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