The Australian courts blocked a refugee swap deal with Malaysia, for which Tommy Thomas is thankful. The merits of the case, he notes, would never have been determined by our courts.
A. The Australian proceedings
The recent decision of the highest court in Australia, its High Court, which received tremendous worldwide publicity, substantially damaged Malaysia’s international standing, particularly in the way it treats refugees and asylum-seekers. Malaysia’s refusal to ratify the 1951 Geneva Convention on Refugees cost us dearly in the litigation. It is therefore critical that Malaysia immediately adopts the Refugee Convention so that it meets standards acceptable under public international law. Further, Malaysia must urgently enact laws to protect refugees and asylum-seekers, and give them proper status in our domestic law. This article considers the Australian decision, and how a similar case would have been treated by our Courts under our laws.
In Plaintiff M70/2011 and Plaintiff M106/2011 v. Minister for Immigration and the Commonwealth of Australia, the High Court of Austalia, by a 6-1 majority, declared that Malaysia could not qualify as a “specified country” within the meaning of Section 198A of the Migration Act, 1958 of Australia for the purposes of receiving refugees, and granted an injunction restraining the defendants from taking the plaintiffs to Malaysia. The plaintiffs are citizens of Afghanistan and arrived by boat at the Australian territory of Christmas Island on 4 August 2011. They had travelled through Pakistan, Dubai, Thailand, Malaysia and Indonesia. Both plaintiffs are Shia Muslims. Both claim to have a well-founded fear of persecution in Afghanistan on grounds that would, if established, make them “refugees” to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 (“the Refugees Convention”). Lacking visas, both are “unlawful non-citizens” and “offshore entry persons” within the meaning of the Migration Act. Both were detained upon arrival at Christmas Island.
Both plaintiffs are subject to a new administrative regime, established by the Australian Government, for the transfer to Malaysia of up to 800 asylum seekers irregularly arriving in Australia by sea after 25 July 2011. The regime was set up pursuant to an Arrangement between the Governments of Australia and Malaysia entered into on 25 July 2011 (“the Arrangement”). On 7 August 2011, an officer of the Department of Immigration determined that Plaintiff M70 was liable for removal from Australia, and should be taken to Malaysia under the Arrangement. In respect of Plaintiff M106, the only impediment to his removal was the establishment in Malaysia of relevant support services for unaccompanied minors (he being 16 years old). Neither plaintiff wished to go to Malaysia voluntarily.
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The critical provision in the Migration Act, 1958 is Section 198A, the material parts of which read:-
Migration Act, 1958
(1) 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);
(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
(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;.
At the same time as the arrangement was entered into between the two countries, that is, on 25 July 2011, a declaration of Malaysia as a “specified country” was made by the Minister of Immigration purportedly acting under Section 198A (3).
The plaintiffs commenced these proceedings on 7 August 2011. On 8 August 2011, a single judge of the High Court (Justice Hayne) made an interlocutory order restraining the Minister from removing the plaintiffs from Australia pending the disposal by the Full Court of their case. The case was heard by the full bench of the High Court on 17 August. Judgment was delivered on 31 August 2011. The grounds running to 96 pages are posted here.
Among the materials considered by the Minister before he declared that in his judgment Malaysia satisfied the four criteria under Section 193A(3) was an assessment provided by the Australian Department of Foreign Affairs and Trade (“DFAT”). The DFAT Assessment made the following nine salient points:
- Malaysia is not a party to the Refugee Convention and does not itself grant refugee status or asylum or have in place legal protections for persons seeking asylum.
- Malaysian authorities nevertheless “generally cooperate with the United Nations High Commissioner for Refugees (“UNHCR”)”
- There are, according to the UNHCR, “credible indications that forcible deportations of asylum seekers and refugees had ceased in mid-2009.”
- A number of “fundamental liberties” are contained in the Malaysian Federal Constitution, and the Malaysian Human Rights Commission is active in fulfilling its mandate with respect to those rights, including inquiries about complaints.
- Illegal immigrants in Malaysia are liable to imprisonment and/or a fine and caning of not more than six strokes.
- Access to health care is provided to refugees with cards issued by the UNHCR at a discounted rate available to foreigners. However, the costs are generally beyond the means of refugees.
- Lack of official status has impeded access by refugees to sustainable livelihoods or formal education.
- Credible allegations have been made regarding inadequate standards in immigration detention centres.
- Malaysia is not a party to the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights. It is a party to the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of Persons with Disabilities and the Convention on the Rights of the Child.
In these circumstances, it comes as a surprise that the Australian Minister took the position that the conditions enumerated in Section 198A (3) were satisfied. The High Court took a contrary view. A review of the majority judgments will indicate that the Court decided that Malaysia cannot be a “specified country” within the meaning of Section 198A of the Migration Act, 1958 for the following three principal reasons:
- Malaysia does not recognise the status of refugees under its domestic law. The Immigration Act, 1959 of Malaysia does not afford any protection to refugees and asylum-seekers;
- the Plaintiffs are not protected from prosecution in Malaysia for their prior illegal entry into and exit from Malaysia; and
- Malaysia is not a safe third country to provide protection, under the law, to refugees and asylum-seekers.
