Court/Judicial body: High Court of Australia
Date: 31 August 2011 CRC
Provisions: Article 10(2): Right of the child and their parents to leave any country and to enter their own country
Other international provisions: Convention relating to the Status of Refugees (“Refugees Convention”) Protocol relating to the Status of Refugees (“Refugees Protocol”) International Covenant on Civil and Political Rights, Article 12(4) International Convention on the Elimination of All Forms of Racial Discrimination, Article 5(d)(ii) Convention on the Rights of Persons with Disabilities, Article 18(1)(d) Havana Convention on the Status of Aliens, Article 6 Universal Declaration of Human Rights, Article 13(2) Convention for the Elimination of All Forms of Discrimination against Women, Article 15(4)
Domestic provisions: Constitution of Australia, sections 75(iii) and (v) Migration Act 1958 (Cth), sections 189, 198 and 198A Immigration (Guardianship of Children) Act 1946 (Cth) (“IGOC Act”), sections 4AAA, 6, and 6A Migration Amendment (Excision from the Migration Zone) Act 2001 (Cth) Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001 (Cth)
Background: On 25 July 2011, Australia and Malaysia entered into a bilateral arrangement for the transfer to Malaysia, without prior assessment of their protection claims, of up to 800 asylum seekers irregularly arriving in Australia by sea after that date (“Arrangement”). On that same date, the Immigration Minister made a declaration under section 198A(3) of the Migration Act concluding that Malaysia provides asylum seekers protection and access to effective procedures, and meets relevant human rights standards in providing that protection (“Declaration”). The plaintiffs, who were citizens of Afghanistan, arrived at the Australian territory of Christmas Island on 4 August 2011 in a boat which had sailed to Australia from Indonesia, seeking asylum in Australia as refugees under the Refugees Convention. Plaintiff M70, an adult, and Plaintiff M106, an unaccompanied 16-year-old, were detained upon their arrival at Christmas Island and were subject to removal to Malaysia under the Arrangement. The plaintiffs sought, and the Court made, an order restraining the government from removing them from Australia until the hearing and determination of their applications to the Court. The plaintiffs claimed that the Minister’s Declaration was invalid as Malaysia is not bound by international or domestic law to protect the rights of asylum seekers, and therefore the government did not have the power under the Migration Act to remove them from Australia. Plaintiff M106 also claimed that his removal to Malaysia would not be in his best interests, that the Minister’s responsibility as his guardian under the IGOC Act required that he consider exercising his power under the Migration Act to allow M106 to apply for a visa, and that the Minister’s consent in writing was required before M106 could be removed from Australia.
Issue and resolution: Legality of transferring asylum-seekers, including unaccompanied minors, whose protection claims have not been assessed to another country. The High Court held that: – the Minister’s Declaration in relation to Malaysia is invalid, and therefore there is no power under the law to remove the plaintiffs to Malaysia; and – an unaccompanied asylum seeker under 18 may not lawfully be taken from Australia without the Minister’s written consent under the IGOC Act. The Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking the two plaintiffs to Malaysia. The Court also granted an injunction restraining the Minister from removing Plaintiff M106 from Australia without the Minister’s written consent.
Court reasoning: The High Court held that asylum-seeking offshore entry persons (persons who have entered Australia from an excised offshore place (such as Christmas Island) and become unlawful non-citizens) whose claims for protection have not been assessed by Australian authorities (such as the plaintiffs) may only be taken to another country (such as Malaysia) pursuant to section 198A of the Migration Act, and only if there has been a valid declaration made in relation to that country under section 198A(3). The Minister can only validly declare a country (as a country to which asylum seekers can be taken for processing) if that country meets certain criteria specified in section 198A(3)- 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, the country must meet certain human rights standards in providing that protection. The Court observed that Malaysia does not recognise the status of refugee in its domestic law, and does not undertake any activities related to the processing of asylum seekers and refugees. Moreover, Malaysia is not a party to the Refugees Convention or the Refugees Protocol, and does not have a legally binding agreement with Australia obliging it to provide the protections in those instruments. Therefore, it was not open to the Minister to conclude that Malaysia meets the criteria in section 198A, and therefore his Declaration in relation to Malaysia was invalid. Moreover, the Minister had no other power under the Migration Act to remove the plaintiffs from Australia. The Court also found that an unaccompanied asylum seeker under 18 may not lawfully be taken from Australia without the Minister’s written consent under the IGOC Act, and such consent can only be granted if the Minister is satisfied that it would not harm the interests of the child. In this case, the Minister had not granted such consent.
