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Sasha Lowes, The Legality of Extraterritorial Processing of Asylum Claims: The Judgment of the High Court of Australia in the ‘Malaysian Solution’ Case, Human Rights Law Review, Volume 12, Issue 1, March 2012, Pages 168–182, https://doi.org/10.1093/hrlr/ngr049
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1. Introduction
For the past decade, Australian migration law has allowed Australia to transfer asylum seekers who arrive in Australia by boat to other states for the processing of their protection claims. Before the transfer can occur, the Minister for Immigration and Citizenship (‘the Minister’) must declare that the specified state will protect those people pending the determination of their claims to refugee status, provide access to effective procedures for assessing those claims, and protect recognised refugees pending a more durable solution such as resettlement in another country.
In July 2011, the Australian and Malaysian governments entered into an arrangement to allow Australia to transfer up to 800 asylum seekers to Malaysia without making any assessment of their protection claims. Two of the affected asylum seekers brought proceedings in the High Court of Australia challenging the lawfulness of the Minister's declaration with respect to Malaysia. This article examines the High Court's decision in what has become known as the ‘Malaysian Solution’ case.1
