Breaking News: High Court declares Malaysian “Solution” illegal

By Legal Eagle

Just handed down at 2:15pm today: the High Court has declared the Malaysian “Solution” to be illegal in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32.

I shall shamelessly reproduce the High Court’s summary of reasons available on their site — more detailed commentary (I hope) to follow [on which, see UPDATE below]:

Today the High Court held invalid the Minister for Immigration and Citizenship’s declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.

The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister’s written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of “unlawful non-citizens” given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.

On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees (“UNHCR”) to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so.

The Court emphasised that, in deciding whether the Minister’s declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court’s decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

Interesting to see what the government’s response will be now. I have to say that I’m quite pleased by the result, as I was never very happy with any of these so-called “solutions” – Nauru, Malaysia etc.


I’ve had a chance to skim the judgments.

The decision of the majority centred around the criteria which allowed the Minister to determine that Malaysia was a place to which he was empowered to remove the asylum seekers, and the absence of other powers which would allow him to remove asylum seekers.

I should add at this point that I am not an administrative lawyer’s bootlace, but I’ve done my best to untangle the labyrinthine structure of the Migration Act and to understand the basis on which the High Court’s decision was made. If I have made any errors, please alert me and I will amend the post accordingly…

First, the Minister’s determination that Malaysia satisfied the four criteria under s 198A(3) was not based on “jurisdictional facts” which empowered him to do so (in other words, he had no jurisdiction to make a determination based upon those facts). Section 198A(3)(a)(i) – (iv) states:

(3) The Minister may:

(a)  declare in writing that a specified country:

(i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)  provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)  provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and

(iv)  meets relevant human rights standards in providing that protection; …

Gummow, Hayne, Crennan and Bell J in the plurality said at [106] – [107]: “Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister’s forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics. The plaintiffs submitted that the criteria in sub-pars (i) to (iv) of s 198A(3)(a) are jurisdictional facts. They submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.”

Thus any country about which a declaration is made must actually have legal mechanisms which allow for provision of the various protections, not simply practices that appear to provide the various protections. The majority rejected the proposition that the Minister must merely believe in a bona fide manner that the relevant criteria were met, as this was not consonant with the purpose, words and context of the section. The essence of the judgments seem to boil down to the fact that, as Malaysia ‘does not recognise 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 … is not party to the Refugees Convention or the Refugees Protocol … and … has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments…’ therefore ‘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)’: (see para [135]). It was not enough that persons seeking asylum in Malaysia have access to UNHCR procedures for assessing their need for protection, and that asylum seekers and refugees are not ill-treated pending determination of their refugee status or repatriation or resettlement. There had to be legal mechanisms providing the said protections in Malaysia.

Fascinatingly, as kvd has intimated in comments, the majority also cast doubt on the Nauru “solution”. So the plurality said at [126] – [128]:

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.

The Minister and the Commonwealth also submitted that the circumstances in which s 198A was enacted pointed against the adoption of this construction of the section. They submitted that s 198A was enacted with a view to declaring that Nauru is a country specified for the purposes of s 198A and that it was known, before the enactment of s 198A, that Nauru was not a signatory to the Refugees Convention or the Refugees Protocol.

Two points may be made about this submission. First, it is by no means clear what use the Minister and the Commonwealth sought to make in the proper construction of the provision of what they asserted to be facts known to those who promoted the legislation. The facts asserted do not identify any mischief to which the provision was directed. Rather, it seemed that the facts were put forward as indicating what those who promoted the legislation hoped or intended might be achieved by it. But those hopes or intentions do not bear upon the curial determination of the question of construction of the legislative text. Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

The other main strand of reasoning was that the Minister could not rely on s 198(2) as a justification for removing persons to Malaysia, contrary to the arguments of the Minister. The plaintiffs submitted that s 198A provided a separate and distinct set of provisions with respect to “offshore entry persons” whose claims for asylum are not to be assessed in Australia. Once an officer has decided that he or she will exercise the power given by s 198A(1) to take an offshore entry person from Australia, the conditions for the exercise of power under s 198(2) are no longer fulfilled. The conditions for the exercise of power under s 198(2) are not fulfilled because the offshore entry person (an unlawful non-citizen) is no longer covered by s 193(1)(c) because he or she is no longer detained under s 189(2), (3) or (4). In particular, the detention under s 189(3) that would have earlier existed has been brought to an end by operation of s 198A(4). Second, they submitted that whether s 198(2) and s 198A(1) should be construed as providing what can cumulative powers of removal was to be determined by application of the principle of statutory construction usually associated with the High Court’s decision in Anthony Hordern & Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (i.e. whether “the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power”: Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] HCA 50, [59]).

The plurality explained at [95]:

When it is observed that s 198A is directed to taking persons to a country which provides the access and protections identified in s 198A(3), including “access, for persons seeking asylum, to effective procedures for assessing their need for protection”, it becomes evident that s 198 should not be construed as requiring or permitting the removal from Australia of those described in s 198A as “persons seeking asylum” before there has been what the same section calls a “determination of their refugee status”. Such persons can be taken to another country only in accordance with s 198A. The Act confers only one power to take that action: the power given by s 198A. Section 198A deals with a subset of those to whom it is said s 198 applies. The generality of the power apparently conferred by s 198 must be confined by reference to the restrictions set out in s 198A.

Finally, in relation to the second plaintiff, who was 16 years old, it was held that the Minister had not made the necessary declaration consenting to the removal of the plaintiff pursuant to the Immigration (Guardianship of Children) Act 1946 (Cth) as was required by s 6A.

Heydon J dissented. His opinion was that the Minister did not need to be satisfied that the four requirements of s 198A(3)(a) were present as a matter of fact, or that Malaysian law actually provided those protections. Thus the power under s 198A(1) was validly exercised. In addition, he found that the requirements of s 6A did not apply to the second plaintiff.


  1. kvd
    Posted September 1, 2011 at 6:54 pm | Permalink

    Jim Belshaw has a painful, but accurate comment on the broader issues thrown up by this. Well worth a careful read.

  2. Posted September 1, 2011 at 7:04 pm | Permalink

    kvd, that post of Jim’s is excellent. I’ve gone and recommended it over at LP — it deserves a wider audience.

  3. Posted September 1, 2011 at 7:50 pm | Permalink

    Thank you kvd and SL. I spent a fair bit of time on that post because I care a great deal about the need to make government work better.

  4. Posted September 2, 2011 at 4:54 am | Permalink

    Reading some of the comments on Ken Parish’s post, I remain deeply unimpressed by the view that the Australian electorate should just be ignored: it strikes me as both arrogant and dangerous. There was a notable drop in polled hostility to migration after border control was publicly accepted as a policy aim: giving the electorate the sense of being powerless on such matters is asking for problems.

  5. Patrick
    Posted September 2, 2011 at 12:29 pm | Permalink

    Thoroughly agree Lorenzo.

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