Malaysia Solution Under Challenge


Yesterday, the High Court of Australia was packed with members of the public.

After an injunction was granted last week preventing the Gillard Government from taking the first group of asylum seekers from Christmas Island to Malaysia, the full Court gathered yesterday — and will sit again today — to determine whether the Government’s arrangement with Malaysia contravenes s 198A of the Migration Act 1958 (Cth).

The defendant in the case, the Commonwealth, is expected today to advance arguments based on the practical realities of processing asylum seekers.

The plaintiffs are two young men who arrived in Australia in August seeking asylum from the persecution they claim to have faced in Afghanistan: Mr Shah (M70) and M160.

Shah is a 24-year-old man. The second plaintiff is a 16-year-old unaccompanied minor, also to be taken to Malaysia. There are additional legal concerns for M160 because of his age and the Immigration Minister, Chris Bowen’s, legal status as his guardian. As such, Bowen is obligated to act in his best interests, which M160 argues he is not.

Barrister Debbie Mortimer represented both men.

The plaintiffs looked to the inherent purpose of the Migration Act, and specifically s 198A.

Their construction of the Migration Act turned to a great deal of extrinsic evidence. Mortimer looked at the the ministerial speeches that heralded the amendments to the Act made in 2001 and determined that the purpose of s 198 was to facilitate Australia’s successful implementation of our international human rights obligations when asylum seekers are being "taken" to another country.

She argued that the purpose of the section is to allow Australia to discharge its obligations to asylum seekers under the 1951 UN Refugee Convention not to send asylum seekers back to their country, to or any other country, where they would face well founded fears for their safety. This is known as the principle of non-refoulement.

Mortimer worked to establish a set of criteria that Malaysia must fulfil in order for it to be valid for Australia to transfer asylum seekers there.

Secondly, Mortimer looked at the discretionary power held by Chris Bowen and the legal implications of his Declaration of the Malaysia transfer.

Bowen is required to declare in writing that Malaysia provides effective procedures for asylum seeker processing and human rights protection. Mortimer questioned whether or not Malaysia met the minimum standards required of Australia as mandated by the Refugee Convention, arguing that there is a set of criteria with regard to processing and human rights that Malaysia needs to meet in order for Bowen’s declaration to be valid.

If this is the case and there is a set of objectively determined criteria, than the declaration could be struck down as invalid.

Finally, Mortimer turned to the question of jurisdictional fact. She argued that the minimum standard required of Australia is to look to all asylum seekers and refugees being processed in Malaysia and their treatment. That is, it is not enough for Bowen’s declaration to guarantee the safety and human rights of those 800 asylum seekers Australia is sending to Malaysia, but rather there is a minimum standard of rights protection required for all asylum seekers in the country. Additionally, she pointed out that the declaration is expressed in suggestive language and lacks enforcement mechanisms — and thus may not be legally binding at all.

She put to the Court that before the declaration was made, the Minister should first have ascertained that the minimum standard of human rights existed within Malaysia. The plaintiffs argue these minimum rights will not be guaranteed under the current Malaysia arrangement. Why? Sending asylum seekers to Malaysia puts their liberty, freedom of movement and freedom from assault in jeopardy. The plaintiffs pointed to evidence of widespread caning, unhygienic living conditions, frequent police persecution and interference and laws prohibiting asylum seekers working or attending school.

Mortimer also identified basic right infringements for Mr Shah in particular. As a Shia Muslim, Mortimer contends he would face real persecution in a country where that strain of Islam is repressed.

The court was adjourned at 4pm and issues around M70 and the Minister’s responsibility to him as a minor were not discussed.

Today the court hearing continues with the Commonwealth preparing to put its case, which will be based largely on the practicalities of administering and implementing an effective scheme to process off-shore arrivals.

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