens' and subject to mandatory detention. If they arrive on a boat and are intercepted outside the 'migration zone,' they are further classified as 'offshore entry persons.' Under s 198A of the Act, such people can be taken (by force if necessary) to another country to have their claim to refugee status processed. However, the Minister is required under 198A(3) to declare (in writing) that this other 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.

This, obviously, is to ensure that 'offshore entry persons' are not subject to danger or to a 2^nd-class refugee processing system. As the barrister for the asylum seekers (Debbie Mortimer SC) put it: "…it is unsurprising that the Parliament has required a declaration that any third country, in effect and in practice, meet the same standards that are available to persons seeking Australia's protection if they are processed onshore [ie in Australia]." Under the Malaysian arrangement, Minister Bowen was therefore required to make such a declaration in respect of Malaysia.

In seeking the injunction, David Manne, Debbie Mortimer and their team questioned (a) whether the Minister had made such a declaration as a proper, enforceable legislative instrument, and (b) whether the Minister was actually required to be satisfied that Malaysia met the requirements above before making a declaration. In their submission, they effectively asked how the requirements of s 198A could possibly be fulfilled by a country which is party to neither the Refugees Convention nor the International Covenant on Civil and Political Rights(ICCPR), has no relevant domestic obligations, and is widely reported to mistreat asylum seekers (and not just by NGOs).

The team put other arguments to the court, including significant administrative law arguments, but there's not room here for a full run-down. For further information, please read the transcript. I recommend you read it anyway, since Justice Hayne was in fine form yesterday – a few choice snippets:

[In response to Ms Mortimer's comment that she is reluctant to concede a point]: It is no part of counsel's job to give away points, I understand that, Ms Mortimer. Counsel are paid, or in this case I suspect not paid, to have the belt, the braces and the piece of string around the trousers as well, I understand all of that, but we need to understand what the serious question is to be tried.

[As the Solititor-General begins his argument]: "Before you proceed further, how long is this affidavit going to take, Mr Solicitor? It is unsatisfactory that the matter proceed in this half-baked fashion." [I winced at this one, having been a Government lawyer in a former life.]

[Finally – and my favourite – in relation to service of the affidavit]: What happens with the people in Melbourne? That is the principal locus of this litigation, Mr Solicitor, and the tentacles of the Commonwealth surely extend to the southern capital still, do they, or perhaps not?

The Commonwealth responded that the Minister may well have been required to satisfy himself of the requirements of s 198A(3) of the Act, but that he didn't have to take into account Malaysia's refusal to accept international human rights and refugee obligations – only what the country "does or perhaps is likely to do." It later conceded that legal obligations might be relevant, and also that the 'arrangement' with Malaysia was specifically expressed as non-binding. However, it contended that none of this prevented the Minister from reasonably making the declaration under s 198A(3), going on information provided by the UNHCR and the Department of Foreign Affairs and Trade. In any case, it said, the Government had a duty under s 198(2) to remove these 'unlawful non‑citizens' from Australia 'as soon as reasonably practicable.'

It is important to note that the deal with Malaysia came in the form of an 'arrangement' (as opposed to a treaty or even a Memorandum of Understanding, such as the Howard Government had with Nauru), which specifically states (in clause 16) that it "…represents a record of the Participants' intentions and political commitments but is not legally binding on the Participants." The inclusion of such a provision gives rise to serious questions as to whether the 'parties' truly intend to honour the rest of the arrangement.

By now we all know what happened – Justice Hayne decided that the plaintiff's arguments did pose at least one 'serious question to be tried' – ie the proper construction (interpretation) of s 198A of the Act. Having decided this, he granted the injunction against removal, and decided to refer the case to the Full Bench of the Court (this is tentatively scheduled for 2.15pm on 22 August). It was also determined that the question about removal of unaccompanied minors (of whom the Minister is the official guardian under the Act, and in whose best interests he is bound to act) should go to the Full Bench at the same time. Due to a quirky provision of the Act which was brought up at the last minute, only one adult and one minor plaintiff will be represented at that hearing (joint actions contesting decisions made under the Migration Act are prohibited).

Minister Bowen has said he's confident in the legality of the Malaysian arrangement, but this confidence will be tested on (or shortly after) 22 August. It should be an interesting day for Australian law relating to refugees.

POSTSCRIPT: Something which should be considered when discussing the future of Australia's regime of 'offshore processing' and removal of asylum seekers is the Migration Amendment (Complementary Protection) Bill 2011. This Bill is intended to make long overdue amendments to the Migration Act to implement Australia's obligations not to remove anyone to a country where he/she faces a real risk of persecution, torture or cruel, inhuman or degrading treatment or punishment. This is known as a non-refoulement obligation. This extremely important Bill is currently before Parliament, and were it to pass into law it would certainly apply to those the Government intends to send to Malaysia (or at least those who arrive after it passes). With Malaysia's record of cruel punishments and other human rights abuses, it could be yet another spanner in the works for the Malaysian arrangement.