High Court Rules Against Malaysia Solution

By André Dao

31 August 2011

Today the High Court ruled that the Malaysia Solution was invalid. In a 6-1 judgment, the Court held invalid the Minister for Immigration and Citizenship’s declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims.

Chief Justice Robert French said that “the declaration made…was without power and is invalid.” The Court held that under s 198A of the Migration Act 1958 (Cth), a valid declaration could only have been made if Malaysia was legally bound by international or domestic law to:

  • provide access for asylum seekers to effective procedures for assessing their need for protection;
  • provide protection for asylum seekers pending determination of their refugee status; and
  • provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.

Importantly, the Court also held that the Minister has no power to remove an asylum seeker from the country until their application for asylum has been processed except to a country which meets the criteria set out above.

The Court also held 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 under the Immigration (Guardianship of Children) Act 1946 (Cth).

Refugee lawyer David Manne, representing the asylum seekers who mounted the challenge, welcomed the ruling and has called on the Federal Government to respect the High Court’s decision. Mr.Manne stated that his clients were delighted with the ruling. “These people came here in fear for their lives, seeking safety. They were petrified at the prospect of being sent to Malaysia where they really felt they’d be harmed ”

Whilst the High Court’s ruling is a major setback for the government, according to international law expert Professor Donald Rothwell the government can seek to change the migration and immigration acts to support its policy.

“There certainly would be a political solution for the government in seeking to modify and adjust the legislation so that they could circumvent some of the legal issues the High Court raised.” Such a move would require cross-bench support in both the House of Representatives and the Senate.


The full judgment can be found here.