The case of SIEV 258 involved the arrival of 54 smuggled migrants and two crew who were intercepted near Scott Reef on 31 July 2011. No prosecution followed the arrival of this vessel. SIEV 258 was the first unauthorised boat to arrive in Australia after the signing of an arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement in Kuala Lumpur on 25 July 2011. Lawyers acting for the some of the smuggled migrants who arrived on SIEV 258 successfully sought an injunction from the High Court of Australia which prevented their transfer to Malaysia and rendered the bilateral agreement inoperational.
IndonesiaAustraliaHigh Court of Australia
On 7 August 2011, a group of Melbourne-based lawyers successfully sought an injunction by the High Court to stop the transfer to Malaysia of 15 of the SIEV 258 passengers. About three weeks later, on 31 August 2011, the High Court ruled that the Minister's decision to return the men to Malaysia was invalid as it violated s 198A of the Migration Act 1958 (Cth). In what has been widely described a decision that delivered 'a crushing blow to the government' the High Court effectively ruled that the agreement with the Government was unlawful.
The High Court's decision centered on the interpretation of s 198A(1) of the Migration Act 1958 (Cth) which enables immigration officers to take 'offshore entry persons' (which includes persons, such as smuggled migrants, who arrive in Christmas Island unlawfully) to a country that has been declared by the Minister under subs 198A(3). This subsection, introduced into the Act in 2001, permits a declaration if the specified country, inter alia, provides effective procedures and protection for persons seeking asylum, protection to persons who have been granted refugee status, and that meet 'relevant human rights standards in providing that protection.' On 25 July 2011 the Immigration Minister 'declared' Malaysia accordingly.
The High Court held that this declaration was affected by jurisdictional error and was made without power. Chief Justice French found that:
'The declaration must be a declaration about continuing circumstances in the specified country. It cannot therefore be a declaration based upon, and therefore a declaration of, a hope or belief or expectation that the specified country will meet the criteria at some time in the future even if that time be imminent. It is a misconstruction of the criteria to make a declaration of their subsistence based upon an understanding that the executive government of the specified country is "keen to improve its treatment of refugees and asylum seekers". Nor could a declaration rest upon a belief that the government of the specified country has "made a significant conceptual shift in its thinking about how it wanted to treat refugees and asylum seekers" or that it had "begun the process of improving the protection offered to such persons". Yet the Minister's affidavit suggested that, at least in part, this is how he approached the questions he had to ask himself before making the declaration. […]
'The criteria for a declaration set out in s 198A(3)(a) […] are statutory criteria, albeit informed by the core obligation of non-refoulement which is a key protection assumed by Australia under the Refugee Convention. […] [I]t is clear that [the Minister] did not look to, and did not find, any basis for his declaration in Malaysia's international obligations or relevant domestic laws.'
Justices Gummow, Hayne, Crennan and Bell further held that:
'Contrary to the submissions of the Minister and the Commonwealth, the matters stated in s 198A(3)(a)(i) to (iii) are not established by examination only of what has happened, is happening or may be expected to happen in the relevant country. The access and protections to which those sub-paragraphs refer must be provided as a matter of legal obligation. […]
'A country does not provide protections of the kind described in s 198A(3)(a)(ii) or (iii) unless its domestic law deals expressly with the classes of persons mentioned in those sub-paragraphs or it is internationally obliged to provide the particular protections. In particular, a country does not provide protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country, unless the country in question provides to persons who have been given refugee status rights of the kind mentioned in the Refugees Convention. Not only did the Arrangement not oblige Malaysia to provide any of those rights, no provision was made in the Arrangement that (if carried out) would provide any of those rights.'
Justice Kiefel, in her judgment, also found that Minister's declaration was invalid as he misconceived the inquiry posed by s 198A(3) Migration Act 1958 (Cth).
Justice Heydon dissented.
Some reports put the number of passengers on board SIEV 258 at 55, comprised of 44 Afghans and 11 Pakistanis.
The passengers were initially taken to Christmas Island and placed in immigration detention for further processing.
At the time of their arrival, it was anticipated that this group of asylum-seekers would be removed to Malaysia after a recently completed agreements between the Australian Government and the Government of Malaysia. Within a day of the interception of SIEV 258 Mr Chris Bowen, Minister for Immigration and Citizenship told media outlets that the passengers 'would be sent to Malaysia within "weeks" once they had been identified and screened.' Representatives of The Greens, an Australian political party, meanwhile called on the Australian Government to process the passengers in Australia.
