High Court of Australia

Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32

Plaintiff M106 of 2011 v Minister for Immigration and Citizenship

244 CLR 144; 85 ALJR 891; 280 ALR 18

31 Aug 2011

Case Number: M106/2011 M70/2011

Before

French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ

Catchwords

Citizenship and migration – Migration - Refugees - Plaintiffs "unlawful non-citizens" and "offshore entry persons" under Migration Act 1958 (Cth) - Plaintiffs detained under s 189(3) - Each plaintiff claimed asylum under Refugees Convention - Section 198(2) required officer to remove from Australia unlawful non-citizen in detention where no successful visa application made - Section 198A(1) empowered officer to take offshore entry person from Australia to country declared under s 198A(3) - Section 198A(3) empowered Minister to declare that specified country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum-seekers and refugees, and meets relevant human rights standards in providing protection - Whether s 198A only source of power to remove plaintiffs from Australia when asylum claims not assessed in Australia - Whether s 198(2) supplied power to remove plaintiffs from Australia.

Citizenship and migration – Migration - Refugees - Minister declared Malaysia under s 198A - Whether criteria in s 198A(3)(a)(i)-(iv) jurisdictional facts - Whether declared country must provide access and protections as matter of domestic or international legal obligation - Whether Minister's declaration valid.

Citizenship and migration – Migration - Refugees - Children - Second plaintiff entered Australia as unaccompanied minor and "non-citizen child" under Immigration (Guardianship of Children) Act 1946 (Cth) - Section 6 had effect that Minister guardian of second plaintiff - Section 6A provided that non-citizen child could not leave Australia except with consent in writing of Minister - No consent given - Whether taking of second plaintiff to another country lawful.

Words and phrases – "declare", "meets relevant human rights standards", "non-citizen child", "offshore entry person", "provides access", "provides protection", "Refugees Convention", "unaccompanied minor", "unlawful non- citizen".

Immigration (Guardianship of Children) Act 1946 (Cth) – ss 4AAA, 6, 6A.

Migration Act 1958 (Cth) – ss 189, 198, 198A.

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