Case citation: Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32 Date of Judgement: Jurisdiction: 31 August 2011 High Court of Australia

The High Court of Australia (‘HCA’) held that the Minister for Immigration and Citizenship (‘Minister’) had, invalidly, declared that Malaysia was a country to which asylum seekers can be taken for processing under section 198A(3)(a) of the Migration Act 1958 (Cth) (‘Migration Act’). Further, section 198A was determined to be the relevant source of power for the Minister to remove asylum seekers to another country for refugee status determination. Additionally, the HCA decided that an unaccompanied asylum seeker, under 18 years old, cannot be taken from Australia lawfully without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth) (‘IGOC Act’).

On 7 May 2011, the Prime Minister announced a non-binding arrangement with the Malaysian Government to transfer 800 asylum seekers arriving (‘irregularly’) by sea to Malaysia for assessment of their refugee protection claims (‘Arrangement’).1 On 25 July 2011, the Minister made a declaration in respect of Malaysia under section 198A(3) Migration Act. Subsection (3)(a) provides that the Minister may declare that a specified country: (i) provides access, for persons seeking asylum, to effective procedures …; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons … given refugee status, pending their voluntary repatriation … or resettlement …; and (iv) meets relevant human rights standards in providing that protection … On 4 August 2011, Plaintiffs M70 and M106 arrived at Christmas Island. Both claimed to be persons to whom Australia owed protection obligations under the 1951 Refugees Convention.2 In entering Australian territory without a valid visa, both refugee claimants were deemed ‘unlawful non-citizens’.3 Section 198(2) Migration Act provides that an officer must remove an unlawful non-citizen as soon as reasonably practicable. In entering Australia at an excised offshore place, the plaintiffs were also deemed ‘offshore entry
Malaysia is a non-signatory to the 1951 Convention and 1967 Protocol Relating to the Status of Refugees. Herein, this international treaty will be referred to as ‘the Convention’. 2 Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) given effect to via Migration Act 1958 (Cth) s 36(2)(a). 3 Migration Act 1958 (Cth) ss 13, 14.


persons’.4 Section 198A provides that an officer may take an offshore entry person from Australia to a country for which a declaration is in force under subsection (3). A declaration was in force for Malaysia; therefore, the plaintiffs were to be taken there pursuant to the Arrangement.

On 7 August 2011, M70 and M106 commenced proceedings in the ‘original’ jurisdiction of the HCA,5 claiming an injunction prohibiting the Minster and Commonwealth from taking steps to remove them from Australia. On 8 August 2011, Hayne J granted an interlocutory injunction restraining the Minister from removing any persons named as plaintiffs from Australia until the hearing and determination of their application by the Full Court of the HCA.6 The proceedings were amended to constitute separate applications made in respect of M70 and M106 as the only plaintiffs.7

The Declaration
The plaintiffs argued that the Minister’s declaration under section 198A(3) was invalid because the criteria outlined in subsection (3)(a) were jurisdictional facts that did not exist. Alternatively, they argued that the Minister had misconstrued the provisions governing the making of a declaration and, thereby, fallen into jurisdictional error. French CJ observed that:
The term “jurisdictional fact” applied to the exercise of a statutory power is often used to designate a factual criterion, satisfaction of which is necessary to enliven the power of a decision-maker to exercise a discretion […] When a criterion conditioning the exercise of statutory power involves assessment and value judgments on the part of the decision-maker, it is difficult to characterise the criterion as a jurisdictional fact, the existence or non-existence of which may be reviewed by a court (citations omitted).8

In the present case that discretion is the Ministerial power to make a declaration under section 198A(3). French CJ concluded that the language of s.198(3) indicated the need for ministerial evaluative judgment and so, contrary to the plaintiffs primary argument, the criteria in s.198(3) were not to be construed as jurisdictional facts - conferring upon courts the power to substitute their judgment for that of the Minister.9 Conversely, the Minister’s proper construction of the criteria is a necessary condition of the validity of the declaration. If the Minister makes a declaration on the basis of a misconstrued criterion that declaration will be unauthorised by Parliament, importantly this type of mistake would constitute a jurisdictional error.10 French CJ continued:

Migration Act 1958 (Cth) s 5(1). Under ss 75(iii) and 75(v) of the Constitution. Recourse to the federal courts was barred by operation of s 494AA(1) Migration Act 1958 (Cth) however, this section did not affect the jurisdiction of the HCA via s.75 of the Constitution (s 494AA(3)). 6 The Full Court comprised French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ. 7 Under s 486B(4) of the Migration Act 1958 (Cth), the joinder of plaintiffs or applicants or the addition of parities in migration proceedings is prohibited. 8 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [57] (French CJ). 9 Ibid, [58]. 10 Ibid, [59].



