CHAPTER 2

Background

2.1        This chapter provides an overview of the process by which the Malaysian Arrangement on asylum seekers was developed, and explains some of the arrangement's key provisions. The High Court's decision in the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship[1] is also examined; along with the Australian Government's subsequent introduction of legislative amendments intended to address the issues arising from the High Court's decision.

Joint Prime Ministerial statement on the Malaysian Arrangement

2.2        On 7 May 2011, in a joint statement with the Prime Minister of Malaysia, the Prime Minister announced a commitment for both governments to enter into a new arrangement to help address people smuggling and irregular migration in the Asia-Pacific region.[2]

2.3        The joint statement outlined the core elements of the bilateral arrangement, namely that:

• 800 irregular maritime arrivals (Transferees), who arrive in Australia after the date of effect of the arrangement, would be transferred to Malaysia for refugee status determination;
• in return, over four years, Australia would resettle 4,000 refugees already currently residing in Malaysia;
• Transferees would not receive any preferential treatment over asylum seekers already in Malaysia;
• Transferees would be provided with the opportunity to have their asylum claims considered and those in need of international protection would not be refouled;
• Transferees would be treated with dignity and respect, and in accordance with human rights standards; and
• Australia would fully fund the arrangement.[3]

Signing of the Malaysian Arrangement

2.4        On 25 July 2011, the Prime Minister and the Minister for Immigration and Citizenship (Minister) announced that the Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement (Malaysian Arrangement or arrangement) had been signed by Australia and Malaysia.[4] Also on 25 July 2011, the Minister issued an Instrument of Declaration which purportedly provided the statutory basis for the transfer of asylum seekers to Malaysia as a 'declared' country under section 198A of the Migration Act 1958 (Migration Act).[5]

Key provisions of the Malaysian Arrangement

2.5        For the most part, the Malaysian Arrangement reflects the core elements outlined in the joint statement by the Australian and Malaysian Prime Ministers on 7 May 2011.

2.6        Under the Malaysian Arrangement, the Government of Malaysia will accept up to a maximum of 800 'Transferees' (clause 7(1)). Transferees are people who, after the date of the signing of the arrangement, have travelled irregularly by sea to Australia, or who have been intercepted at sea by Australian authorities while trying to reach Australia by irregular means (clause 4(1)(a)).

2.7        Transferees found to be refugees will be 'referred to resettlement countries pursuant to normal processes and criteria of the United Nations High Commissioner for Refugees' (UNHCR) (clause 6). Where a Transferee is found not to be a refugee, the arrangement states that voluntary return is the preferred option. However, where a Transferee does not agree to return to their country of origin voluntarily, then forced returns may be necessary (clause 11(1)).

2.8        Pursuant to the arrangement, the Australian Government will resettle 4,000 refugees, currently residing in Malaysia, over a four-year period at a rate of approximately 1,000 people per year (clause 7(2)). In order to be resettled in Australia, a person must hold a UNHCR card and must have entered Malaysia and been registered with the UNHCR prior to the date of signing of the Malaysian Arrangement. Such persons must have remained in Malaysia since the date of signing (clause 5(1)(a)).

2.9        The Malaysian Arrangement also sets out a number of commitments by the Governments of Australia and Malaysia. The joint commitments include that Transferees and persons to be resettled in Australia 'will be treated with dignity and respect and in accordance with human rights standards' (clause 8(1)). There is also a commitment to develop specific procedures to deal with the special needs of vulnerable cases, including unaccompanied minors (clause 8(2)).

2.10      The arrangement sets out a list of costs that the Australian Government has committed to cover, including costs related to (clause 9(1)):

• any interdiction and Transferee management costs involved in the actual transfer from Australia to Malaysia, and any Australian detention costs;
• transportation costs incurred to transfer Transferees to Malaysia, including the costs of any escorts and interpreters;
• costs related to the health and welfare (including education of minor children) of Transferees in accordance with UNHCR's model of assistance in Malaysia; and
• additional 'safety net' costs related to meeting any special welfare needs of Transferees (especially vulnerable cases), drawing also on the services of the International Organisation for Migration (IOM) as necessary.

2.11      There is also provision for the Australian Government to cover other costs, as agreed (clause 9(1)(k)).

2.12      The Australian Government has made commitments with respect to the return of Transferees found not to be in need of international protection (clause 9(4)). Specifically, the Australian Government will assist the Government of Malaysia in the return of a Transferee to their country of origin, including assistance with financial costs, administrative arrangements through the use of a service provider such as IOM, and liaison with the country of origin.

