2013

Jurisdictional Error in Offshore Processing The legality of the Australian Minister for Immigration’s designation of Papua New Guinea as a regional processing centre for asylum seekers

Chantal McNaught

I INTRODUCTION

The purpose of this paper is to address vocal public concerns1 surrounding the legality of the

decision made by the Minister for Immigration and Citizenship to designate Papua New

Guinea (PNG) as an offshore processing country. Specifically, the author argues that it was

within the Minister’s power to consider Australia’s international obligation of non-

refoulement in his exercise to designate PNG. Moreover, the Minister fell into error as he

addressed Australia’s international obligations but elected to decide that it was in the national

interest to not consider the practical application of protecting Australia’s obligations through

the PNG designation. The author contends that this amounted to a failure on the Minister’s

behalf to ask himself the correct question.

A Mechanics of an application for judicial review

It is necessary to first address practical issues, should a plaintiff wish to seek remedy in the

High Court of Australia. In order for a valid application pursuant to s75 (v)2 to be made, the

matter of whether the Minister’s decision was valid requires an affected plaintiff.

This mechanic could be troublesome due to the nature of irregular maritime arrivals being

assessed in relatively short periods of time prior to being transferred to Manus Island and

Nauru.

If a plaintiff is successful in obtaining legal assistance and validly submits an application to

the High Court for a review of the decision to remove the plaintiff, prior to their removal, the

High Court may issue injunctive relief pending its review of the matter.

1 Susan Harris Rimmer, ‘The Top 10 Mistakes in the PNG Solution’ Australian Broadcasting Authority (24 July

2013) available at http://www.abc.net.au/news/2013-07-24/harris-rimmer-the-top-10-mistakes-in-rudds-png-

solution/4838586 (accessed 17 October 2013); ‘Fact Check Q&A: how hard would it be to defeat the PNG

asylum-seeker deal through the courts?’ The Conversation (24 July 2013) available at

http://theconversation.com/factcheck-qanda-how-hard-would-it-be-to-defeat-the-png-asylum-seeker-deal-

through-the-courts-16306.

B The Memorandum of Understanding and Instrument of Designation

Central to the author’s arguments are the Memorandum of Understanding (the MOU),3 the

Instrument of Designation,4 and the Statement of Reasons5 of which the contents will be

considered and referred to throughout this paper.

II AUSTRALIA’S NON-REFOULEMENT OBLIGATIONS PURSUANT TO THE REFUGEE

CONVENTION AND THE ICCPR

In this section the author attempts to define the nature and scope of the principle of non-

refoulement. The principle, also deemed the prohibition against expulsion,6 seeks to impose

upon member States of the Refugee Convention7 an obligation to protect refugee applicants

from repatriation to a State where the applicants would be persecuted. The purpose of

defining the perimeters of the principle is to clarify Australia’s international obligation of

non-refoulement in the hope to identify the extent of which this obligation is reflected in the

Migration Act 1958 (Cth).

2 Australian Constitution.

3 Memorandum of Understanding Between the Government of the Independent State of Papua New Guinea and

the Government of Australia, Relating to the Transfer and to the Assessment of Persons in Papua New Guinea,

and Related Issues, Australia – Papua New Guinea, Signed 8 September 2012.

4 Minister for Immigration and Citizenship, Instrument of Designation of the Independent State of Papua ew

Guinea as a Regional Processing Country under the Subsection 198AB(1) of the Migration Act 1958,

F2012L02003, 9 October 2012.

5 Minister for Immigration and Citizenship, Statement of reasons for thinking that it is in the national interest to

designate the Independent State of Papua New Guinea to be a regional processing country, 9 October 2012.

6 Ian Brownlie and Guy Goodwin-Gill (ed), Brownlie’s Documents on Human Rights (Oxford University Press,

2010), 998.

7 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into

force 22 Apr. 1954), art 33(1), (Refugee Convention), read together with the Protocol Relating to the Status of

Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

The principle of non-refoulement is a clear obligation ‘couched in negative terms’8 which is

imposed under international law9 and is articulated as:

No Contracting State shall expel or return (“refouler”) a refugee in any manner

whatsoever to the frontiers of territories where his [or her] life or freedom would be

threatened on account of his [or her] race, religion, nationality, membership of a

particular social group or political opinion.10

This negatively framed obligation of non-refouler is also incorporated by inference in Art 7

of the International Covenant on Civil and Political Rights, which states that ‘[n]o one shall

be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’11 The

principle can also be found in other international legal instruments and is arguably a principle

of customary international law.12

8 Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131,

[39].

9 Ian Brownlie and Guy Goodwin-Gill (ed), above n 6, 998; Angus Francis, ‘Bringing Protection Home: Healing

the Schism Between International Obligations and National Safeguards Created by Extraterritorial Processing’

(2008) 20 International Journal of Refugee Law 253, 255.

10 Refugee Convention, Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law, (Oxford

University Press, 3rd ed, 2007), 201; Convention Relating to the International Status of Refugees; Provisional

Arrangement Concerning the Status of Refugees Coming from Germany, 171 LNTS 75 (entered into force 4

July 1936), Art 4.

11 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS

172 (entered into force 23 March 1976) (ICCPR); Human Rights Committee, General Comment N 31 (2004),

para 12. The HRC is of the opinion that under Art 7 of the ICCPR ‘States Parties must not expose individuals to

the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by

way of their extradition, expulsion, or refoulement.’ UN Human Rights Committee, (10 March 1992) General

Comment No 20: Article 7 Prohibition of torture, or other cruel, inhuman or degrading treatment or

punishment, UN Doc HRI/GEN/1/Rev.7, [9].

