In M70 v MIAC [2011] HCA 32, the High Court considered applications by Offshore Entry Persons detained in Christmas Island regarding their proposed removal to Malaysia as part of an agreement between the Australian and Malaysian Governments. The Court also considered the situation of a child being removed to Malaysia and what this means under the Immigration Guardianship of Children Act (IGOC). By a 6-1 majority, the Court ruled in favour of the applicants on both points.
The background was that on 25 July 2011, the Australian and Malaysian Governments established an arrangement for the removal of 800 persons from Australia to Malaysia. Such person would be those arriving irregularly by sea from 25 July 2011. Certain arrangements were to be set up in Malaysia by the Australian Government and the Malaysian Government agreed to certain procedures to be followed in Malaysia. Also part of the arrangement was the resettlement of 4000 refugees to Australia at 1000 per year, but these 1000 would not include any person removed under the arrangement.
The first issue for the Court was the validity of a declaration by the Minister under s198A regarding Malaysia. Section 198A(3) has four prerequisites:
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;
It found that the Minister failed to make a valid declaration of Malaysia under s198A for several reasons. These included the fact that Malaysia was not a signatory to the 1951 Refugees Convention nor 1967 Protocol, and Malaysia had no domestic law to implement the protections of the Refugee Convention. This meant that a declaration under s198A could not be positively be made whilst these facts continued.
Without such a declaration, the Court found that the applicants were entitled to have their claims for protection assessed and not be removed to Malaysia. This assessment process was considered in a previous High Court decision of M61 v MIAC [2010] HCA 41 and found to be flawed. Since the M61 Case, the process was changed to take into account the findings of the High Court in that case.
The second aspect to the case was the claims of a minor under the IGOC Act. The Court held that prior to the removal of a minor, the Minister is required to grant the consent to the removal of the minor before the removal can take place. That consent is subject to possible judicial review under the Administrative Decisions Judicial Review Act 1977. This meant the Minister had to give reasons for the consent and those reasons could be reviewed in the Federal Court. No reasons were given so the lack of consent meant the provisions of the IGOC Act had not been followed.
Following the decision, the Government sought to amend s198A and the IGOC Act to enable the removals without having to make a declaration subject to the existing four prerequisites. Effectively it meant that the Minister could declare any country as suitable and such a declaration was not subject to any form of review nor precluded by the IGOC Act. Although the Opposition supports what is called ‘offshore processing’, that is, removing people to third countries for assessment, the Bill did not reach a vote in the parliament as it was clear it would not even pass the House of Representatives.
This means the situation for people arriving by boat and without a visa is still the same as was set up following the M61 Case. Offshore entry persons will have their claims assessed through the Protection Obligations Determination (POD) process. They have access to IAAAS providers to assist them in the preparation of their applications. Whilst the political issues remain contested, the law is settled until the Act is changed.
By Kerry Murphy (D’Ambra Murphy Lawyers)
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