The legislation which was to facilitate the transfer and processing of asylum seekers in Malaysia was introduced by the Howard government in 2001 as part of the Pacific Solution. Under section 198A(3) of the Migration Act 1958 (Cth), the Minister may make a declaration to the effect that another country provides access for asylum-seekers to effective procedures for assessing protection needs, provides protection for asylum seekers and refugees and meets relevant human rights standards in providing protection. A declaration with respect to Malaysia was made by Immigration Minister Chris Bowen on 25 July 2011.
The validity of the Minister’s declaration and lawfulness of the proposed transfer of two Afghan asylum seekers from Christmas Island to Malaysia were determined by the High Court in Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship  HCA 32. In a 6/1 judgment delivered eight days after the hearing, the High Court ruled the Minister’s declaration to be invalid. The court held that a valid Ministerial declaration under section 198A(3) can only be made in circumstances where the relevant country has obligations under international or domestic law to comply with the stated criteria. Malaysia is not bound by international law to provide the access and protection to meet the criteria required under the section. It is not a party to the Refugee Convention or its Protocol and thus not bound by international law to recognise the status of refugees. Malaysian law makes no provision for the recognition of refugee status. Its immigration laws create an offence of entry without a valid permit, punishable by fine and/or imprisonment of up to 5 years and caning of up to 6 strokes. The criteria in section 198A(3) were accordingly not met.
Because the Ministerial declaration was invalid, the two plaintiffs could not lawfully be removed to Malaysia. The removal of 800 asylum seekers to Malaysia could not be pursued under the current provisions of the Migration Act 1958 (Cth). The Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 sought to amend the Act to empower the Minister to designate another country as an ‘offshore processing country’ on the sole condition that the Minister thinks it is in the national interest to do so.
The report of an enquiry into the Malaysia Solution by the Senate Legal and Constitutional References Committee, tabled in Parliament on 12 October 2011, made a single recommendation that the government not proceed with the implementation of the arrangement ‘due to the obvious defects and flaws in that arrangement.’ The government’s efforts to amend the Migration Act to facilitate the implementation of the arrangement foundered the following day in the face of a lack of support in the House of Representatives (and inevitable defeat in the Senate).
TANIA PENOVIC teaches law at Monash University.