The Australian High Court, that jurisdiction's highest court, has declared unlawful an arrangement between Australia and Malaysia whereby up to 800 asylum-seekers who arrived offshore after 25 July 2011 were to be sent to Malaysia for refugee claims to be processed there. The Australian government purported to be exercising its power under international refugee law to remove refugees to safe third countries.
The relevant Minister issued a declaration that all offshore entry persons arriving after 25 July 2011 were to be removed to Malaysia. However, the Court found that the Minister acted outside his powers in making this declaration. In particular, it held that it was not open to the Minister to state that Malaysia did and would provide adequate protection to asylum-seekers and refugees. Malaysia is not party to the Refugee Convention and does not recognise the status of refugee in its domestic law.
The Australian Human Rights Commission intervened in support of the second plaintiff, who was a child. The Court held that the removal of a child asylum-seeker to another country could only be lawful with the consent of the Minister, as the child's guardian. The Commission have welcomed the judgment, saying "the Minister...will have to consider the best interests of the child before providing consent...it is not easy to imagine a case where it will be in the best interests of an unaccompanied minor to be sent offshore to have their asylum claims processed rather than processing their claim in Australia".
Click here to view the judgment.
Click here to view the press release of the Australian Human Rights Commission.