Plaintiff M70/2011 v Minister for Immigration ('Malaysia Solution')

What was at stake

Offshore transfer to non-signatory 'safe country'; statutory preconditions

What happened

The plaintiffs were 'irregular maritime arrivals' who came to Christmas Island, an excised offshore place under Australian law, and claimed to have well-founded fears of persecution in their countries of nationality. They sought protection from Australia but no assessment of their protection obligations was undertaken. The Australian Government had executed an arrangement with Malaysia on 25 July 2011 under which up to 800 asylum seekers would be transferred from Australia to Malaysia for refugee status determination. The Minister declared Malaysia a 'specified country' under s 198A(3) of the Migration Act 1958 and directed that asylum claims of offshore entry persons not be processed, causing the plaintiffs to fear imminent transfer to Malaysia, a country that is not party to the Refugee Convention and whose domestic law does not recognise the status of refugee or asylum seeker.

What the court decided

Malaysia arrangement invalid; strict criteria for designating 'safe' third countries for transfers.

How the court got there

The High Court held that the statutory preconditions in s 198A(3) of the Migration Act 1958 were not satisfied because Malaysia did not provide the access to effective processes for refugee status determination, protections pending determination, or durable solutions required by the provision, given that Malaysian domestic law did not recognise refugee or asylum seeker status and Malaysia was not bound by the Refugee Convention or the Convention Against Torture. The Court found these criteria constituted jurisdictional facts, meaning the Minister's satisfaction had to be well-founded in law and fact, not merely subjective. Because the Declaration was therefore invalid, the power to remove the plaintiffs to Malaysia under s 198A(1) did not arise, and the Direction unlawfully fettered the discretionary power conferred by the Act.

Who pushed back

Heydon J dissented, taking the view that the majority's construction of the Migration Act was incorrect and that the Minister's declaration was valid; he would have dismissed the plaintiffs' claims.

Statutes and cases cited

Categories

Authoritative link