Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144 (“The Malaysian Solutions Case”)

The plaintiffs were Afghani citizens who had arrived at Christmas Island (an Australian territory) on 4 August 2011 by a boat from Indonesia.
One of the plaintiffs was under 18 years of age.
The plaintiffs claimed refugee status due to a “well-founded” fear that they would be persecuted if they returned to Afghanistan. This was because they were Shi’a Muslims and were at risk of persecution by the Taliban.
The plaintiffs fell within the meaning of “unlawful non-citizens” under the Migration Act 1958 (Cth) (“the Migration Act“).
The plaintiffs were subject to the “Malaysian Solution” – a Commonwealth scheme where 800 refugees were to be transported to Malaysia without prior assessment of their claims.
The Migration Act requires that refugees’ claims for asylum are to be assessed under the “Convention Relating to the Status of Refugees” (“the Refugee Convention“) or its protocol.
Malaysia was not a signatory to the Refugee Convention.

Was the Government legally able to remove the plaintiffs and transfer them as refugees to Malaysia under the Migration Act?

The High Court found that Malaysia was not legally bound to protect the asylum seekers under the Migration Act. The policy was therefore held to be invalid.
The High Court held that the Minister for Immigration and Citizenship cannot validly deport asylum seekers to a third country unless that country is legally bound by international law or its own domestic law to:
- provide access for asylum seekers to effective procedures for applying for protection;
- provide protection for asylum seekers pending determination of their refugee status;
- provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country; and
- meet certain international human rights standards in providing that protection.
The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister’s written consent.

The full text is available here:

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