12 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for

signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987), art 3 (CAT); UN Human Rights

Committee, (26 May 2004) General Comment No 31: Nature of the General Legal Obligation on States Parties

to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13, [12]; Art 3, para 1, Declaration on Territorial Asylum, GA

res 2312, 22 UN GAOR Supp 16, 81, UN Doc A/5217; ARJ v Australia, Communication No 692/1996, 11

August 1997, UN Doc CCPR/C/60/D/692/1996, [6.8]-[6.9]; R (on the application of Ullah) v Special

Adjudicator [2004] All ER 153, [21]-[24] (Lord Bingham).

The non-refoulement obligation on States is attached and applied to all individuals who are

determined to be refugees in accordance with Art 1A of the Refugee Convention.13 The

obligation also applies to asylum seekers within the temporal limits of assessment. Any

individuals which do not fall into these two categories cannot be afforded the non-

refoulement protection.14 In this regard, those who are prima facie entitled to refugee status

are thus entitled to the protection against refouler.15

How the non-refoulement obligation is activated in international law is not dependent on any

formal determination of refugee status 16 and as a consequence, States can be in violation of

the non-refoulement obligation without a determination of fault. This is a necessary

applicable international standard. 17

Defining the degree and scope of the non-refoulement obligation is a more difficult exercise

than the mere application of the obligation.18 As there is no right to asylum,19 this can be

13 R v Secretary of State for the Home Department, ex parte Sivakumaran [1998] 1 All ER 193 (UK HL, 16

December 1987), 202-203 (Lord Goff); M38/2002 v Minister for Immigration and Multicultural and Indigenous

Affairs [2003] FCAFC 131; Attorney General v Zaouri, [2004] NZCA 20, [36].

14 Goodwin-Gill and McAdam, above n 10, 232.

15 Ibid, 233; Conclusion on Non-refoulement, GA Res 52/103, UNGAOR 52nd sess, UN Doc A/RES/52/103 (12

December 1997), para 5; Executive Committee Conclusion No 6 (1977), Conclusion on Non-refoulement;

Executive Committee Conclusion No 79 (1996), No 81 (1997) and no 82 (1997) Conclusion on Safeguarding

Asylum; R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666,

[31].

16 Report of the United Nations High Commissioner for Refugees, paras 22-23, UN Doc E/1985/62 (1985);

Report on the Twenty-eighth Session of the Executive Committee of the High Commission’s Programme, para

53(4)(c), UN Doc A/AC.96/549 (1977).

17 Guy Goodwin-Gill, ‘Non-Refoulement and the New Asylum Seekers’ (1986) 26 Virginia Journal of

International Law 897, 902.

18 Angus Francis, The Role of Legislative, Executive, and Judicial Mechanisms in Ensuring a Fair and Effective

Asylum Process, (PhD Thesis, The Australian National University, 2008), 5.

19 See the discussion ff 8 in Geoff Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ (2004) 5

European Journal of International Law 963, 965: Universal Declaration of Human Rights, GA Res 217A (III),

UN GAOR, 3rd sess, 183rd Plen mtg, UN Doc A/810 (10 December 1948) art 14 only provides for the right to

seek and enjoy asylum not the right to asylum.

problematic in determining the extent of a member State’s sovereign right to eject asylum

seekers from its territorial jurisdiction.

Due to the fact that the non-refoulement protections are not synonymous with the grant of

asylum, and State policies of non-entrée do not amount to refouler,20 can a member State

enjoy an unfettered discretion to avoid the non-refoulement obligation through the strategic

application of its migration programs? More appropriately, can a State such as Australia,

appropriately remove individuals who would otherwise be afforded non-refoulement

protections, to a third-State which may or may not be a member of the Refugee Convention?

This question strikes to the heart of the author’s argument; if Australia can defer its

international obligations to another State, what safeguards are imposed and to what extent

have these safeguards been transformed into municipal law?

In answering the first question it should be noted that States cannot simply renounce their

protection obligations by refusing to assess asylum seekers of their refugee status claims.21 A

consequence of this is that international standards have been drafted by the United Nations

High Commissioner for Refugees22 in order to ensure appropriate and adequate protections

are in place for individuals, where the protection against refoulement would apply.

20 Jahid Hossain Bhuiyan, ‘Protection of Refugees through the Principle of Non-Refoulement’ in Rafiqul Islam

and Jahid Hossain Bhuiyan (eds) An Introduction to International Refugee Law (Martinus Nijhoff Publishers,

2013), 107.

21 Angus Francis, above n 18, 7 citing UNHCR, Handbook on Procedures and Criteria for Determining Refugee

Status, [28] (1979) (‘A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the

criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is

formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him

to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee’). See

also, J Hathaway and J Dent, Refugee Rights: Report on a Comparative Survey (York Lanes Press, 1995), 7.

22 UN High Commissioner for Refugees (UNHCR), Refugee Protection and Mixed Migration: A 10-Point Plan

of Action, January 2007, Rev.1, available at: http://www.refworld.org/docid/45b0c09b2.html (accessed 1

November 2013).

