Abstract
This case note explores the recent Australian High Court decision of Plaintiff M70/2011 v Minister for Immigration and Citizenship , which declared a proposed regional refugee status determination arrangement between Australia and Malaysia to be unlawful under Australian law. While the decision was determined by the specific statutory construction of Australian's migration legislation, it nonetheless draws attention to the legal character of what constitutes 'protection' under international refugee law and suggests the necessary legal and factual conditions that must exist in a 'third country' in order for any transfer of refugee processing and recognition procedures to be seen to satisfy Convention obligations. It thus represents a significant judicial challenge to the contemporary trend pursued by wealthy industrialised nations in the Global North towards erecting barriers for accessing domestic asylum regimes and adopting policies that in effect outsource and extraterritorialise asylum processing under the guise of 'burden sharing' or regional 'harmonisation'. This case note reads the decision as a particular re-articulation of sovereign authority, borders, belonging and place-making.
Highlights
Keywords Refugee Law, Safe Third Country, Regional Processing, Sovereignty, Australian High Court, Malaysia Solution, Hierarchy of Mobility. This case note explores the recent Australian High Court decision of Plaintiff M70/2011 v Minister for Immigration and Citizenship, which declared a proposed regional refugee status determination arrangement between Australia and Malaysia to be unlawful under Australian law
While the decision was determined by the specific statutory construction of Australian’s migration legislation, it draws attention to the legal character of what constitutes ‘protection’ under international refugee law and suggests the necessary legal and factual conditions that must exist in a ‘third country’ in order for any transfer of refugee processing and recognition procedures to be seen to satisfy Convention obligations
On 31 August 2011, the Australian High Court held that a Ministerial declaration implementing a bilateral regional refugee status determination arrangement between Australia and Malaysia was unlawful under Australian law
Summary
On 31 August 2011, the Australian High Court held that a Ministerial declaration implementing a bilateral regional refugee status determination arrangement between Australia and Malaysia was unlawful under Australian law. The current case is significant in demonstrating domestic courts’ increased willingness to partially introduce broader Refugee Convention obligations beyond that of non-refoulement into domestic law when determining what constitutes ‘access’ to effective procedures and ‘protection’ in the context of regional processing arrangements. This case represents a significant judicial challenge to the contemporary trend pursued by wealthy industrialised nations in the Global North towards erecting further barriers to accessing domestic asylum regimes and adopting policies that in effect outsource and extra-territorialise asylum processing under the guise of ‘burden sharing’ or regional ‘harmonisation’.4. This case represents a significant judicial challenge to the contemporary trend pursued by wealthy industrialised nations in the Global North towards erecting further barriers to accessing domestic asylum regimes and adopting policies that in effect outsource and extra-territorialise asylum processing under the guise of ‘burden sharing’ or regional ‘harmonisation’.4 While the decision was determined by the specific statutory construction of the Australian legislative provision, it draws attention to the legal character of ‘protection’ and suggests the necessary factual and legal preconditions that must exist in a ‘third country’ in order for any transfer of refugee processing and recognition procedures to satisfy Refugee Convention obligations
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