Another way of approaching the scope of the ministerial power under s 198A(3) is to treat it as being, by necessary implication, conditioned upon the formation of an opinion or belief that each of the matters set out in s 193A(a)(i)-(iv) is true. The requisite opinion or belief is a jurisdictional fact. If based upon a misconstruction of one or more of the matters, the opinion or belief is not that which the subsection requires in order that the power be enlivened.

French CJ observed that the language of section 198A(3)(a) is indicative of enduring legal frameworks. The Minister did not find any basis for his declaration in Malaysia's international obligations or domestic laws. He formed an understanding that the Malaysian Government was ‘keen to improve’ its treatment of asylum seekers.11 However, the declaration must be about continuing circumstances in the specified country and the laws in effect. Thus, it was a misconstruction of the statutory criteria to make a declaration based upon a hope or expectation that the specified country would meet the relevant refugee protection criteria in future.12 Therefore, this constituted a jurisdictional (fact) error because the Minister had misconstrued the criteria on which his belief/opinion was founded. Finally, his Honour concluded that:
Constitutional guarantees, protective domestic laws and international obligations are not always reflected in the practice of states. […] The existence of a relevant legal framework which on paper would answer the criteria in s 198A(3) cannot therefore always be taken as a sufficient condition for the making of a declaration. The Minister must ask himself the questions required by the criteria on the assumption that the terms “provide” and “meet” require consideration of the extent to which the specified country adheres to those of its international obligations, constitutional guarantees and domestic statutes which are relevant to the criteria (emphasis added).13

Four other justices (hereafter, the ‘joint judgment’) arrived at the same conclusion as French CJ but adopted different reasoning. In the joint judgment (Gummow, Hayne, Crennan and Bell JJ) their Honours determined that criteria governing the operation of the Minister’s declaratory power were (in an objective sense) jurisdictional facts.14 That is, matters of objective fact of which the Minister (and court) must be satisfied exist in order to enliven the jurisdiction and make a valid declaration under s.198(1). They departed from the reasoning of the Chief Justice insofar as they determined that there was no reference, in the relevant provisions, to the Minister’s discretionary power resting on his subjective assessment: “On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the [third] country has those characteristics.”15 The joint judgment determined that the references to access to procedures, and effective protections, contained in sub-paragraphs 198A(3)(a)((i)-(iii), must be provided as a matter of legal obligation, and that these obligations are a reflex of the obligations that Australia, and other signatories to the Refugees Convention and Protocol, have undertaken – crucially, these obligations extend beyond the core requirement of non-refoulement to encompass, inter alia, non-discrimination, access to courts of law and elementary education.16

11 12

Ibid, [29]. This was submitted in the Minister’s affidavit. Ibid, [61]-[62] 13 Ibid, [67]. 14 Ibid, [106-109] and, in a separate judgment, Kiefel J at [240-246] and [255]. 15 Ibid, [106]. 16 Ibid, [116]-[118].


They continued:
A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. Not only did the Arrangement not oblige Malaysia to provide any of those rights, no provision was made in the Arrangement that (if carried out) would provide any of those rights.17

Accordingly, because Malaysia does not recognise the status of refugees in domestic law, is not a party to the Refugees Convention or Protocol and has no legally binding arrangement with Australia to secure the protections contained within those instruments, the jurisdictional facts necessary to make a valid declaration had not been (nor could be) established.18

An alternative, independent, power of removal?
The majority of the HCA looked to relevant principles of statutory construction in determining the validity of the Minister’s argument that there was an additional power of removal, that could be relied upon, pursuant to section 198(2) Migration Act 1958 (Cth). The principle drawn from earlier cases19 is that statutes can, potentially, confer only one power to take the relevant administrative action, in this case the power of removal. While a general power of removal is located in section 198(2), this is restricted by the specific terms of the removal power in section 198A(1). Section 198A(1) requires a declaration be made by the Minster with reference to the criteria in section 198A(3) before the power of removal can be exercised lawfully. In short, removal under section 198(2) is not feasible unless each plaintiff’s refugee protection claim is first considered and rejected.20 Such assessment has to be undertaken prior to their removal. Australia’s international obligations under the Convention have been addressed in section 198(3)(a) of the Migration Act,21 and so to read section 198(2) as allowing the Minister to remove the plaintiffs from Australia, without first assessing their claims to any country willing to receive them, would breach these protection obligations. Thus, section 198A is the only available source of power for the Minister to remove persons seeking asylum to another country for determination of their refugee status.22