2.13      The Government of Malaysia has committed to providing Transferees with the opportunity to have their asylum claims considered by the UNHCR and 'will respect the principle of non-refoulement' (clause 10(2)(a)). However, the arrangement provides that the benefit of non-refoulement may not be claimed by a Transferee who is a refugee where (clause 10(2)(b)):

• there are reasonable grounds for regarding the person as a danger to the security of Malaysia or
• the person has been convicted by a final judgement of a 'particularly serious crime that constitutes a danger to the community of Malaysia'.

2.14      Clause 12 sets out a number of agreed terms of the arrangement, including:

• operations under the arrangement are to be carried out in accordance with the domestic laws, rules, regulations and national policies from time to time in force in each country, and in accordance with the parties' respective obligations under international law (clause 12(1)); and
• Transferees should not be given 'any preferential treatment in the order of processing their claims in Malaysia' and should 'receive no processing advantage as a result of having undertaken irregular migration to Australia' (clause 12(2)).

2.15      The Malaysian Arrangement also provides for a Joint Committee and an Advisory Committee (clause 13).

2.16      The Joint Committee will be made up of one representative each from the Malaysian Ministry of Home Affairs and the Australian Department of Immigration and Citizenship (and such other representatives as may be agreed) (clause 13(2)), and will have the following responsibilities (clause 13(1)):

• management of the transfer arrangements;
• oversight of the welfare of Transferees;
• ensuring that funding is expended appropriately; and
• engagement with service providers.

2.17      The Advisory Committee will provide advice to the respective governments on issues arising out of the implementation of the arrangement, as well as being a body to which each party might refer issues for consideration (clause 13(3)). The Advisory Committee will be made up of two representatives from each of the Malaysian and Australian Governments, a representative from each of the UNHCR and the IOM (subject to their agreement), and other representatives as agreed by the parties (clause 13(4)).

2.18      Clause 18, the so-called 'Resolution of Differences' clause, provides that any differences between the Participants over the interpretation or application of the arrangement are to be resolved as soon as reasonably practicable by consultation between the parties.

Key provisions of the Operational Guidelines

2.19      The Operational guidelines to support transfers and resettlement (Operational Guidelines) set out the processes to be followed for moving Transferees to Malaysia and the resettlement of refugees in Australia from Malaysia.

2.20      Item 1 of the Operational Guidelines covers the transfer process from Australia to Malaysia. Initial handling of Transferees in Australia will include (item 1.1.1):

• collection of biodata and biometrics (photo and fingerprints) for each Transferee;
• checking Transferees against the Australian 'watch list';
• medical assessments to ensure that Transferees are 'fit to travel'; and
• counselling Transferees about the transfer process and a briefing on 'what to expect in Malaysia'.

2.21      The Operational Guidelines also set a pre-transfer notification process between Australian and Malaysian authorities (item 1.1.2). Part of that notification process will allow for exemption orders to be put in place for Transferees under Malaysian immigration and passport legislation.

2.22      The Operational Guidelines provide that the parties will aim to have each group of Transferees transferred to Malaysia within 72 hours of their arrival in Australia (item 1.3).

2.23      On arrival in Malaysia, Transferees will be handed over to Malaysian authorities 'at the door of the aircraft'. Transferees will be encouraged to disembark voluntarily. If Transferees do not disembark voluntarily, however, they will be escorted to the door of the aircraft by Australian authorities and handed to Malaysian authorities (item 1.4.1).

2.24      Item 2 of the Operational Guidelines covers the post-arrival arrangements for Transferees in Malaysia. Following initial processing at the airport, Transferees will be taken to a transit centre for further processing. Malaysian authorities will authorise departure of Transferees from the transit centre 'generally' within 45 days (item 2.1.2(f)).

2.25      The Transferee pathways in Malaysia are:

• voluntary return to the relevant country of origin (item 2.2.1);
• seeking asylum through the UNHCR process (item 2.2.2); and
• consideration of a person's claim to complementary protection by Australian authorities where the person seeks neither voluntary return or asylum (item 2.2.3).