The concluding paragraphs of the judgment of Chief Justice French are instructive:
The criteria for a declaration set out in s 198A(3)(a) are not limited to those things necessary to characterise the declared country as a safe third country. They are statutory criteria, albeit informed by the core obligation of non-refoulement which is a key protection assumed by Australia under the Refugee Convention. Attention must be directed to the statutory language. 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.
An affirmative answer to the questions posed by the criteria in s 198A(3)(a), reached by reference only to the specified country’s laws and international obligations, is not the end of the necessary ministerial inquiry. Constitutional guarantees, protective domestic laws and international obligations are not always reflected in the practice of states. There are examples around the world of governments whose implementation of human rights standards fall short of the authoritative legal texts, be they constitutional or statutory, or embedded in treaties and conventions which, on the face of it, bind them. The existence of a relevant legal framework which on paper would answer the criteria in s 198A(3) cannot therefore always be taken as a sufficient condition for the making of a declaration. The Minister must ask himself the questions required by the criteria on the assumption that the terms “provide” and “meet” require consideration of the extent to which the specified country adheres to those of its international obligations, constitutional guarantees and domestic statutes which are relevant to the criteria.
The ministerial declaration of 25 July 2011 was affected by jurisdictional error. It was not a declaration authorised by s 198A of the Migration Act. The plaintiffs cannot therefore be taken to Malaysia pursuant to the power conferred.
Likewise, this paragraph from the Joint Judgment of Justices Gummow, Hayne, Heydon, Crennan and Bell:
As already explained, the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, 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; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; 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)
The Jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.
The Minister’s declaration was made beyond power. (my emphasis)
Numerous other passages in the majority judgments are also not flattering to Malaysia. There is no doubt that the lack of any recognition or protection under the laws of Malaysia to refugees and asylum-seekers was the fundamental cause for the High Court’s decision. The image of Malaysia as a decent, law abiding member of the world community and of the Commonwealth has received a massive battering by reason of this decision. Our image must be immediately repaired, and that can only occur if concrete legislative and executive measures are quickly taken. Anyway this is the right thing to do.
B. Parallel proceedings in Malaysia(?)
What would have happened if the same two plaintiffs (or other refugees in a similar position) had filed legal proceedings in the courts of Malaysia seeking a declaration that the government of Malaysia cannot lawfully let them into Malaysia and an injunction restraining the government from permitting them to enter Malaysia. There are no legal or factual impediments to the courts of Malaysia possessing the necessary jurisdiction to determine such a suit. In other words, the courts of both countries have jurisdiction to determine the matter. In some respects, the dispute represents two sides of a coin.
It would be apparent to a Malaysian lawyer that the Australian action is founded in that branch of public law previously known as administrative law, but now fashionably described as judicial review. Because the Australian Constitution is not supreme, no constitutional issues were discussed in the judgment of the High Court. If this dispute had been filed in our Courts, on the other hand, additional over-riding claims could have been relied upon by the Plaintiffs, namely, that their “life” and “personal liberty” would be violated in breach of those fundamental liberties enshrined in Article 5(1) of our Federal Constitution or not being treated equally under Article 8(1). Thus, they would theoretically enjoy constitutional protection in Malaysia.
Having regard to actual submissions made in court in recent times by the Attorney-General on behalf of the Malaysian government in judicial review matters, which submissions have invariably been accepted by our courts in what are deemed politically sensitive cases similar to our hypothetical case brought by the refugees, the case for the refugees would fail in Malaysia for any one of these technical or procedural reasons:-
- “locus standi” of the plaintiffs;
- leave will not be given if the matter is filed as a judicial review application under Order 53 of the Rules of the High Court, 1980; or
- conversely, if the action is instituted as a writ of summons under general law, it would be struck out on a summary application as substantially being a public law matter which can only be filed under Order 53.
Insofar as substantive law is concerned, one can expect our courts to readily accept a submission that Clause 16 of the Arrangement between the two countries which reads:
This Arrangement represents a record of the Participant’s intentions and political commitments but is not legally binding on the Participants.
mean that the arrangement creates no legal obligation on the Government of Malaysia: hence, the government is under no duty to do anything, and cannot be sued on it. Further, it would be successfully argued that the plaintiffs cannot sue on an arrangement to which they were not a party to. Finally, no injunction would lie against the government by reason of Section 29 of the Government Proceedings Act, 1955. If the plaintiff couched their relief in terms of an Order for Prohibition in a judicial review application, that too would be refused.
