While it is one of the most litigated areas in Australian law (10% of all High Court cases concern immigration matters), wins by asylum seekers in the High Court are an exception in the migration law cases.

Figures obtained by Crikey show since July 2008 there have been 650 applications for special leave to the High Court to review decisions relating to migration law. About 60% of those relate to failed visa applications.  Of those 650, only 17 were accepted to be even heard by the High Court. Of those 17, a bit over half related to unsuccessful visa applications and only a handful of those have gone in the asylum seekers’ favour.  That’s 650 wins to the government and less than five losses on immigration matters.

Courts do take into consideration the wider implications of their decisions, but this was a case decided on a technical point of executive decision making and statutory interpretation.

At issue in the lengthy High Court judgment of Plaintiff’s m70 and m106, and Minister Immigration and Citizenship was the interpretation and application of s198A of the 1958 Migration Act. Essentially, the Gillard government tried to broaden John Howard’s Pacific Solution legislation, which allowed for off-shore processing in Nauru — to validate the Malaysia swap deal.

While the Rudd government ended Temporary Protection Visa’s in 2008 and shut down detention centres on Manus Island and on Nauru, it left section s198A of Migration Act (the Pacific Solution legislation) unamended.

The legislation allowed for off-shore processing and the excision of certain territories from the migration zone.

It was created on September 18, 2001, made law on the 27th and by early October, the Minister for Immigration made a successful application under 198A(3) to have passengers on the Tampa boat sent to Nauru.  The government relied on the same section of the Pacific Solution legislation to send the two Afghani plaintiff asylum seekers to Malaysia for processing.

It was in satisfying s198A(3) of the Act that the government’s case seriously faltered. To explain — under the subsection 2 of s198A there is a duty for the government for remove an unlawful non-citizen, subsection 1 creates the power for removal and subsection 3 creates obligations on the government to ensure the removal is done to a safe third country.

Subsection 3 must be satisfied in order to invoke the power in subsection 1.  There are three threshold elements in subsection 3 — that the third country has (1) procedures in place for the determination of asylum seeker claims, (2) provides protection for asylum seekers and (3) provides protection for refugees.

The most significant risk this legislation seeks to address is the expulsion of an asylum seeker or refugee back to a country where they will face persecution.  The big legal question in the High Court matter was really the correct approach for the minister to make a judgment about the protections given to asylum seekers in Malaysia under 198(3).  It was a question of the decision making process, not a question of whether Malaysia actually protects asylum seekers.

The Harvard educated Solicitor-General argued for a legal test which would have allowed the flimsy basis necessary for the minister’s decision to be valid.  He argued it was merely an evaluation for the minister to form in “good faith”.  Beyond this, he said no obligations for the minister to show the basis of the decision was based on actual truths — legal, practical or otherwise.

“[i]t is the existence of the minister’s declaration itself, not the truth of the content of that declaration, that engages the operation of s198A(1)”, counsel for the government told the court.

So accordingly, the government’s submission was that something becomes true and valid simply because the minister has declared it so.  The plaintiffs, on the other hand, submitted the ministerial decision must be made on objective facts.  If those facts did not exist, then it followed the power in s198(1) could not be invoked.  The court upheld the plaintiff’s submission — things are not true just because the minister says so. 

While the government has not been specific, perhaps this is what it means when it says the High Court created a new legal test. This is not a new legal test that departs from previous law; it is a question of interpretation that has not been previously addressed by the High Court. Even if it was a new test, the High Court is not bound by its own judgments, and it exists partially to develop, evolve and improve legal tests.

The government also argued, with stunning circularity, the very fact Malaysia wanted to partake in the deal was a sign they would protect asylum seekers. The court was told minister Bowen had “formed a clear belief from these discussions that the Malaysian government had made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers … It was also clear to me that the Malaysian government was enthusiastic about using … under the proposed arrangement as a kind of ‘pilot’ for their new approach to the treatment of asylum seekers generally”.

The government’s submission comes dangerously close to “it’s the vibe, your honour” line of argument. For the High Court, the cold hard fact that asylum seekers don’t exist in Malaysian domestic law, dampened the “warm vibes” approach to Bowen’s “intuitive truth” ministerial decision making.  Not only is Malaysia a non-signatory on the Refugee Convention as well as the international Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.

There are no provisions to process claims or protect rights of asylum seekers because under the Malaysian Immigration Act there is no such thing as asylum seekers or refugees, there are only illegal immigrants. Punishment for illegal immigrants in Malaysia includes jail, imprisonment and up to six lashings with a cane.

Only the conservative Justice Heydon (who in 2002 gave a speech to a Quadrant dinner on the evils of judicial activism) was swayed by the government’s argument. Justice Heydon thought all the minister needed to show was that he had good faith in his judgment and that the criteria in s198A(3) was taken into account, not necessarily satisfied.

The majority of the High Court held the Pacific Solution legislation must be interpreted in the context of Australia’s continuing commitment to its obligations under the refugee convention. Ironically, a government whose members have in the past described the Pacific Solution as inhumane relied on and failed using the same legislation because it could not guarantee basic human rights protections.

For Chief Justice French, there “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 … 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’.”