2.26      Item 2.3 sets out the various steps which follow from the determination of a person's refugee status. These are divided into three scenarios: where a person is found to be a refugee; where a person is found not to be a refugee; and where the person decides during the refugee determination process to leave Malaysia.

2.27      Item 3 sets out conditions for Transferees during their temporary stay in Malaysia, and focuses on the period following the Transferees' departure from the Transit centre. Some of the key points are:

• 'generally', Transferees will be allowed to reside in the community (item 3.1(a));
• Transferees will be encouraged to become self-sufficient as soon as possible (item 3.2(b));
• IOM will pay Transferees a support payment to cover living costs for the first month in the community (item 3.2(c));
• Transferees of school age will be permitted access to private education arrangements in the community and, where such arrangements are not available or affordable, children will have access to informal education arrangements organised by IOM (item 3.3); and
• vulnerable Transferees will be identified by IOM's initial health assessment, and will have access to the existing arrangements which the UNHCR has in place for identifying and supporting vulnerable cases (and a 'backup safety net' will also be provided by IOM) (item 3.5 (a) and (b)).

2.28      Item 4 sets out the processes for resettlement of refugees in Australia from Malaysia; and item 5 sets out the terms of reference and membership of the Joint Committee and the Advisory Committee.

High Court's decision[6]

2.29      Under subsection 198A(3) of the Migration Act, the Minister is invested with discretion to:

(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.

2.30      As noted earlier in this chapter, the Minister declared Malaysia as a specified country under subsection 198A(3) in order to facilitate the transfer of asylum seekers to that country pursuant to the terms of the Malaysian Arrangement.

2.31      The High Court's decision related to two matters, known as M70/2011 and M106 of 2011, involving two asylum seekers (plaintiffs). Plaintiff M70/2011 is a 24-year-old male citizen of Afghanistan, and Plaintiff M106 of 2011 is a 16-year-old unaccompanied male citizen of Afghanistan. Both plaintiffs arrived at Christmas Island in August 2011 as part of a larger group of asylum seekers, and were identified as liable to transfer to Malaysia under the Malaysian Arrangement.

2.32      The plaintiffs commenced proceedings in the High Court seeking orders which included a declaration of invalidity in respect of the instrument made on 25 July 2011, and an order in the nature of prohibition to restrain the Minister and the Commonwealth from taking any steps to remove them from Australia.

2.33      The main issues considered by the High Court were whether the Minister's declaration of Malaysia had been validly made under section 198A of the Migration Act, and whether the Minister had satisfied the requirements of the Immigration (Guardianship of Children Act) 1946 (Guardianship of Children Act) in relation to the 16-year-old Afghan citizen.

2.34      On 31 August 2011, the High Court by majority (6:1) found that the Minister's declaration of Malaysia had been made without power and was therefore invalid. The basis for this finding was summarised in the joint majority judgment:

...the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, 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; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; 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). The Minister's conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration.[7]

2.35      The majority also found that the Minister was precluded from removing the 16-year-old plaintiff from Australia:

A determination by the Minister (or his delegate) that an unaccompanied minor should be taken from Australia to a country declared under s 198A(3)(a) of the Migration Act would not constitute a consent in writing of the kind required by s 6A of the [Guardian and Citizenship] Act. Nor would the exercise of power to take an offshore entry person to another country pursuant to s 198A(1) fall within the operation of s 6A(4) of the [Guardian and Citizenship]  Act and its provision that s 6A "shall not affect the operation of any other law regulating the departure of persons from Australia"...

Accordingly, removal of a person from Australia who is a "non-citizen child" within the meaning of the [Guardian and Citizenship]  Act, or the taking of that child to another country pursuant to s 198A, cannot lawfully be effected without the consent in writing of the Minister (or his delegate). The decision to grant a consent of that kind would be a decision under an enactment and would therefore engage the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, in particular, the provisions of that Act concerning the giving of reasons as well as the availability of review on any of the grounds stated in that Act.[8]

2.36      In response to the High Court's decision, the Prime Minister commented that it represented a 'missed opportunity':

...yesterday's High Court decision was a deeply disappointing one...Our legal advice was that our ability to do this was in the current law, we were advised that our legal case was strong, we were advised that our legal case was strong in part because the courts have considered similar questions in the past and looking to those precedents we were advised that if those precedents were followed our legal case would be a strong one. Yesterday in the High Court what we saw was the High Court enter into a different construction of the relevant section of the Migration Act. Effectively, if you like, yesterday the refugee and asylum seeker law of this country changed, changed from how it had been known and understood before with a different interpretation of the legislation. The High Court's decision basically turns on its head the understanding of the law in this country prior to yesterday's decision.[9]

