The High Court will hand down a decision today on the validity of sending asylum seekers to Malaysia under the Migration Act.
This decision has been one that is widely anticipated and speculated upon by migration experts, commentators and human rights advocates. It is a complex case and one that is surrounded by legal jargon.
Essentially the government is echoing the Pacific Solution by using a particular section of the Migration Act to avoid the processing of asylum claims by Australia in Australia.
The Pacific solution involved a raft of legislation introduced by the Howard Government which made it impossible to apply for a visa in certain sections of Australia and implemented temporary protection visas for those recognised as refugees.
The centrepiece of the legislation was offshore processing. People were taken directly to Nauru to be processed by Australian DIAC staff, housed in a camp run by the International Organisation of Migration (IOM) and funded by Australia. The Australian government lobbied countries such as New Zealand and Canada to take some of the refugees but the majority ended up back in Australia. The financial costs were substantial and the human cost immeasurable.
Sadly the Gillard government has continued to ignore both the human and financial costs of these failed policies and step by step implemented its own version of the Pacific Solution with new and exciting twists.
Like its predecessor the Malaysian solution rests solidly on the legislation introduced by John Howard and it is this legislation that is under consideration.
Section 189 of the Act allows unlawful non citizens to be taken into detention and section 198A allows an officer to take an offshore entry person to a declared country.
The Migration Act also allows children and minors to be held in detention and taken to a declared country.
Like all areas of law the words used in the legislation are particularly important.
An unlawful non citizen is whimsically defined as a non-citizen who is not lawful; in other words a person who is in the migration zone and who does not hold a visa.
An offshore entry person is a person who ‘entered Australia at an excised offshore place…’…. follow that rabbit down the hole and you will find that an excised offshore place is defined under the Act as the external territories, island and sea and resource installations most Australians know as the ‘excised territories’.
These places were removed from the Migration Act so that people who arrive or are taken there by boat are barred from applying for any visa. They are under law ‘outside’ the migration zone. The Migration Act allows the Minister to lift the bar and either grant a visa or allow the person to apply for one.
A declared country is one that the Minister declares in writing:
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;
Mandatory detention for unlawful non-citizens in the migration zone has been in place for decades in Australia, but the Act determines that the option of detaining people who arrive at Christmas Island or are intercepted on the way there in boats is discretionary under section 189. They may be detained but then again they may not: it is up to an officer of DIAC to make that decision.
Despite the fact that detention is not mandatory, all asylum seekers arriving by boat are currently detained. Their claim for asylum is assessed by DIAC officers who then arrange security and health checks for those they feel have a refugee claim; before recommending to the Minister that he ‘lift the bar’ and either allow them to apply or grant them a protection visa. This pre-determination and assessment before the application for a visa has lengthened the time people spend in detention and has led to problems of overcrowding and unrest.
The asylum seekers at the heart of this court case have not had their claims for asylum dealt with. The Minister gave instructions to the secretary of DIAC that he would not be considering lifting the bar and that no assessment should be made.
Instead the asylum seekers were told they would be taken to Malaysia and their claims would be assessed there by UNHCR. They would join approximately 90,000 other refugees or asylum seekers in Malaysia awaiting resettlement.
In order to take them to Malaysia the Minister undertook to make a declaration about Malaysia under s198A (3).
The Plaintiffs, (those appearing for the refugees) argued that the detention provisions in the Act split into two different categories; those that apply to unlawful non citizens who must be detained under s189 until they are removed, deported or granted visa and those who are taken to a declared country under s198A.
The Act provides that people dealt with under s198A are not in immigration detention. But it does not specify what they are in. The plaintiff argued they may be considered to be in some sort of ‘constraint’ awaiting the trip.
It stands to reason that someone has to purposefully decide if a particular person is one who will be dealt with under this section and taken to a country that has been declared.
The High court case focuses on how the Minister made the decision regarding the declaration of Malaysia as a country that provided and met the criteria under s198A. The consideration includes the Minister’s obligations as legal guardian of unaccompanied minors under the Immigration (Guardianship of Children) Act 1946 (Cth).
The Plaintiff argued that a person can only be constrained under this section of the Act if the Minister has actually declared in writing that a specified country meets the criteria outlined in the Act.
The plaintiff maintained that criteria the country needs to fulfil must exist objectively and the Court can determine whether they exist. In addition the Minister must be satisfied on ordinary principles that they do exist. In order to be satisfied that they do exist he must ‘ask himself the right question about what he is doing under the declaration.’
In addition they maintained that the protection referred to in the criteria must be protection that is ‘accorded to a person who claims to be a refugee’ and that it extends beyond the obligations that a person is not sent back to a country whereby they fear persecution (refoulement). Protection extends to rights such as protection against discrimination, guaranteed religious freedom and basic education. In other words the type of rights that arise from the Refugee Convention and other international human rights instruments.
