What the Malaysian refugee High Court decision says

Section 198A(3)(a) does not refer to the Minister being satisfied of the existence of those criteria or provide that the Minister's forming of an opinion about those matters is a condition for the exercise of the discretion to make a declaration. Rather, the Minister is given a discretion, and thus has power, to declare that a specified country has the relevant characteristics. On its face, it is not a power to declare that the Minister thinks or believes or is satisfied that the country has those characteristics. The plaintiffs submitted that the criteria in sub-pars (i) to (iv) of s 198A(3)(a) are jurisdictional facts. They submitted that the matters stated in the criteria must be satisfied before a declaration could validly be made.

French CJ rejected the plaintiffs' "jurisdictional fact" submission (as, apparently, did Kiefel J in a separate judgment). It is unsurprising that French CJ did so, as he had rejected a "jurisdictional fact" submission in 2003 when he was a Federal Court judge and an Afghan refugee sought to challenge removal to Nauru pursuant to s 198(1): see P1/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1029. This perhaps explains why the Federal Government was confident that the legality of its scheme would be upheld. However, in P1, the court was not called upon to ask whether the Minister had asked the right questions when declaring Nauru to be a country to which refugees could be removed.

Both French CJ and Kiefel J found that the Minister did not ask the correct questions when determining whether Malaysia was a country to which refugees could be sent. First, the Minister was required to make a judgment as to the provision of access, protection and the meeting of human rights standards in providing protection which was more than merely transient: it had to describe a present and continuing circumstance. At [62], French CJ said:

It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is "keen to improve its treatment of refugees and asylum seekers". Nor could a declaration rest upon a belief that the government of the specified country has "made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers" or that it had "begun the process of improving the protection offered to such persons". Yet the Minister's affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration.

Further, the Minister erred because he did not focus upon the laws in effect in Malaysia and rather looked to what Malaysian practice was. French CJ continued at [66]:

...The questions the Minister must ask himself, about whether the relevant "access" and "protection" are provided and "human rights standards" are met, are questions which cannot be answered without reference to the domestic laws of the specified country, including its Constitution and statute laws, and the international legal obligations to which it has bound itself. The use of the terms "provides access ... to effective procedures", "protection" and "relevant human rights standards" are all indicative of enduring legal frameworks. Having regard to the Minister's concession and what appears, in any event, from the submissions upon which the Minister acted and his affidavit, it is clear that he did not look to, and did not find, any basis for his declaration in Malaysia's international obligations or relevant domestic laws. There is no indication that the apparent legal fragility of the exemption order under the Malaysian Immigration Act and the associated risks to transferees were drawn to his attention. Important elements of his decision were the non-binding Arrangement, conversations he had undertaken with his ministerial counterpart in Malaysia, and observations by DFAT about contemporary practices with respect to asylum seekers in that country. (emphasis added)

The focus of the Minister was on the wrong issue: not the actual law in Malaysia or the way in which its domestic law operated in respect of asylum seekers and refugees. It is clear that his Honour was unimpressed with the lack of attention to the fact that Malaysia does not recognise the status of refugees in either international or domestic law.

Furthermore, as Kiefel J noted in her judgment at [242] - [244], it was not enough that an non-government agency in Malaysia assessed refugee status (namely the UNHCR). Instead, the section contemplated that the declared country itself should determine refugee status, because this would mean that the country was bound by its determination, and thereby recognised refugee status, and protected those who had such a status. She noted at [244] that it was not actually necessary for Malaysia to be a party to the Refugee Convention as long as it recognises and protects refugees under its domestic law, although naturally it was more likely that a country who was a party to the Convention would have domestic laws providing for recognition and protection if they were a party to the Convention.

Thus any country about which a declaration is made must actually have legal mechanisms which allow for provision of the various protections, not simply practices that appear to provide the various protections. The majority rejected the proposition that the Minister must merely believe in a bona fide manner that the relevant criteria were met, as this was not consonant with the purpose, words and context of the section. The essence of the judgments seem to boil down to the fact that, as Malaysia '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 … is not party to the Refugees Convention or the Refugees Protocol … and … has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments…' and therefore '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)': (see para [135]).

Fascinatingly, the plurality also cast some doubt on the Nauru "solution", saying at [126] – [128]:

A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. Not only did the Arrangement not oblige Malaysia to provide any of those rights, no provision was made in the Arrangement that (if carried out) would provide any of those rights.

The Minister and the Commonwealth also submitted that the circumstances in which s 198A was enacted pointed against the adoption of this construction of the section. They submitted that s 198A was enacted with a view to declaring that Nauru is a country specified for the purposes of s 198A and that it was known, before the enactment of s 198A, that Nauru was not a signatory to the Refugees Convention or the Refugees Protocol.

Two points may be made about this submission. First, it is by no means clear what use the Minister and the Commonwealth sought to make in the proper construction of the provision of what they asserted to be facts known to those who promoted the legislation. The facts asserted do not identify any mischief to which the provision was directed. Rather, it seemed that the facts were put forward as indicating what those who promoted the legislation hoped or intended might be achieved by it. But those hopes or intentions do not bear upon the curial determination of the question of construction of the legislative text. Second, even assuming them to be in some way relevant, the arrangements made with Nauru were very different from those that are now in issue. Not least is that so because Australia, not Nauru as the receiving country, was to provide or secure the provision of the assessment and other steps that had to be taken, as well as the maintenance in the meantime of those who claimed to be seeking protection. Thus it was Australia, not the receiving country, that was to provide the access and protections in question. Further, although the arrangement between Australia and Nauru was recorded in a very short document, the better view of that document may be that it created obligations between the signatory states. But whether or not the arrangements with Nauru had the various features that have been identified, the question of statutory construction should be resolved in the manner indicated.

(b) Reliance on general power under s 198