In the specific circumstance of member States which purport to send individuals, whom non-

refoulement obligations apply, to receiving States, can only rely on diplomatic assurances

from the receiving States if those assurances are:23

(i) a suitable means to eliminate the danger to the individual concerned, and

(ii) if the sending State may, in good faith, consider them reliable.24

Notably, however, the United States case of Sale v Haitian Centres Council25 compounds the

difficulty in addressing the issue of State jurisdiction over individuals where the protection of

non-refoulement would apply. 26 That case in point surrounded the signing by President

George Bush of Order 12807 27 which directed the Coast Guard to intercept vessels

transporting Haitian asylum applicants to the United States and return them to Haiti without

assessing their claims. The Supreme Court of the United States determined that the non-

refoulement obligation did not apply because the directive operated outside of the territorial

boundary of the United States.

The United States Supreme Court decision has ignited immense debate over the exact nature

and scope of the non-refoulement principle and how it relates to State jurisdiction (and with

it, State Responsibility). Commentary in support of the position that the application of non-

23 UN High Commissioner for Refugees (UNHCR), UNHCR Note on Diplomatic Assurances and International

Refugee Protection, August 2006, available at: http://www.refworld.org/docid/44dc81164.html (accessed 1

November 2013).

24 Committee Against Torture, Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003, 20 May 2005, para 13.5.

25 509 US 155.

26 See generally, Jahid Hossain Bhuiyan, above n 20; Robert Newmark, ‘Non-Refoulement Run Afoul: The

Questionable Legality of Extraterritorial Repatriation Programs (1993) 71 Washington University Law Review

833.

27 Executive Order no 12, 807, 3 CFR 303 (1993).

refoulement is restricted to territorial jurisdiction, rather than jurisdiction du jure,28 appears to

be favoured by States which wish to delegate Convention obligations.

Despite this support of the position taken in the Sale decision,29 the preferable position:

…is that the non-refoulement obligation prevents [S]tates from reaching beyond their

borders to return a refugee, directly or indirectly, to a place where he or she has a

well-founded fear of persecution.30

Interestingly, the application of the non-refoulement obligation is a function of a refugee’s

right of entry and right to remain in the protection of a State party. As a consequence, the

State is not obliged to allow the refugee to remain within its territory if and when the risk of

refouler ends.31 The author contends that this would naturally apply to the operation of non-

refouler to asylum applicants who are transferred to receiving States or other State members.

Indeed, it is conceded that, as a matter of international law, the obligation of non-refoulement

would not be infringed if the receiving State were a party to the Refugee Convention.32 This

would be such as the rights of the refugee applicant would be accrued against both the

28 N Robinson, Convention Relating to the Status of Refugees: Its History, Contents and Interpretation – A

Commentary (Institute for Jewish Affairs, 1953), 163.

29 Grahl-Madsen, Commentary on the Refugee Convention 1951, Articles 2-11, 13-37, Published by the Division

of International Protection of the United Nations High Commissioner for Refugees 1997, commentary on art

33(1), [3]; Robinson, Convention relating to the Status of Refugees, Its History, Contents and Interpretation, A

Commentary (Institute of Jewish Affairs, 1953), 163.

30 Angus Francis, above n 18, 168; Haitian Centre for Human Rights v United Nations, Case 10. 675, Report No

51/96, Inter-am CHR Doc OEA/Ser.L/V/II 95 Doc 7 rev (13 March 1997), paras 156-58; Human Rights

Committee, Concluding Observations of the Human Rights Committee: United States of America, UN Doc

CCPR/C/79/Add.50 (6 April 1995), para 284; Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-cross (ed),

Foundations of International Migration Law (Cambridge University Press, 2012), 193; Louis Henkin, ‘Notes

From the President’ (1993) 5 American Society of International Law Newsletter 1; Ad Hoc Committee on

Statelessness and Related Problems, First Session, 22nd meeting, UN Doc E/AC.32/SR.22 (14 February 1950)

20 (Mr Cuvelier of Belgium).

31 R v Secretary of State for the Home Department; Ex parte Thangarasa; R v Secretary for the Home

Department; Ex parte Yogathas [2002] UKHL 36.

32 Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-cross (ed), above n 30, 196.

sending State and the receiving State. In the event of a non-consensual delegation of refugee

processing, ‘anxious scrutiny’33 to prevent rights stripping is expected.34 To designate a non-

member State without the accrued rights would be the equivalent to a direct breach of the

non-refoulement principle.35

In summary, the nature and application of the non-refoulement obligation extends to States

where jurisdictional control is placed over migrants who claim to be seeking refuge in

accordance with the Refugee Convention. A State wishing to delegate its Refugee Convention

obligations to formally process a refugee claim can do so by transferring the individual to

another member State to the Refugee Convention. Diplomatic assurances must not be mere

puff and are to have a factual foundation in the receiving State’s ability to process the

individual who has accrued rights under the Refugee Convention. In the following section the

author will answer the second part of the question posed; to what extent is this international

legal position reflected in municipal law in the Migration Act 1985 (Cth)?

III THE EXTENT TO WHICH THE NON-REFOULEMENT PRINCIPLE IS TRANSFORMED IN

AUSTRALIAN MUNICIPAL LAW

This section focuses on the development of international law within Australia. Australia’s

legal system is positively dualist and for international law to operate within Australia’s

municipal law, the legislature must transform the international obligations into relevant

statutory provisions.36 For the purpose of the author’s argument, only the ‘domesticated’37

33 R v Secretary of State for the Home Department; Ex parte Thangarasa; R v Secretary of State for the Home

Department; Ex parte Yogathas [2002] UKHL 36, 58.

34 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for

Immigration and Citizenship (2011)244 CLR 144.