Excerpt citing CRC and other relevant human rights 92. Australia’s power to remove non-citizens from its territory is confined by the practical necessity to find a state that will receive the person who is to be removed. Ordinarily, Australia would look, in the first instance, to a person’s country of nationality to receive that person. Australia would do that on the footing that it has long been accepted, as a principle of international law, that the national of a country has a right to re-enter the territory of that country and a country of nationality has a duty to admit its nationals to its territory. This principle of customary international law is reflected, but not in any way superseded, in many international instruments to which Australia is party. (FN92. International Covenant on Civil and Political Rights (1966), Art 12(4); International Convention on the Elimination of All Forms of Racial Discrimination (1969), Art 5(d)(ii); Convention on the Rights of the Child (1989), Art 10(2); Convention on the Rights of Persons with Disabilities (2006), Art 18(1)(d). See also Havana Convention on the Status of Aliens  LNTSer 177; (1928) 132 LNTS 301, Art 6; Universal Declaration of Human Rights, GA Res 217A (III), 10 December 1948, Art 13(2). cf Convention for the Elimination of All Forms of Discrimination against Women (1979), Art 15(4).) 93. The general expectation that Australia can and should look to the country of a person’s nationality to receive that person on removal from Australia is necessarily subject to some qualifications… 94. The second and more relevant qualification is that Australia (and any other party to the Refugees Convention and the Refugees Protocol) would act in breach of its international obligations under those instruments if it were to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution “to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion” (FN. 94 Refugees Convention, Art 33(1)). Accordingly, for Australia to remove a person from its territory, whether to the person’s country of nationality or to some third country willing to receive the person, without Australia first having decided whether the person concerned has a well-founded fear of persecution for a Convention reason may put Australia in breach of the obligations it undertook as party to the Refugees Convention and the Refugees Protocol, in particular the non-refoulement obligations undertaken in Art 33(1) of the Refugees Convention. … 98. … [To] read s 198(2) of the Act as providing a power to remove from Australia to any country that is willing to receive the person concerned any offshore entry person who claims to be a person to whom Australia owes protection obligations, but whose claims have not been assessed, would deny the legislative intention evident from the Act as a whole: that its provisions are intended to facilitate Australia’s compliance with the obligations undertaken in the Refugees Convention and the Refugees Protocol. … 117. When s 198A(3)(a) speaks of a country that provides access and protections it uses language that directs attention to the kinds of obligation that Australia and other signatories have undertaken under the Refugees Convention and the Refugees Protocol… Those obligations include: – to apply the provisions of the Convention to refugees without discrimination as to race, religion or country of origin; – to accord to refugees within a signatory’s territory treatment at least as favourable as that accorded to its nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children; – to accord to a refugee free access to the courts of law; – to accord to refugees lawfully staying in its territory the most favourable treatment accorded to nationals of a foreign country in the same circumstances as regards the right to engage in wage-earning employment; – to accord to refugees the same treatment as is accorded to nationals with respect to elementary education; and – to accord to refugees lawfully in its territory the right to choose their place of residence and to move freely within its territory, subject to any regulations applicable to aliens generally in the same circumstances. … What is clear is that signatories to the Refugees Convention and the Refugees Protocol are bound to accord to those who have been determined to be refugees the rights that are specified in those instruments including the rights earlier described. 118. The references in s 198A(3)(a)(i) to (iii) to a country that provides access to certain procedures and provides protections of certain kinds must be understood as referring to access and protections of the kinds that Australia undertook to provide by signing the Refugees Convention and the Refugees Protocol. In that sense the criteria stated in s 198A(3)(a)(i) to (iii) are to be understood as a reflex of Australia’s obligations. Notes: In October 2011, the Australian government officially abandoned its “Malaysia solution”, stating that it would process asylum seekers on Australian territory. In 2012, Federal Parliament amended the Migration Act by removing section 198A, replacing the criteria with new provisions which state that the “only condition” for the Minister to approve the transfer of asylum seekers to another country is that the Minister thinks that it is in Australia’s “national interest”. In July 2013, Australia and Papua New Guinea signed a regional agreement under which all asylum seekers who travel to Australia by boat will be removed to PNG for processing and resettlement there. This arrangement is currently under challenge in the High Court. CRIN Comments: CRIN believes this decision is consistent with the CRC. Article 22 provides that special protection shall be granted to a refugee child or to a child seeking refugee status, whether unaccompanied or accompanied by their parents or any other person. Moreover, Article 3 provides that in all actions concerning children, the best interests of the child shall be a primary consideration. Citation:  HCA 32 Link to Full Judgment:http://www.austlii.edu.au/au/cases/cth/HCA/2011/32.html This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice. Related International Convention on the Elimination of All Forms of Racial DiscriminationInternational Covenant on Civil and Political RightsUN Convention on the Elimination of All Forms of Discrimination against WomenUN Convention on the Rights of Persons with DisabilitiesUN Convention relating to the Status of RefugeesUniversal Declaration of Human Rights Countries Australia CRIN does not accredit or validate any of the organisations listed in our directory. The views and activities of the listed organisations do not necessarily reflect the views or activities of CRIN’s coordination team.