The Commonwealth focused on 6 topics.
- The need to meet Australia’s obligation under Article 33 of the Refugee Convention; that is to ensure that a person to whom Australia has or might have protection obligations is not sent back to a country whereby they fear persecution;
- How section 198A provides the power to meet that obligation and how it does this ‘concurrently with the power to detain in section 189(3) and the power to remove in s198(2);
- The proper construction (interpretation) of section 198A (3);
- The proper construction of 198A (1) and
- The suggestion that the Minister attempted to check his own powers or that of his officers by an instruction that he would not exercise his discretion to lift the bar or grant a visa.
- The role of the Minister as the guardian of the unaccompanied minors.
The Commonwealth argued that the first is met by legislation. That section 198A allows for a person to be taken to the declared country which provides access for an asylum seeker to effective procedures for assessing their need for protection; protection whilst their claim is being assessed and protection for those who are not refugees pending their voluntary return or resettlement. They argued this prevents asylum seekers being sent against their will to a country where they fear persecution.
Furthermore the Commonwealth claimed the power to take someone to a declared country amounts to removal which is provided for in section 198(2) of the Migration Act. The duty to remove someone remains even if it is decided not to use section 198A to take them to a declared country and furthermore that the duty to remove remains unless a person is granted a visa or deported.
Importantly they argued that the proper interpretation of section 198A (3) is that there are no conditions placed on the Minister to consider anything legal under Malaysian domestic or international law when making a declaration about a country. That the term protection only relates to one specific obligation under the Refugee Convention; the reference to providing protection for those seeking asylum and recognised as refugees refers not to obligations under the Convention or other human rights instruments but to the practicalities of life and the term human rights standards has no precise legal content but refers to what actually occurs.
The Commonwealth maintained the Minister is required only to form a judgment about a country based on good faith. He can then make the declaration that the country provides and meets the criteria under that section. The Commonwealth says the Minister did not ask himself the wrong question. Instead he made his determination on the premise that a legal obligation under international or domestic law of Malaysia was not necessary for considering whether Malaysia provided protection. In doing so he considered Malaysia as it is now, not as it might be in the future. It was an evaluative judgement that the Minister made and in doing so he declared it to be true that Malaysia meets the criteria.
The letter sent to the secretary of DIAC indicating the Minister would not be considering his ability to lift the bar for these applicants to allow them to lodge a visa application was not a check on his own power as it was not legislative direction under the Act, but simply letter sent in keeping with the Minister’s authority under the Australian Constitution.
Arguments about the Minister’s role as guardian of unaccompanied children were based on the Minister’s role under both the Guardianship Act and the Migration Act.
The Commonwealth argued that the two Acts should be considered separately as if two different Ministers were administering them. If another Minister was responsible under the Guardianship Act the argument that it would influence the powers of the Minister responsible for the Immigration Act would not be valid.
And if the two Acts are considered together there is a clash between things done under one Act that are in the interests of an individual and things done under the other that are in the public interest.
Therefore taking the bests interests of the child into consideration when exercising a power under s198A (1) of the Migration Act is not an additional requirement that must be considered, says the Commonwealth.
The terminology “bests interests of the child’ arises from the Convention on the Rights of the Child. However the Commonwealth maintains that despite the fact they do not need to pay heed to the Guardianship Act they do in fact take the best interests of the child into consideration under the pre removal assessment process.
The Plaintiff put forward four propositions to support their argument that the Minister had breached his duty as guardian.
- Section 6A of the Guardianship Act imposes a duty on the Minister to act in the best interests of the child.
- The duties coexist with and are not diluted by the Minister’s duties under the Migration Act.
- Taking the plaintiff to Malaysia is not in his best interest and will expose him to harm.
- By issuing a directive to the Secretary of DIAC that he will not consider using his powers to lift the bar and allow a visa application the Minister has breached his duties.The Plaintiff argued that the duty imposed by the Guardianship Act was a public duty not a private one. The Acts must be read concurrently and cannot be argued to be separate due to the history of the development and use of the Guardianship Act.
The challenge, the arguments and the documents exposed by the case reveal clearly that once again the government has placed political expediency above human cost in making these decisions. The Government is not concerned about the impact that removal to Malaysia may have on asylum seekers, and in particular has not considered the repercussions of this ‘solution’ for vulnerable unaccompanied children.
These arguments leave it to the High Court to make a range of decisions including a decision that the Minister has breached his obligations under the Guardianship Act. This would result in the greatest political headache for Government and we may see a backlash similar to the one that followed the introduction of Temporary Protection visas: a substantial an increase in children making the dangerous journey to Australia, on their own, without parents or family to protect them.
Marianne Dickie
Sub-Dean Migration Law Program
ANU College of Law
Andrew Bartlett
Australian National University Migration Law Program
