McAdam, Jane; Wood, Tamara --- "Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v. Minister for Immigration and Citizenship and the Australia-Malaysia Arrangement" [2013] UNSWLRS 22

Last Updated: 24 March 2013

Australian Asylum Policy All at Sea: An Analysis of Plaintiff M70/2011 v. Minister for Immigration and Citizenship and the Australia-Malaysia Arrangement

Jane McAdam, University of New South Wales
Tamara Wood, University of New South Wales

This paper is available for download at Available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2233194

Citation

This paper was published in International and Comparative Law Quarterly, Volume 61, Issue 01, January 2012, pp 274-300. This paper may also be referenced as [2013] UNSWLRS 22.

Abstract

On 25 July 2011, the governments of Australia and Malaysia announced that they had entered into an 'Arrangement' for the transfer of asylum seekers. Its stated aim was to deter asylum seekers from travelling by boat to Australia by providing that the next 800 asylum seekers to arrive unlawfully would be transferred to Malaysia in exchange for the resettlement of 4,000 UNHCR-approved refugees living there. The success of the Arrangement relied on Malaysia being perceived as an inhospitable host country for asylum seekers, with the Australian Government emphasising that it provided the best form of deterrence. A successful challenge to the High Court of Australia found that the Arrangement was unlawful under the Migration Act 1958 (Cth). This article examines the background to the Arrangement and the implications of the High Court’s decision for the future development of Australian refugee law and policy. In particular, it analyses the international law dimensions of the judgment relating to the reception, processing and protection of asylum seekers and refugees.