Injunction against the government's Malaysian 'arrangement'

On Monday 8 August 2011, a single judge of the High Court (Justice Hayne) granted interlocutory relief (an injunction) in the case of Shah & Ors v Minister for Immigration and Citizenship & Anor. This interim measure prevents the Commonwealth Government from removing the first group of 16 asylum seekers from Christmas Island to Malaysia as planned under the notorious recent deal with that country. The injunction was granted to enable the matters in dispute to be heard by the Full Bench in the week commencing 22 August (without an injunction, the Government could proceed with removal, rendering the whole case moot).

This is not a case, as you might imagine, based primarily on international law, or even human rights (although it obviously calls these into question). The case centres on Australian law, because this is the law which can truly restrain the Government. Having said that, some Australian law is based on international law, and this includes the Migration Act 1958 (Cth). The purpose of the sections of this Act dealing with asylum seekers is, broadly speaking, to implement Australia's obligations under the 1951 Convention on the Status of Refugees and its 1967 Optional Protocol. The most important aspect of this is that it allows people to seek asylum in Australia when they are fleeing persecution – this is the Humanitarian/Protection Visa regime.

Despite their right to apply for protection in Australia, those who arrive here without obtaining a visa in advance are classified under the Act as 'unlawful non-citizens' and subject to mandatory detention. If they arrive on a boat and are intercepted outside the 'migration zone,' they are further classified as 'offshore entry persons.' Under s 198A of the Act, such people can be taken (by force if necessary) to another country to have their claim to refugee status processed. However, the Minister is required under 198A(3) to declare (in writing) that this other 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.

This, obviously, is to ensure that 'offshore entry persons' are not subject to danger or to a 2^nd-class refugee processing system. As the barrister for the asylum seekers (Debbie Mortimer SC) put it: "…it is unsurprising that the Parliament has required a declaration that any third country, in effect and in practice, meet the same standards that are available to persons seeking Australia's protection if they are processed onshore [ie in Australia]." Under the Malaysian arrangement, Minister Bowen was therefore required to make such a declaration in respect of Malaysia.

In seeking the injunction, David Manne, Debbie Mortimer and their team questioned (a) whether the Minister had made such a declaration as a proper, enforceable legislative instrument, and (b) whether the Minister was actually required to be satisfied that Malaysia met the requirements above before making a declaration. In their submission, they effectively asked how the requirements of s 198A could possibly be fulfilled by a country which is party to neither the Refugees Convention nor the International Covenant on Civil and Political Rights(ICCPR), has no relevant domestic obligations, and is widely reported to mistreat asylum seekers (and not just by NGOs).

The team put other arguments to the court, including significant administrative law arguments, but there's not room here for a full run-down. For further information, please read the transcript. I recommend you read it anyway, since Justice Hayne was in fine form yesterday – a few choice snippets:

[In response to Ms Mortimer's comment that she is reluctant to concede a point]: It is no part of counsel's job to give away points, I understand that, Ms Mortimer. Counsel are paid, or in this case I suspect not paid, to have the belt, the braces and the piece of string around the trousers as well, I understand all of that, but we need to understand what the serious question is to be tried.

[As the Solititor-General begins his argument]: "Before you proceed further, how long is this affidavit going to take, Mr Solicitor? It is unsatisfactory that the matter proceed in this half-baked fashion." [I winced at this one, having been a Government lawyer in a former life.]