Plaintiff M70/2011 v Minister for Immigration and Citizenship

Plaintiff M70/2011 v Minister for Immigration and Citizenship
Court	High Court of Australia
Full case name	Plaintiff M70/2011 & Plaintiff M106/2011 by his Litigation Guardian v Minister for Immigration and Citizenship
Decided	31 August 2011
Citation(s)	[2011] HCA 32, (2011) 244 CLR 144
Case opinions
Majority	French CJ, Hayne, Crennan, Kiefel and Bell JJ the Minister could not declare Malaysia as a country to which asylum seekers could be taken for processing because it did not meet the legislative criteria.
Dissent	Heydon J

Plaintiff M70/2011 & Plaintiff M106 of 2011 by his Litigation Guardian v Minister for Immigration and Citizenship,^[1] was a 6-1 decision, of the High Court of Australia, regarding the movement of asylum seekers to Malaysia under an Australian government policy known colloquially as the Malaysian Solution.

Facts

The plaintiffs,^[2] were citizens of Afghanistan who arrived at the Australian territory of Christmas Island by boat from Indonesia. The second plaintiff was aged 16 and arrived in Australia without a parent or guardian. They were subject to the Malaysian Solution under which 800 asylum seekers who arrived by sea would be transferred to Malaysia, without prior assessment of their protection claims.

Judgment

The High Court found that Malaysia was not legally bound to protect the asylum seekers under the "Migration Act 1958", which therefore made the policy invalid. "Malaysia is not a party to the Refugees Convention or its protocol," the High Court said in a statement.^[3]

Most significantly the 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 additionally that the country meet certain 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.^[1]:[196] The Court granted an injunction restraining the removal of the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

Significance

The ruling was criticised as a 'missed opportunity' by the Government of Prime Minister Julia Gillard and resulted in the Australian Government having to reconsider its response to highly politicised issue of Asylum seekers.^[4]

Notes