On 1 August, 2011, Prime Minister Julia Gillard remarked that Australian Federal Police (AFP) officers 'would take "appropriate steps" to ensure the asylum-seekers are transferred to Malaysia' and that counsellors had been made 'available to talk things through with people.' Meanwhile Immigration Minister Bowen emphasised that 'people aren't to be given a choice as to whether to go back to Malaysia'.
On 2 August 2011, the Department of Immigration and Citizenship (DIAC) announced that it would post a video of the SIEV 258 passengers' return to Malaysia on the website YouTube in order to deter others from trying to move to Australia illegally by boat.
While the 'vetting' process of the SIEV passengers continued, arrangements were made to charter one or more passenger jets to fly 15 men of the group to Malaysia on or before 8 August 2011. Meanwhile, criticism over the plan to remove the group increased when it became known that at least 18 of the SIEV passengers were minors.
On 5 August 2011 some of the asylum seekers who had been told that they would be returned to Malaysia entered a hunger strike and rang a local refugee advocate on Christmas Island to alert her to their pleas to remain in Australia. DIAC officials initially declined to confirm the hunger strike, saying that 'just because someone skips a meal or two does not mean they are on voluntary starvation.' The hunger strike continued for about a week.
Human rights lawyers in Melbourne, acting on behalf of two of the SIEV 258 passengers and six unaccompanied minors sought an injunction against the transfer to Malaysia. On Sunday, August 7 2011, at 6 pm Justice Hayne issued that injunction. The group remained on Christmas Island. The High Court delivered its judgment on August 31, 2011 (see Procedural History).
Haki Sakhi (alias Zamin Ali)
A report published in The Australian newspaper on 1 August 2011 alleged that SIEV 258 had been organised by a migrant smuggling ring headed by Mr Haji Sakhi, alias Zamin Ali, a Pakistani national who was in the jail at the time of the SIEV 258 arrival. The newspaper cites 'Asian syndicates operating from Jakarta' as the source of this information.
Initial reports about the arrival of SIEV 258 suggested that the vessel was manned by two crew.
There is no record of any prosecution that followed the arrival of SIEV 258.
High Court of Australia
Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144
Transcript of Proceedings, In the matter of a proposed application by Sayed-Navab Shah & Ors against the Minister for Immigration and Citizenship and the Commonwealth of Australia [2011] HCATrans 195 (7 August 2011)
This entry was copied from The Migrant Smuggling Case Database, launched by the University of Queensland Migrant Smuggling Working Group in August 2013.
SIEV 258 was the first unauthorised boat to arrive in Australia after the signing of an Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement in Kuala Lumpur on 25 July 2011. Under the agreement, Australia would resettle 4000 declared refugees from Malaysia and, in return, transfer 800 unauthorised boat arrivals to Malaysia, thus denying these 800 persons the ability to seek asylum in Australia. On 7 August 2011, a group of Melbourne-based lawyers successfully sought an injunction by the High Court to stop the transfer to Malaysia of 15 of the SIEV 258 passengers. About three weeks later, on 31 August 2011, the High Court ruled that the Minister's decision to return the men to Malaysia was invalid as it violated s 198A of the Migration Act 1958 (Cth). In what has been widely described a decision that delivered 'a crushing blow to the government' the High Court effectively ruled that the agreement with the Malaysian Government was unlawful.
Following the High Court's striking down of the Government's so-called 'Malaysia Solution' agreement, the Government attempted to effect the agreement by legislating amendments to the Migration Act 1958. The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 was introduced to Parliament by the minority Labour Party Government on 21 September 2011, but failed to pass due to opposition from both the Green and Coalition parties. This bill was amended, however, by the Migration Legislation Amendment (Regional Processing and Other Measures) Bill 2012, which gained the assent of Parliament on 17 August 2012. This bill succeeded in repealing the limits on Government action imposed by what was then s 198A of the Migration Act 1958.
The so-called 'Malaysia Solution' remained a contentious issue in Australian politics until mid-2013 with Government representatives continuing to advocate the asylum seeker 'swap' with Malaysia and Opposition figure criticising this plan. In early July 2013, the then Immigration Minister Mr Tony Burke conceded that the 'Malaysia Solution' was no longer a viable policy option.