2.37      However, the former Commonwealth Solicitor-General, Dr David Bennett AC QC, did not agree:

[The High Court] came to one of two possible conclusions. The High Court made no "new law" and the criticisms which have been publicly made of it are totally unfounded...The second criticism is that the High Court "missed an opportunity". But the court does not reason by choosing a politically preferred result and endeavouring to reach it in some legal way. Such a process would be improper and contrary to the rule of law.[10]

Implications of the High Court's decision on other offshore processing options

2.38      The Coalition opposes the Malaysian Arrangement and has consistently urged the Australian Government to reinstate the successful border protection policies of the Howard Government. This includes offshore processing on Nauru, temporary protection visas and turning boats around where it is safe to do so.

2.39      On 2 September 2011, legal opinion prepared for, and released by, the Australian Government by the current Solicitor-General, Mr Stephen Gageler SC, and two other senior counsel, Mr Stephen Lloyd SC and Mr Geoffrey Kennett SC, examined the implications of the High Court's ruling on offshore processing in Nauru and Papua New Guinea (PNG):

In the light of Plaintiff M70 we do not have reasonable confidence on the material with which we have been briefed that the power conferred by s 198A could currently be exercised to take asylum seekers from Australia to either Nauru or to PNG for determination of their refugee status. The accession of Nauru to the Convention Relating to the Status of Refugees (Refugees Convention) and the Protocol Relating to the Status of Refugees (Protocol) on 28 June 2011 nevertheless raises the possibility that the power conferred by s 198A would in the future be available to be exercised to take asylum seekers from Australia to Nauru for determination of their refugee status. We would have confidence that the power conferred by s 198A would be available to be exercised to take asylum seekers from Australia to Nauru only if it were able to be demonstrated to the satisfaction of an Australian court: first, that appropriate arrangements were in place to ensure practical compliance by Nauru with its obligations under the Convention and the Protocol; and, secondly, that Nauru in its treatment of asylum seekers and refugees complied in practice with human rights standards acceptable at least to the United Nations High Commissioner for Refugees. These are complex issues of fact and degree requiring detailed assessment and analysis. Even when that assessment and analysis was complete, the issues might well be the subject of contested evidence. In the absence of a detailed assessment and analysis of these issues, we are unable to form a view as to whether either of the two conditions we have identified would be capable of being demonstrated to the satisfaction of an Australian court.[11]

2.40      In contrast, Dr David Bennett's view is that the High Court's ruling does not necessarily preclude offshore processing in a third country and that the Solicitor-General's advice should not be regarded as conclusive because he did not have sufficient material to draw a detailed assessment of the relevant factors. Further, Dr Bennett believes that the newly interpreted legislative criteria would be satisfied if Australia were to be delegated the relevant operations in a third country, as was the case with Nauru:

The remaining question is what can be done. The position is complicated by the fact that there is a passage in the judgment of the Chief Justice suggesting that the minister needs to be satisfied on both legal compliance and compliance on the ground.

The second complication is that the High Court appears to have considered that its requirement of "legal compliance" could be met by domestic laws, international conventions or a binding agreement with Australia.

Third, there is a question not answered directly by the High Court whether compliance by the country delegating to Australia the relevant operations is sufficient to satisfy the criteria (as was achieved with Nauru). In my view it is.

Having said this, there is no legal reason why steps could not be taken with Nauru, Papua New Guinea or Malaysia (or indeed any other willing partner country), which would enable the minister to declare them satisfactory. It is significant that Nauru has now acceded to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Much attention to detail would be required. In particular, any agreement with Australia should, unlike the agreement with Malaysia, be expressed to be legally binding.

