On the second day of the High Court hearing on the Malaysia Solution, the plaintiffs concluded their case on the illegality of the scheme; and the Commonwealth presented the case for its validity. Read New Matilda’s report on the first day of proceedings here.
Richard Niall, acting for M160, a 16-year-old unaccompanied minor, argued that Chris Bowen in his capacity as Immigration Minister breached his duty as guardian of unaccompanied minors by allowing their removal to Malaysia.
Niall turned to section 6A of the Immigration (Guardianship of Children) Act which sets out the duty for the guardian to act in the best interests of the child.
Section 6 contains four elements: the duty of exclusive guardianship, continuing rather than temporary guardianship, the obligation to protect the welfare of the child, and a duty which is public in nature rather than private. Continuing guardianship ceases only when the child turns 18 or is permanently removed from Australia. To remove the child under s198A of the Migration Act — which is what the Malaysia plan purports to do — would be effectively to terminate this guardianship without replacing it or putting in place any means to secure the child’s welfare interests.
Niall went on to explore the relationship between these duties with those imposed under the Migration Act. He argued that it is impossible for the Minister to legally act inconsistently with his responsibilities as guardian, while carrying out the processes set out in the Migration Act for processing, determining and detaining asylum seekers. Niall read out sections of the plaintiff’s pre-assessment interview, undertaken as per the requirements in the Migration Act. The plaintiff expressed his fears that the Malaysian government was beating and torturing refugees and that he was scared to be sent there.
He drew the Court’s attention to the requirement of all cases involving minors having "a best interests of the child determination", a reference to the UN Convention on the Rights of the Child. Given the circumstances of M160 as a Shia Muslim (the Malaysian Government has listed Shia as a "deviant" sect of Islam) and the potential punishment he would face upon return to Malaysia for past illegal entry; he argued that it would be contrary to the best interests of the child for him to be sent to Malaysia.
He concluded that sending unaccompanied non-citizen children to Malaysia is not in their best interest and that the Minister has an active duty to prevent harm being done to the children under his guardianship. Bowen is thus in breach of this obligation by failing to prevent the removal of children to Malaysia.
It was then the Commonwealth’s turn to present arguments.
Stephen Gageler for the Commonwealth argued that the only obligation Australia owes to individuals it sends from Australia to a third country is that of non-refoulement. He argued that there is no breach of this principle if an individual (or in this case, a group of 800 individuals) is sent to a country where it has been assessed that the individual would not be subject to any of the risks laid out in the Refugee Convention. The Commonwealth argues that Malaysia falls into that category.
Gageler moved to section 198 A of the Migration Act to examine the mechanisms by which Australia must fulfill its non-refoulement obligations. Under subsection (3)(a)(ii) and (iii) the Minister must make a Declaration in writing that the country to which the asylum seekers are to be sent provides adequate human rights standards and protection during the process of establishing refugee status and once that status has been determined. He argued that sending asylum seekers to Malaysia was within the Minister’s conferred exercise of power.
The heart of the dispute between the plaintiffs and defendants arose at Gageler’s third point — the construction of section 198(3), namely the meanings of the words "protection" and "provides protection" and "human rights standards".
The Commonwealth maintains that protection only refers to the principle of non-refoulement and no additional standards. Further, Gageler argued that the reference to "human rights standards" lacks legal meaning and rather than imposing a set of standards that could be determined judicially, it simply refers to what can be practicably determined in fact. He went on to say that the power to exercise these protections has "no express or implied preconditions to its exercise".
At this point, in response to the Judges’ questions as to whether the Minister could have asked himself the wrong questions, as the plaintiffs argued, in relation to the issue of protection, he responded that the Minister acted on the basis that neither an international nor domestic legal basis was necessary when determining whether Malaysia was a country that could provide asylum seekers with protection. Rather, he simply "addressed himself to Malaysia as it is now".
Gageler’s fourth argument pertained to subsection 1 of 198 A, namely that an "officer may take an offshore entry person from Australia to a country in respect of which a declaration is in force under subsection (3)". He conceded that this is an exercise of power that is qualified by the obligation to assess the circumstances of individuals who may face persecution in the country they are to be sent to. He argued, however, that this is what occurred through the pre-removal process and the concerns raised by the plaintiffs — persecution on the grounds of religion and bodily assault due to documented cases of caning — do "not rise to the level of one of those mandatory relevant considerations" under the Refugee Convention.
Finally, Gageler spent some time examining legal precedents that suggest the right way to construct Article 33 under the Convention (which contains the prohibition on refoulement). He refered to the Federal Court decision of Patto in 2000 in which Justice French ruled that it was "not necessary that the third country be a party to the Convention if it will otherwise afford effective protection to the person". Gageler thus argued that while Malaysia may not be party to the relevant pieces of international legislation to which Australia is party, if it could legally secure protection for the rights of asylum seekers, Australia would not necessarily be in breach of its international duty.
Debbie Mortimer, acting for the plaintiffs, had a number of points to make in response to the Commonwealth’s case.
Most significantly she repudiated the Commonwealth’s arguments about the Minister’s right to determine the "safety" of Malaysia based on the "practical reality" of the standards of human rights there. This, she said, is a misapplication of power: "Australia does not know and decides not to inquire about whether another State has an existing protection obligation to these people. Instead, it seeks to discharge the Convention obligations as we have described them by sending them to a country that it declares will do so in the manner that is legally required." That is, it is not Australia’s duty to make an independent decision on whether another country who is not party to the Convention fulfills the requirements it lays out for the protection of asylum seekers.
The final decision will be handed down by the Court on 31 August 2011.