The Minister’s Guardianship Role
The issue of whether Plaintiff M106, a non-citizen minor, could be removed to a third country was rendered moot by the invalidity of the declaration made by the Minister under section
Ibid, [126] Ibid, [135] 19 Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, 7 (Gavan Duffy J and Dixon J); Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 556, [59] (Gummow and Hayne JJ). 20 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [239]. 21 Plaintiff M61/2010E; Plantiff 69 of 2010 v Commonwealth (2010) 85 ALJR 131 at 141, [34]. 22 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [91]-[99].
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198A. However, the Court did consider whether such a person could be removed under the Immigration Guardianship of Children Act 1946 (‘IGOC Act’ hereafter). Under section 6 of the IGOC Act, the Minister is the child’s legal guardian and has to give written consent for the plaintiff to be taken from Australia.23 The declaration under section 198A(3)(a) could not be seen as constituting consent in writing of the kind required under section 6A IGOC Act. Therefore, the removal of the plaintiff, a non-citizen minor, would have been unlawful.

The Dissenting Judgment
Heydon J dissented on the basis that section 198A(3)(a) does not expressly provide that the validity of the declaration depends on proof of the four conditions being met as matters of fact. He found that the Minister may make a valid declaration having taken into account the criteria – a task for his personal assessment.24 Furthermore, his Honour opined that:
the statutory language does not refer to legal obligations or courts of law. The references to providing access, securing protections, and meeting human rights standards, are more apt to suggest practical access, practical protections, and a meeting of standards in practice. The language centres on what does happen, and not on the domestic machinery which makes this happen; […] Even less does the language suggest that Malaysian adherence to the Refugees Convention has any materiality.25

In the course of his judgment Heydon J cited part of a Federal Court decision where French J (as then was) ruled (in interlocutory proceedings) that the character of section 198A(3) is evaluative, polycentric and ‘not readily amenable to judicial review’.26 It should be noted that after the same passage cited by Heydon J, French J continued by observing: “That is not to say that such a declaration might not be invalid if a case of bad faith or jurisdictional error could be made out (emphasis added).” Accordingly, any suggestions that the Chief Justice has been inconsistent are, apparently, injudicious. Heydon J did not address whether section 198(2) was an additional source of the power of removal. However, his Honour did consider the Minister’s alleged guardianship responsibilities, finding that section 6A(4) does not affect the operation of any other law regulating the departure of persons from Australia. He observed that section 198A is a law of that kind which removes the need for the Minister's written consent and creates ‘a selfcontained regime’ for departure from Australia.27 Thus, plaintiff M106 could be taken from Australia without the Minister’s written consent.

The decision effectively voided Australia’s obligations under the Arrangement and made permanent the injunctions granted earlier restraining the Minister from taking to Malaysia the
Immigration Guardianship of Children Act 1946 s 6(1). Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [161] (Heydon J). 25 Ibid, [162]. 26 Ibid, [164] citing French J in P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029, [49]. 27 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [198] (Heydon J).
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plaintiff asylum seekers. On 19 September 2011, the Government proposed amendments to the Migration Act to revive the Arrangement. Section 198A(3) was to be repealed and substituted by section 198AA, which provides that ‘designation of a country to be an offshore processing country need not be determined by reference to the international obligations or domestic law of that country’.28 Section 198AB was also to replace section 198A(3), providing that:
(1) The Minister may, in writing, designate that a country is an offshore processing country. (2) The only condition for the exercise of the power under subsection (1) is that the Minister thinks that it is in the national interest to designate the country to be an offshore processing country …29

Thus, Ministerial power to make a declaration in respect of a designated country would no longer be conditioned upon his satisfaction of the jurisdictional facts outlined in section 198A(3)(a). The regional office of the UNHCR stated that in the context of the Arrangement, ‘the assurances of legal stay and community-based reception for all transferees can be seen as a more positive protection environment than … [indefinite] detention that many face here in Australia, provided the assurances are carefully monitored’.30 However, Kiefel J asserted that: ‘Assurances in the Arrangement as to what might be provided in the future will not suffice’.31 The decision-maker must assess what the specified country provides for at the time the declaration is made. On 20 September 2011, the proposed amendments were abandoned after the Government failed to gain support from the Opposition in the Lower House. The protection claims of asylum seekers arriving in Australia must now be processed onshore. However, the Government has indicated that the Arrangement remains ‘the policy of the [G]overnment now [and] it will be the policy of the [G]overnment in the future’.32

Rutaban J Yameen and Sarah Brown

Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 s 198AA(d). Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 s 198AB(1), (2) (emphasis added). 30 Pro Bono News, ‘Malaysia Deal May Be Safer: UNHCR’, Pro Bono Australia (October, 2011). 31 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32, [210] (Kiefel J). 32 Sydney Morning Herald, ‘PM to talk about Malaysia deal at CHOGM’, Sydney Morning Herald (online), 24 October 2011.



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