35 Brian Opeskin, Richard Perruchoud, Jillyanne Redpath-cross (ed), above n 30, 196.

36 Simsek v MacPhee (1982) 148 CLR 636, 641-642; Dietrich v The Queen (1992) 177 CLR 292; Chu Kheng

Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1.

version of Australia’s non-refoulement obligation can be disputed in Australia’s municipal

courts. That said, it is necessary to appreciate the approaches implemented by the judiciary if

the question was posed in the High Court of Australia.

A general rule was developed in Gerhardy v Brown38 by Mason J, and His Honour took the

approach to look into what obligation the Convention was introducing and how those

obligations informed the municipal law to accurately interpret the ‘human rights and

fundamental freedoms of the kind to which the Convention refers.’39

This development continued with the preeminent legal reasoning of Dietrich v The Queen,40 a

case on the right to fair trial41 which revealed the High Court’s lift on its reluctance to refer to

the use of international law to clarify the application of Australia’s municipal law. In Dietrich

the relevance of international law was Art 14(3)(d) of the ICCPR being that those charged

with a criminal offence have the right to ‘legal assistance’. The Chief Justice and McHugh J

referred to the use of international law in English courts and the presumption that the

legislature intends to create law in accordance with its international obligations. 42 This

approach, however, would only be applicable where ambiguity arises in the statute43 or an

influence on Australia’s common law.44

37 Brian Fitzgerald, ‘International Human Rights and the High Court of Australia’ (1994) 1 James Cook

University Law Review 1, 80.

38 (1985) 159 CLR 70.

39 Gerhardy v Brown (1985) 159 CLR 70, 99.

40 (1992) 177 CLR 292

41 Dietrich v The Queen (1992) 177 CLR 292, 301 (Mason Cl and McHugh J), 330 (Deane J), 361 (Toohey J),

365 (Gaudron J).

42 Dietrich v The Queen (1992) 177 CLR 292, 306; also discussed in Brian Fitzgerald, above n 37, 84.

43 Dietrich v The Queen (1992) 177 CLR 292, 306; also discussed in Brian Fitzgerald, ‘above n 37, 85.

44 Dietrich v The Queen (1992) 177 CLR 292, 321 (Brennan J), 337 (Deane J), 360-361 (Toohey J), 372

(Gaudron J).

In the area of migration law, the High Court has made comment that while application should

be given precedence to the construction of a legislative instrument, when there is conflict

with international law, any ambiguity gives rise to an interpretation in favour of harmonising

Australia’s international obligations with the statutory construction.45

Further, the High Court has held 46 that there is a legitimate expectation placed on

administrative decision makers to make decisions in accordance with Australia’s international

treaty obligations.47 However, this expectation arises as an extension of the common law

expectation of procedural fairness.48 The author notes that the common law expectation of

procedural fairness can be removed by the legislature with unambiguous drafting. 49

Subsequently, the common law duty to act fairly would not apply to s198AB of the Migration

Act 1958 (Cth) analysed in this paper.

Nevertheless, there is important obiter dicta of Mason CJ and Deane J50 in Minister of State

for Immigration and Ethnic Affairs v Teoh, where Their Honours explained the principle of

implying the Legislature’s intention to conform to international law where ambiguity arises:

It is accepted that a statute is to be interpreted and applied, as far as its language

permits, so that it is in conformity and not in conflict with the established rules of

international law. The form in which this principle has been expressed might be

thought to lend support to the view that the proposition enunciated in the preceding

45 Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1, 37-28,

74 (McHugh J) although a statute would not be invalid if it is contrary to Australia’s international obligations.

46 In Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

47 Ibid, 291 (Mason CJ and Deane J).

48 Ibid, 291 (Mason CJ and Deane J).

49 See Kioa v West (1985) 159 CLR 550, 584; see also Re Minister for Immigration and Multicultural Affairs;

Ex parte Miah (2001) 206 CLR 57; Minister for Immigration and Multicultural and Indigenous Affairs; Ex

parte Lam (2003) 214 CLR 1.

50 With Gaudron J concurring.

paragraph should be stated so as to require courts to favour construction, as far as

the language of the legislation permits, that is in conformity and not in conflict with

Australia’s international obligations. That is indeed how we would regard the

proposition as stated in the preceding paragraph. In this context, there are strong

reasons for rejecting a narrow conception of ambiguity. If the language of the

legislation is susceptible of a construction which is consistent with the terms of the

international instrument and the obligations which it imposes on Australia, then

that construction should prevail. So expressed, the principle is no more than a canon

of construction and does not import the terms of the treaty or convention into our

municipal law as a source of individual rights and obligations.(Emphasis added).

Importantly, Gummow and Hayne JJ 51 accepted the principle, phrasing it in a negative

construct so as it would apply as a cannon of construction ‘as far as [the statute’s] language

permits so that it is not in conflict with the established rules of international law.’ 52

Consequently, the author contends that, as a principle of statutory interpretation, Australia’s

international obligations are to be directly implied in the statutory construction in the absence

of an unambiguous denial that the international law would apply. This is further supported by

the fact that s15AB of the Acts Interpretation Act 1901 (Cth) does not require ambiguity.53

Factually relevant, is the recent decision of the High Court in Plaintiff M70/2011 and

Plaintiff M106/2011 v Minister for Immigration and Citizenship (The Malaysian Declaration

Case).54 In July 2011 the governments of Malaysia and Australia entered into a diplomatic

51 In Kartinyeri v Commonwealth (1998) 152 ALR 540.

52 Ibid, 599.

53 This is also discussed in Glen Cranwell, ‘Treaties and Australian Law – Administrative Discretions, Statutes

and the Common Law’ (2001) 1 Queensland University of Technology Law and Justice Journal 49, 73.

