Plaintiff M70/2011 & Plaintiff M106 of 2011 by his Litigation Guardian v Minister for Immigration and Citizenship
|High Court of Australia|
The High Court found that Malaysia was not legally bound to protect the asylum seekers under the Australian Immigration Act, 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.
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. The Court granted an injunction restraining the removal of the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.
- High Court of Australia, Plaintiff M70/2011 v Minister for Immigration and Citizenship & Anor (22 May 2012)
- ABC News, High Court scuttles Malaysia swap deal (22 May 2012)
- High Court of Australia. "Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship  HCA 32,  (31 August 2011).". Retrieved 24 June 2014.