“The difficulty for asylum seekers now [to legally challenge the Papua New Guinea asylum seeker deal] is that the Migration Act… provides much broader discretion for the minister.” - Dr Michelle Foster, Melbourne Law School, Q&A, 22 July. (Watch the segment on asylum seekers here).
Many refugee lawyers and academics argue the government’s new arrangements to send all asylum seekers arriving by boat to Papua New Guinea breaches Australia’s international obligations under the Refugee Convention. What is less clear is whether it breaches Australian law.
The former Gillard government’s deal with Malaysia to send 800 boat arrivals to that country in exchange for accepting 4000 refugees from Malaysia was struck down by the High Court in 2011 and the government says it expects the PNG arrangement will face similar court challenge. It says it is confident of its legal position, but has declined to release its legal advice.
Dr Foster, the director of Melbourne Law School’s International Refugee Law Research Program, said on Q&A that the deal was “in clear violation of international law” but “the answer isn’t as clear cut” when it comes to whether a challenge under Australian law would succeed. Commitments under international treaties and conventions are not in themselves legally enforceable here.
Whether or not the PNG arrangement can be successfully challenged comes down to the history and interpretation of one section of the Migration Act, which covers the immigration minister’s power to send people seeking asylum to another country for processing.
The section in question is s198A, later repealed and replaced by s198AA in August 2012. At the time of the Malaysia agreement, the section stated that the minister may declare in writing that a specified country “provides access [for asylum seekers] to effective procedures for assessing their need for protection”, and “provides protection” for persons seeking asylum and for persons who are deemed to be refugees. The Minister’s written declaration also needed to state that the specified country “meets relevant human rights standards in providing that protection.”
Under the Malaysia arrangement, Malaysia undertook to treat persons transferred “with dignity and respect and in accordance with human rights standards” and Australia undertook to meet the costs of ensuring the welfare of transferees.
But Malaysian immigration law provided no protections for asylum seekers, and the country was not a signatory to the Refugee Convention.
The immigration minister at the time, Chris Bowen, stated he was satisfied that the Malaysia deal complied with s198A. He did so relying on advice from the Department of Foreign Affairs and after his Department had consulted with the United Nations High Commissioner for Refugees, which indicated the arrangement and operational guidelines were “workable”.
In a legal challenge to the minister’s declaration, the High Court held that the minister could not have formed the belief that the criteria were satisfied because of the lack of enforceable protections in Malaysian law. The declaration was therefore invalid.
In reaching this conclusion, it was important for the Court that the relevant s198A(3) be read in light of the overall purpose of the Migration Act, which included complying with Australia’s obligations under the Refugee Convention.
The Court’s decision was the end of the Malaysia arrangement.
In August 2012, in the raft of amendments in response to the Houston report into asylum seeker policy, the government responded by repealing s198A and replacing it with a new s198AA with the support of the opposition.
The new section declared that the minister may “designate that a country is a regional processing country” on the condition that the minister thinks that it is in the “national interest”.
Effectively, the new section provides the minister with broader discretionary powers. To designate a country as a “regional processing country”, the minister only has to “think” that to do so would be in the “national interest”. And in determining the national interest, the minister only has to have regard to any “assurances” the designated country makes in relation to expelling a person from that country contrary to the Refugee Convention. Those assurances need not be legally binding.
As with the Malaysia arrangement, any challenge to the PNG arrangement would have to make the case that what the national interest requires must be read in light of the purpose of the Migration Act to fulfil our obligations under the Refugee Convention. And that with this purpose in mind, there are limitations to what the minister could possibly “think” was in the national interest.
The details of the arrangement would be a crucial part of any challenge, as this would be the primary evidence of the assurances made by the PNG government.
Under the new section, the existing state of the law in PNG is likely to be less relevant than it was in the challenge to the Malaysia arrangement. PNG, unlike Malaysia, is a signatory to the Refugee Convention, but with some significant reservations, including to the right of refugees to employment, housing, education and freedom of movement. However, PNG has said it will remove its reservations to these protections under the Convention.
Dr Foster is correct: it would be harder to challenge the PNG asylum seeker deal than it was to challenge the Malaysia agreement. My assessment is that the minister’s discretion under s198AA is sufficiently wide to support the PNG arrangement. But statutory interpretation is not a science, and it was a considerable shock to the government that its Malaysia arrangement did not survive the High Court challenge in 2011.