54 (2011) 244 CLR 144.

arrangement for the transfer of asylum seekers from Australia to Malaysia in exchange for

formally recognised refugees from Malaysia. 55 Two Afghani citizens (M70 and M106)

arrived in Australia at Christmas Island and were detained. A delegate to the Minister

subsequently determined that M70 was liable to be removed from Australia and deported to

Malaysia in accordance with the diplomatic arrangement and subsequent Ministerial decision

to designate Malaysia under s198A(3), as it then was.56

The application to the High Court sought a declaration that the designation pursuant to

s198A(3) was invalid and subsequently the delegate’s determination of M70 to be transferred

was also affected by an absence of jurisdiction. The application was filed under ss75(iii) and

(v) of the Constitution.57

The Plaintiff’s submissions in favour of the declaration were that the Minister’s decision was

affected by jurisdictional error as he failed to ask himself the correct question while

exercising his power under s198A(3).58 Section 198A(3) provided:

(3) 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

55 For a full analysis of the events surrounding the circumstance, see Tamara Wood, ‘III Australia Asylum

Policy all at Sea: An analysis of Plaintiff M70/2011 v Minister for Immigration and Citizenship and the

Australia-Malaysia Arrangement’ (2012) 61 International and Comparative Law Quarterly 274, 274-282.

56 Malaysian Declaration Case (2011) 244 CLR 144, 146.

57 Ibid, 148.

(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; and

(b) in writing, revoke a declaration made under paragraph (a).59

The Chief Justice discussed the drafting history of s198A(3) and the intentions of the scheme

it was introduced with insofar that it was submitted the derived intention of the section

purported to be:

…the [Migration Act 1958] provides power to respond to Australia’s international

obligations by granting a protection visa in an appropriate case and by not returning

that person, directly or indirectly, to a country where he or she has a well-founded

fear of persecution for a Convention reason.60

Chief Justice French agreed.61 His Honour then turned his mind to the Minister’s exercise of

discretionary power to designate an offshore processing country. Minister for Immigration

and Multicultural Affairs v Eshetu 62 was cited with approval that ‘[w]here a power is

expressly conditioned upon the formation of a state of mind by the decision-maker, be it an

58 Ibid, 162 (French CJ).

59 Ibid, 221 (Kiefel J).

60 Ibid, 175.

61 Ibid, 178.

62 (1999) 197 CLR 611.

opinion, belief … the existence of the state of mind itself will constitute a jurisdictional

fact.’63

The relevance of the jurisdictional fact, for French CJ, was whether the Minister had to have

the criteria of s198A(3) borne in mind to be a true representation of the facts of the

arrangement between Malaysia and Australia. His Honour held that it was.64 Moreover, after

briefly asserting that the statutory construction of s198A(3) sufficiently incorporated into

municipal law Australia’s non-refoulement obligations;65 His Honour concluded that the use

of ‘provide’ and ‘meet’ required consideration of the practical purpose the arrangement was

to be put. 66 Put simply, the statutory construction of the Minister’s power required the

Minister to also consider how Malaysia was to implement the assurances given.

However, in Their Honour’s joint decision, Gummow, Hayne, Crennan and Bell JJ held that

the construction of s198A(3)(a) did not require the Minister to be satisfied of the factual

existence of the criteria, merely that the Minister had formed an opinion about those matters

as a condition for the exercise of his discretion.67 This had the effect that the Minister need

only ‘declare’ that the country does indeed have the relevant characteristics and not that the

Minister thinks, believes or is satisfied that the country does have the characteristics.68

Nevertheless, Their Honours agreed that the language used in s198A(3) sufficiently

transformed Australia’s international obligations under Art 33 of the Refugee Convention into

63 Malaysian Declaration Case (2011) 244 CLR 144, 179-180 citing Minister for Immigration and Multicultural

Affairs v Eshetu (1999) 197 CLR 611, 651-654 (Gummow J).

64 Malaysian Declaration Case (2011) 244 CLR 144, 181-183.

65 Ibid, 182-183.

66 Ibid, 183.

67 Ibid, 193 (Gummow Hayne, Crennan and Bell JJ).

68 Ibid, 194 (Gummow, Hayne, Crennan and Bell JJ).

municipal law.69 Specifically, the criteria only permitted the Minister to designate a signatory

country as it is the only interpretation of the provision which accords with Australia’s

obligations.70

Her Honour Keifel J, however, adopted an approach which sought to harmonise the

rationalisation of French CJ and the other members of the majority. Her Honour held that the

objective of the Minister’s power was to preserve Australia’s international obligation of non-

refoulement insofar as it is necessary to ensure the designated country can indeed afford the

protections provided in s198A(3)(a). 71 Her Honour further held that the Minister may

scrutinise the practice of the designated country’s laws as part of the power given to him.

