This article analyses Australia’s policy of offshore processing of asylum seekers and the Australian High Court’s decision in what has become known as the Malaysian Solution.
The methodology is not explained, but it appears that the author reviewed Australia’s policy of offshore processing and available documentation concerning the Malaysia Solution.
The article provides a brief historical overview of Australia’s policy of offshore processing of asylum seekers and traces the evolution of Australia’s attempts to reduce the number of asylum seekers arriving on its territory. The article gives a brief background to the Malaysia Solution and the 2011 joint announcement between the Malaysian and Australian Governments regarding the Malaysian Solution. The joint announcement set out the Australian Government’s plan for a one-off ‘pilot’ project in which Malaysia would agree to accept a fixed number of asylum seekers from Australia in exchange for Australia agreeing to expand its humanitarian programme for resettling refugees residing in Malaysia. The article considers the features of the arrangement and highlights the concerns raised at the time over the Malaysian arrangement; in particular, that Malaysia was not a party to the Refugee Convention and had no refugee status determination procedures of its own in place and that under Malaysian law, asylum seekers and refugees were treated in the same way as other irregular migrants and may face penalties, including fines, imprisonment and caning for immigration violations.
The article explores the High Court decision regarding the Malaysia Solution, which concluded that for Australia to remove a person from its territory to a third country without having first decided whether the person has a well-founded fear of persecution for a 1951 Refugee Convention may put Australia in breach of its international obligations, particularly the non-refoulement obligation set out in article 33(1) of the Refugee Convention. The article concludes that the High Court decision cast doubt over the Australian Government’s regional processing framework.
The article highlights Australia’s difficulties in managing the offshore processing of irregular migrants as well as the ongoing fragility of the protections afforded to asylum seekers under Australian law. However, because the article’s focus is on the specific issue of the Malaysia Solution case, it does not make a direct contribution to the body of knowledge on irregular migration.
