The High Court's refugee swap decision: Beware the hidden jurisdictional fact

Key Points:

The High Court's decision expands the scope of what were traditionally thought to be jurisdictional facts.

The High Court's decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 attracted much media attention. While the case centred on the Government's refugee swap deal with Malaysia, the High Court's decision has important implications for administrative law and government administration more broadly.

What did the High Court say about jurisdictional facts?

A large part of the High Court's decision in Plaintiff M70 concerned the Minister for Immigration's declaration under section 198A(3) of the Migration Act 1958 (Cth) that Malaysia was, essentially, a safe country to send refugees. Section 198A(3) provides that the Minister may declare in writing that a specified country:

provides access to effective procedures for assessing refugee claims provides protection for people seeking refugee status provides protection to people who have been granted refugee status, and meets relevant human rights standards in providing that protection. Six members of the Court found that these four things were "jurisdictional facts". Five of the High Court judges found that the facts must actually exist before the power to issue a declaration was...