Moreover, while this scrutiny is open to the Minister, the drafting provides that it is essential

that the designated country be bound by law to the Refugee Convention.72

In His Honour’s dissenting reasons, Haydon J held that the Migration Act 1958 (Cth) does

not incorporate the totality of the Refugees Convention into domestic law and it is therefore

necessary to assess the extent of the incorporation of the Refugee Convention as a matter of

construction of the Migration Act 1958 (Cth).73 The question then becomes whether the

statutory construction of s198AB sufficiently incorporates the principal of non-refoulement

under Australia’s international obligations in accordance with the Refugees Convention and

the ICCPR. His Honour held that s198A(3) did not sufficiently incorporate into Australian

69 Ibid, 196 (Gummow, Hayne, Crennan, Bell JJ).

70 Ibid, 196-197 (Gummow, Hayne, Crennan, Bell JJ).

71 Ibid, 233.

72 Ibid, 234.

73 Malaysian Declaration Case, 207 [154] (Haydon J) citing Minister for Immigration and Multicultural Affairs

v Khawar (2002) 210 CLR 1, 16 [45]; NAGV and NAGW of 2002 v Minister for Immigration and Multicultural

and Indigenous Affairs (2005) 222 CLR 161, 172 [26]; Minister for Immigration and Multicultural and

Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1, 14 [33]; NBGM v Minister for Immigration and

Multicultural Affairs (2006) 231 CLR 52, 69 [55].

municipal law its international obligation of non-refoulement so as to compel the High Court

to consider the Minister’s judgement in his declaration.74

Most importantly, however, Haydon J was of the opinion that the criteria of s198A(3)

suggested the ‘practical access, practical protections, and a meeting of standards in

practice.’75 While His Honour declined to comment on whether the Minister had it borne in

mind of these practical steps,76 he added:

[e]ven less does the language suggest that Malaysian adherence to the Refugees

Convention has any materiality – for while there is no room for a presumption that

the Malaysian authorities will comply with their domestic law, no basis has been

demonstrated for giving room for any presumption that they would have complied

with the Refugees Convention unless it is either operated directly in Malaysian law or

had been legislatively incorporated into Malaysian law.

By invariably declaring the Plaintiff’s argument, and the reasoning of the majority, that

s198A(3) implies the designated offshore processing country must be a signatory to the

Refugee Convention moot, Haydon J’s reasoning suggests an implied requirement for the

Minister to look beyond the diplomatic assurances. Nevertheless, the majority held that the

provision sufficiently incorporated into municipal law Australia’s obligations under the

Refugee Convention. The extent of which, however, is still uncertain in light of the Minister’s

power to make his declaration.

The author contends that while the Malaysian Declaration Case is not materially relevant to

s198AB of the Migration Act 1958 (Cth), and thus can be distinguished, the reasoning of the

74 Malaysian Declaration Case (2011) 244 CLR 144, 209.

75 Ibid, 209.

76 Ibid, 209 His Honour was of the opinion that it was not to the judiciary to look into the Minister’s reasoning

for his declaration as s198A(3) did not sufficiently imply that the criteria amounted to jurisdictional facts.

Justices provide a view into how the High Court may address the question of non-refoulement

in the circumstance of PNG. The issues which counsel may face in such a litigation are

discussed in the section below.

IV A JUDICIAL REVIEW OF THE DESIGNATION OF PNG AS AN OFFSHORE PROCESSING

COUNTRY

For the purposes of the author’s argument, it is necessary to analyse the intention of the

drafting of s198AB in light of judicial developments.

As a matter of practicality, the author will first look at the extent to which ‘the rules of

natural justice’77 do not apply, in the event of judicial review. Firstly, the Minister’s power to

make a decision pursuant to s198AB is affected by s474(7) in that a decision made in

accordance with s198AB is a privative clause decision. As such, the principles developed in

Plaintiff S157/2002 v Commonwealth78 will apply. While acknowledging that it is trite to say

a decision ‘tainted by jurisdictional error is no decision at all’79 the relevance of s198AB(7)

would apply to the circumstance which would lead an individual to make an application for

judicial review pursuant to s75(v) of the Constitution. Simply, an applicant may be barred

from raising jurisdictional error if the submission relied on was establishing a lack of natural

justice in the decision. However, s198AB(7) does not appear to extinguish other breeds of

jurisdictional error which are distinct from a narrow interpretation of natural justice.80

77 Migration Act 1958 (Cth), s198AB(7).

78 (2003) 211 CLR 476, 494 (Gleeson CJ), 505 (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).

79 W B Lane and Simon Young, Administrative Law in Australia (Lawbook Co, 2007), 199.

80 For example, a failure to comply with procedures required by law: Project Blue Sky Inc v Australian

Broadcasting Authority (1998) 194 CLR 335, 389 (McHugh, Gummow, Kirby and Hayne JJ); SAAP v Minister

for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009; Minister for Immigration and

Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; also see Craig v South Australia (1995) 184

CLR 163, for an incomplete list of possible grounds for establishing jurisdictional error in an administrative

decision.

While a comprehensive discussion of the procedural difficulties in making such an

application to the High Court would be beneficial, it is, with much regret, outside of the

scope of this paper.

Practicality aside, the author contends that there is argument to be made in that the Minister

must be satisfied that the assurances can be practically put. As discussed above, this argument

is not outside the reasoning of the bench in the Malaysian Declaration Case and nor is it

outside the scope of general principles of administrative law. It is relevant to note here that

the Minister did, in fact, consider 81 whether PNG would act in accordance with the

assurances made in the Memorandum of Understanding.82 It is then open to the High Court to

consider whether the drafting of s198AB invites the Minister to turn his mind to the practical

application of the assurances. In this regard, it is noted that the assurances provided pursuant

to s198AB(3)(a) are jurisdictional facts due to the Minister having to ‘think’ it be in the

national interest. Moreover, the Minister is expressly invited to consider anything else which

he deems to be in the national interest.83 The effect of this being that, just in the Malaysia

Declaration Case, it is within the Minister’s jurisdiction to look beyond the mere words of

the assurances to make a determination. It is contended that this determination of national

interest includes Australia’s non-refoulement obligations. Indeed, the authority discussed

above invites the court to consider Australia’s international obligations in its determination of

the operation of s198AB. Therefore, it is argued that there is a legitimate expectation that the

Minister would consider PNG ability to carry out the assurances.