The Solicitor-General's advice that he did not have reasonable confidence that the power could be exercised in relation to Nauru or PNG depended on the fact that he had not been provided with sufficient material from which a detailed assessment of the relevant factors could be made. He does not appear to have been asked the question at all in relation to Malaysia or anywhere else. For these reasons, his views should not be regarded as final.[12]

Proposed amendments to the Migration Act

2.41      On 12 September 2011, the Prime Minister announced that the Australian Government would introduce legislation to enable the transfer of irregular maritime arrivals to third countries for the processing of their asylum claims and to 'provide for the Government to proceed with transfers under the Arrangement with Malaysia'.[13] On 16 September 2011, the Australian Government released an exposure draft of its proposed changes to the Migration Act: the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Bill).[14]

2.42      On 19 September 2011, the government released a revised exposure draft.[15] The revised exposure draft proposed a new subsection 198AB(1) of the Migration Act, which provides that the Minister may, in writing, designate that a country is an 'offshore processing country'. The only condition for the exercise of power under proposed subsection 198AB(1) is that the Minister thinks that it is in the 'national interest' to designate the country to be an offshore processing country (proposed new subsection 198AB(2)).

2.43      The revised proposed amendments to the Migration Act include two relevant considerations to the Minister's identification of the 'national interest' when exercising the discretion to declare a third country to be an offshore processing country, that is:

• any assurances provided by the third country that it will respect the principle of non-refoulement; and
• any assurances provided by the third country that it will make an assessment, or will permit an assessment to be made, of whether or not a transferee meets the criteria for protection under the Refugee Convention.[16]

2.44       The Coalition identified substantial defects in the proposed legislation – in particular, the bare requirement in the proposed amendments that the Minister need only be satisfied that the designation of an offshore processing country is in the 'national interest'.[17] The Leader of the Opposition, the Hon Tony Abbott MP commented:

The difficulty with the initial proposals [is] that [they] clearly [strip] out the protections which the Howard Government had explicitly built in to the Migration Act to ensure that people who were sent for offshore processing did not lose ordinary human rights protections. Effectively, the proposals that the Government put to us [on 16 September 2011] amount to offshore dumping, not offshore processing...

Effectively, the new proposal that the Government has put [on 19 September] concedes the force of [the Coalition's] argument...without actually addressing it. What the Government's new proposal [of 19 September] does is pay lip service to protections without actually guaranteeing them.[18]

2.45      The Coalition sought the advice of Dr Bennett in relation to the proposed amendments in both the first and second exposure drafts of the Bill. Dr Bennett commented that the proposed amendments in the first exposure draft gave the Minister 'a virtually unfettered discretion as to what countries he declares', which may violate Australia's non-refoulement obligations under the Refugee Convention.[19]

2.46      Dr Bennett advised that the corresponding provisions in the second exposure draft are 'also wide and subjective' and would require a court reviewing the Minister's decision 'to analyse the assurances very precisely in order to determine whether they satisfy the statutory requirement'. Dr Bennett advised further that the proposed provision makes 'no reference to the other [Refugee Convention] requirements, but merely permits the Minister to have regard to them'.[20]

2.47      The Coalition has indicated that it will only support the Bill if the government agrees to a proposed amendment which would expressly provide that, in order to declare a third country as an 'offshore processing country' under the Migration Act, the Minister must be satisfied that such a declaration would be in the national interest, and the offshore processing country is a party to the Refugee Convention and Refugee Protocol.[21]

2.48      In his advice to the Coalition, Dr Bennett noted:

The draft Coalition amendments have the effect of directly incorporating the provisions of the Convention by requiring, in effect, that the country be a party to it. This is a simple, objective criterion although there might be room for slight debate if a country were a party to the Convention or Protocol with reservations. I do not know whether any relevant countries are in this position.[22]

2.49      Dr Bennett concluded that the Coalition amendments provide 'more protection for asylum-seekers than the two Government versions and [are] less likely to be the subject of complex judicial proceedings'.[23]

2.50      On 19 September 2011, Mr Abbott reiterated Dr Bennett's advice:

Former Solicitor-General David Bennett AC QC has provided written advice today on the two sets of amendments proposed by Labor as well as the Coalition's alternative. In Mr Bennett's opinion the Coalition's plan "provides more protection for asylum-seekers than the two Government versions and it is less likely to be the subject of complex judicial proceedings."[24]

2.51      On 21 September 2011, the Bill was introduced into the House of Representatives.[25] The Bill, as introduced, includes the provisions contained in the second exposure draft which pertain to the designation of a third country as an 'offshore processing country' under the Migration Act.[26] The Shadow Minister for Immigration and Citizenship, Mr Scott Morrison MP, has circulated the Coalition's foreshadowed proposed amendments that he will move on behalf of the Coalition in the House of Representatives.[27]

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