- 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.
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