81 Minister for Immigration and Citizenship, above n 4, [19].

82 Memorandum of Understanding, above n 3.

83 Migration Act 1958 (Cth), s198AB(3)(b).

This expectation would not materially change when considering the use of ‘not legally

binding’.84 It is clear from the drafting that it is the assurances which Parliament intends do

not need to be binding in law. However, s198AB(4) does not refer to any other matter the

Minister is invited to consider. It stands to reason as a matter of expressio unius est exclusio

alterius85 any other matters considered by the Minister may relevantly have to be legally

binding in order for Australia to comply with its non-refoulement obligations.

From this reasoning, it is submitted that the Minister’s consideration of whether the

arrangement complies with Australia’s international obligations86 and the relevance of PNG’s

ability to carry out the assurances87 provide an additional consideration for which legality

may apply. If the court deems that there is a real risk of refoulement of the plaintiff due to the

arrangement, PNG’s ability to carry out the assurances made immediately becomes relevant.

The author, therefore, contends that the court would be open to decide whether the extrinsic

evidence, used by the Minister at the time of his designation, which indicates the extent to

which PNG is capable of operating the assurances provided, is enough to prove the Minister

was in jurisdictional error. Put simply, the Minister may well have been in error as he

asserted the jurisdictional fact that PNG was capable of carrying out the assurances, without

considering the realities of the process.88

Finally, the author contends that it was open to the Minister to consider the legal position of

PNG, however, the absence of the consideration would not amount to a jurisdictional error.

What did lead the Minister to a jurisdictional error was that he did consider the practical

84 Migration Act 1958 (Cth), s198AB(4).

85 An expression used and derived from Acts Interpretation Act 1901 (Cth), 15AA.

86 Minister for Immigration and Citizenship, above n 4, [33]-[35].

87 Ibid, [19].

considerations of PNG carrying out the assurances in absence of considering the legal

position of PNG.89 This becomes a simple issue of the Minister wishing to have his cake and

still eat it. As Keifel J reasoned in the Malaysian Declaration Case, the Minster was capable

of electing to consider the existence of fact. 90 However, absent an evaluation of that

consideration would amount to an absence in the jurisdictional fact set out by the Minister

himself. By asserting the existence of a fact and then denying the consideration of whether

that fact does indeed exist in practicality would amount to the Minister failing to ask himself

the correct question; whether it is indeed in the national interest to designate PNG as an

offshore processing country.

V CONCLUDING REMARKS

In conclusion, while this paper may represent a purely academic exercise, it has been shown

that there is a case to be put that the Minister did err in jurisdiction while exercising his

discretionary power. It is further noted there that while the international law provides that the

only method in protecting the accrued rights under the Refugee Convention is to share the

formal processing with another member State, this was not a consideration made by the

Minister and, therefore, not a jurisdictional fact he was compelled to consider. However, the

Minister did consider whether PNG was capable of undertaking the assurances provided and

as such, the Minister was compelled to look at the practical implications of this; meaning that

the Minister compelled himself to consider PNG’s municipal law and in failing to do so, fell

into jurisdictional error.

88 Ibid, [37] where the Minister chose not to have regard to the municipal and international laws of PNG despite

expressing the opinion that PNG was capable of carrying out the assurances in [19].

89 Minister for Immigration and Citizenship, above n 4, [19].

90 Malaysian Declaration Case (2011) 244 CLR 144, 234.

VI REFERENCES

A Articles/Books/Reports

Angus Francis, ‘Bringing Protection Home: Healing the Schism Between International Obligations

and National Safeguards Created by Extraterritorial Processing’ (2008) 20 International Journal of

Refugee Law 253

Angus Francis, The Role of Legislative, Executive, and Judicial Mechanisms in Ensuring a Fair and

Effective Asylum Process, (PhD Thesis, The Australian National University, 2008)

Brian Fitzgerald, ‘International Human Rights and the High Court of Australia’ (1994) 1 James Cook

University Law Review 1

Geoff Gilbert, ‘Is Europe Living Up to Its Obligations to Refugees?’ (2004) 5 European Journal of

International Law 963, 965

Glen Cranwell, ‘Treaties and Australian Law – Administrative Discretions, Statutes and the Common

Law’ (2001) 1 Queensland University of Technology Law and Justice Journal 49

Grahl-Madsen, Commentary on the Refugee Convention 1951, Articles 2-11, 13-37, Published by the

Division of International Protection of the United Nations High Commissioner for Refugees 1997,

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Guy Goodwin-Gill, ‘Non-Refoulement and the New Asylum Seekers’ (1986) 26 Virginia Journal of

International Law 897

Guy S Goodwin-Gill and Jane McAdam, The Refugee in International Law, (Oxford University Press,

3rd ed, 2007)

Ian Brownlie and Guy Goodwin-Gill (ed), Brownlie’s Documents on Human Rights (Oxford

University Press, 2010)

