Full Court Minute Books

Case M70/2011

Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor

Plaintiff M106 of 2011 by his Litigation Guardian, Plaintiff M70/2011 v. Minister for Immigration and Citizenship and Anor

Case No.

M70/2011; M106/2011

Case Information


Administrative law — Jurisdictional error — Procedural fairness — Detention and transfer to third country of "irregular maritime arrivals" — Arrangement between Governments of Australia and Malaysia for transfer and refugee status determination of up to 800 people from Australia to Malaysia executed on 25 July 2011 ("Arrangement") — First defendant ("Minister") declared Malaysia a "specified country" ("Declaration") pursuant to s 198A(3) of Migration Act 1958 (Cth) ("Migration Act") — Minister gave direction not to process asylum claims of "offshore entry persons" ("Direction") — Malaysia not party to certain international instruments — Domestic law of Malaysia does not recognise status of "refugee" or "asylum seeker" — Plaintiffs offshore entry persons brought to Christmas Island, an "excised offshore place" under Migration Act — Plaintiffs claim to have well-founded fear of persecution in country of nationality and sought protection from Australia — No assessment of protection obligations to plaintiffs undertaken — Plaintiffs fear they will be transferred to Malaysia — Whether s 198(2) of Migration Act authorises detention and removal of offshore entry persons for purpose of assessment in third country when no assessment of protection obligations undertaken — Whether s 198A of Migration Act the only source of power, or a limitation on s 198(2) power, to detain offshore entry persons whose claims have not been determined — Whether Declaration a valid and enforceable legislative instrument — Whether, by reason thereof, s 198(1) of Migration Act does not confer power to remove plaintiffs to Malaysia — Whether contents of Arrangement capable of providing basis for Declaration under s 198A(3)(i)-(iv) of Migration Act — Whether Minister must be satisfied as to matters in s 198A(3)(i)-(iv) to make a declaration — Whether criteria in s 198A(3)(i)-(iv) matters of jurisdictional fact — Whether, in making Declaration, Minister's satisfaction miscarried or formed otherwise than in accordance with law — Whether Declaration invalid — Whether power in s 198A(1) constrained by requirement to consider individual circumstances — Whether, by his Direction, Minister unlawfully fettered and constrained discretionary power in s 198A(1) — Whether Minister under duty to act in best interests of unaccompanied minors who are "non-citizen children" — Whether in best interests of children to whom Direction applies to be sent to Malaysia — Whether Direction requires repository of s 198A(1) power to contravene Minister's duty as guardian to act in best interests of non-citizen children — Whether Minister constructively failed to exercise jurisdiction under ss 46A and 195A of Migration Act — Migration Act, ss 4AA, 5, 46A, 189(3), 195A, 198, 198A, 486B — Immigration (Guardianship of Children) Act 1946 (Cth), s 4AAA, 6.

Words and phrases — "asylum seeker", "excised offshore place", "irregular maritime arrivals", "offshore entry persons", "non-citizen child", "refugee".

Short Particulars


07/08/2011 Hearing (Single Justice, Melbourne)

08/08/2011 Application for an order to show cause

08/08/2011 Hearing (Single Justice, Canberra by videolink to Melbourne)

15/08/2011 Hearing (Single Justice, Melbourne)

17/08/2011 Written submissions (Plaintiffs)
17/08/2011 Annexure to submissions

17/08/2011 Chronology

17/08/2011 Written submissions (Human Rights Commission seeking leave to intervene in M106/2011)

18/08/2011 Written submissions (Defendants)

19/08/2011 Reply

22/08/2011 Hearing (Full Court, Canberra)

23/08/2011 Hearing (Full Court, Canberra)

31/08/2011 Judgment  (Judgment summary)