In other words, the merits of such an action would never have been determined by our courts. Hence, the ultra vires rule in administrative law, which is the foundation of the High Court’s decision in Australia (although described in different language), and the Part II fundamental liberties under our Constitution would never be triggered in the hypothetical Malaysian case. The abject failure of our courts to stand as the arbiter between the all-powerful State and a meek individual or an uninfluential organisation has resulted in its abysmal reputation in the common law world. Whatever international reputation judges like Eusoffe Abdoolcader, Suffian and Harun Hashim brought to our Judiciary in the 1970s and 1980s altogether vanished after the judicial crisis of 1988.
By contrast, the instant decision of the High Court of Australia is yet another demonstration of its standing as one of the four greatest Courts in the Commonwealth, along with the Supreme Courts of United Kingdom, India and Canada. They have achieved their unparalleled reputation in the common law world because of the consistently high standards of their judges, both in the conclusions they have reached (regardless of the identity or status of the parties in front of them) and the process of their reasoning. When the facts and the law warrant such a conclusion, judges in these courts have not acted in a deferential manner to the executive and have often found against it.
The only true measure of a judge’s greatness is his written judgment. That is how a judge is judged, both contemporaneously and by posterity. Lords Atkin, Reid, Denning and Wilberforce of the United Kingdom, Justices Bora Laskin and Brian Dickson of Canada, Justices Owen Dixon and Anthony Mason of Australia and Justices Gajendragadkar and Patanjali Shastri of India are hailed as giants because of their judgments. Infallible, they were not; perfect, they were not; but they are all well respected and renowned for what they have left behind through their decisions. The Bar looks forward to the leadership of incoming Chief Justice Arifin Zakaria to impress upon the judges of the higher judiciary the importance of writing sound judgments which will assist the coherent and principled development of our laws, thereby enhancing the reputation of our Courts.
Cases like Subramanian Subakaran v PP  1 CLJ 470 and Tun Naing Oo v PP  6 CLJ 490 demonstrate that refugees and asylum-seekers can be charged in our courts for entering and remaining in Malaysia, contrary to Section 6(1)(c) of the Immigration Act, and can be punished by imprisonment and whipping. Hundreds of such prosecutions must take place annually; hardly, any are reported or publicised. They all tell a sad tale. According to international surveys, Malaysia has between 90000 and 170000 refugees. They cannot be in a “legal black hole” reminiscent of the hundreds of alleged Taliban foot soldiers held by the Americans at Guantanamo Bay in Cuba so that they are put beyond the rule of law, beyond the protection of law and courts, and absolutely at the mercy of their captors: see the critical expose of the US treatment of detainees in Guantanamo Bay by Lord Steyn, retired judge of the House of Lords, in a 2003 lecture.
Hence refugees suffer the burden of having to comply with our laws by their sheer physical presence here, but do not enjoy the protection of such laws. So, for instance, can a refugee or an asylum-seeker detained unlawfully in Malaysia be entitled to habeas corpus? Surely, the answer must be in the affirmative. But what is totally lacking and must be immediately addressed by our executive and legislature is the enactment of a statute by Parliament governing their rights:
- to enter and remain in the country;
- to be gainfully employed so that they contribute to the labour force and earn a sufficient income, thereby not becoming a burden to society;
- to free or cheap health care;
- to marry and start a family;
- to educate their children; and
- other basic or fundamental freedoms.
Because the entire process of re-settlement to a safe and acceptable third country may take years, the refugees and asylum-seekers must be treated fairly and humanely while in Malaysia. It must always be remembered that they are fleeing murder, persecution, disappearance, torture and other terrible injustices in their home countries. Malaysia, has a duty under international law and common decency, to house them in a civilised fashion, while they are temporarily on our shores, pending departure to safe havens elsewhere.
An important signal has been given by the Australian decision to the people of Kuantan and Pekan who are unhappy with the proposed installation of the Lynas plant in their neighbourhood. They should file proceedings in Australia, if possible, by an action that goes directly to their High Court, as in the refugee case. An argument that any export by Australia of toxin or other dangerous matter that would endanger the environment of another country (Malaysia), and harm its people would contravene the laws of Australia and public international law would probably be accepted by the courts of Australia. At least, there would be confidence by all that such a dispute would be taken seriously by their courts, and dealt with properly and according to the law, regardless of who the litigants are.
Let me conclude with an observation on the commendable speed of the proceedings in the High Court of Australia, culminating in the issuance of the grounds of judgment. The matter was filed in its original jurisdiction on 7 August. An interlocutory injunction was granted on 8 August. The hearing took place on 17 August, when judgment was reserved. On 31 August, judgment was delivered. Four separate judgments were released, totaling 96 pages. The three majority judgments were 32 pages, 27 pages and 19 pages long. The dissent was in 16 pages.
Apart from its length, the reasoning was impeccable (although I have difficulty in understanding the minority judgment of Heydon J.), the language polished, and the treatment of principles first rate. I pay tribute to the masterly performance of the judges of the High Court of Australia. A proud day indeed, for the common law world.
Tommy Thomas is a leading constitutional lawyer in Malaysia.