J Hathaway and J Dent, Refugee Rights: Report on a Comparative Survey (York Lanes Press, 1995)

Louis Henkin, ‘Notes From the President’ (1993) 5 American Society of International Law Newsletter

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Robert Newmark, ‘Non-Refoulement Run Afoul: The Questionable Legality of Extraterritorial

Repatriation Programs (1993) 71 Washington University Law Review 833

Robinson, Convention relating to the Status of Refugees, Its History, Contents and Interpretation, A

Commentary (Institute of Jewish Affairs, 1953)

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for Immigration and Citizenship and the Australia-Malaysia Arrangement’ (2012) 61 International

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W B Lane and Simon Young, Administrative Law in Australia (Lawbook Co, 2007)

B Cases

Applicant M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003]

FCAFC 131

Attorney General v Zaouri, [2004] NZCA 20

Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs (1992) 176 CLR 1

Craig v South Australia (1995) 184 CLR 163

Dietrich v The Queen (1992) 177 CLR 292

Gerhardy v Brown (1985) 159 CLR 70

Kartinyeri v Commonwealth (1998) 152 ALR 540

Kioa v West (1985) 159 CLR 550

M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR

1

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992

Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273

NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

(2005) 222 CLR 161

NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52

Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for

Immigration and Citizenship (2011)244 CLR 144

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335

R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2003] EWCA Civ 666

R (on the application of Ullah) v Special Adjudicator [2004] All ER 153

R v Secretary of State for the Home Department, ex parte Sivakumaran [1998] 1 All ER 193

R v Secretary of State for the Home Department; Ex parte Thangarasa; R v Secretary for the Home

Department; Ex parte Yogathas [2002] UKHL 36

Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009

Sale v Haitian Centres Council 509 US 155

C Legislation

Acts Interpretation Act 1901 (Cth)

Australian Constitution

Minister for Immigration and Citizenship, Instrument of Designation of the Independent State of

Papua ew Guinea as a Regional Processing Country under the Subsection 198AB(1) of the Migration

Act 1958, F2012L02003, 9 October 2012.

D Treaties

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,

opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)

Convention Relating to the International Status of Refugees; Provisional Arrangement Concerning

the Status of Refugees Coming from Germany, 171 LNTS 75 (entered into force 4 July 1936)

Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137

(entered into force 22 Apr. 1954)

Declaration on Territorial Asylum, GA res 2312, 22 UN GAOR Supp 16, 81, UN Doc A/5217

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999

UNTS 172 (entered into force 23 March 1976)

Memorandum of Understanding Between the Government of the Independent State of Papua New

Guinea and the Government of Australia, Relating to the Transfer and to the Assessment of Persons in

Papua New Guinea, and Related Issues, Australia – Papua New Guinea, Signed 8 September 2012

The Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS

267 (entered into force 4 October 1967)

Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess, 183rd Plen mtg, UN

Doc A/810 (10 December 1948)

E Other

Minister for Immigration and Citizenship, Statement of reasons for thinking that it is in the national

interest to designate the Independent State of Papua New Guinea to be a regional processing country,

9 October 2012

Conclusion on Non-refoulement, GA Res 52/103, UNGAOR 52nd sess, UN Doc A/RES/52/103 (12

December 1997)

Executive Committee Conclusion No 6 (1977), Conclusion on Non-refoulement; Executive

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Asylum

Report of the United Nations High Commissioner for Refugees, UN Doc E/1985/62 (1985)

Report on the Twenty-eighth Session of the Executive Committee of the High Commission’s

Programme, UN Doc A/AC.96/549 (1977)

UN High Commissioner for Refugees (UNHCR), UNHCR Note on Diplomatic Assurances and

International Refugee Protection, August 2006, available at:

http://www.refworld.org/docid/44dc81164.html (accessed 1 November 2013).

Committee Against Torture, Agiza v. Sweden, U.N. Doc. CAT/C/34/D/233/2003, 20 May 2005

Haitian Centre for Human Rights v United Nations, Case 10. 675, Report No 51/96, Inter-am CHR

Doc OEA/Ser.L/V/II 95 Doc 7 rev (13 March 1997)

Human Rights Committee, Concluding Observations of the Human Rights Committee: United States

of America, UN Doc CCPR/C/79/Add.50 (6 April 1995), para 284; Brian Opeskin, Richard

Perruchoud, Jillyanne Redpath-cross (ed), Foundations of International Migration Law (Cambridge

University Press, 2012)

Ad Hoc Committee on Statelessness and Related Problems, First Session, 22nd meeting, UN Doc

E/AC.32/SR.22 (14 February 1950)

‘Fact Check Q&A: how hard would it be to defeat the PNG asylum-seeker deal through the courts?’

The Conversation (24 July 2013) available at http://theconversation.com/factcheck-qanda-how-hard-

would-it-be-to-defeat-the-png-asylum-seeker-deal-through-the-courts-16306

Rimmer, S, ‘The Top 10 Mistakes in the PNG Solution’ Australian Broadcasting Authority (24 July

2013) available at http://www.abc.net.au/news/2013-07-24/harris-rimmer-the-top-10-mistakes-in-

rudds-png-solution/4838586 (accessed 17 October 2013)

Executive Order no 12, 807, 3 CFR 303 (1993)

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torture, or other cruel, inhuman or degrading treatment or punishment, UN Doc HRI/GEN/1/Rev.7

ARJ v Australia, Communication No 692/1996, 11 August 1997, UN Doc CCPR/C/60/D/692/1996

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Obligation on States Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add.13