THE IMPLICATIONS OF THE FAILED ‘MALAYSIAN SOLUTION’: THE AUSTRALIAN HIGH COURT AND REFUGEE RESPONSIBILITY SHARING AT INTERNATIONAL LAW The Australian high Court and Refugee Responsibility MICHELLE FOSTER* The notion that international cooperation is required in order to adequately respond to the challenge of refugee protection is a well established and accepted concept, yet in recent decades many states’ attempts to engage in responsibility sharing regimes have tended to undermine rather than expand refugee protection. Against this background, the attempt by Australia to implement a regional agreement with Malaysia in 2011 raised serious concerns about its compliance with international and domestic law and was hence challenged in the High Court of Australia. The High Court’s intervention, in which it found that the Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement was not capable of complying with legislative protections designed to uphold the Convention relating to the Status of Refugees (‘Refugee Convention’), has not only provided guidance as to the limits of Australian domestic law in this regard, but has made an important contribution to our understanding of the limits of the Refugee Convention in accommodating responsibility sharing regimes. This article examines the High Court’s judgment in Plaintiff M70/2011 v Minister for Immigration and Citizenship, explaining its background and significance in Australian law, and analyses and assesses its importance to our understanding of the constraints which international law places on the ability of states lawfully to engage in responsibility sharing regimes. CONTENTS I Introduction ............................................................................................................... 2 II Background to the High Court’s Decision in M70.................................................... 4 III The Reviewability of Responsibility Sharing Regimes by Domestic Courts ........... 6 IV International Law and Responsibility Sharing: The High Court’s Contribution .... 11 A Sharing with Whom? Minimum Obligations of States Parties to Responsibility Sharing Arrangements ........................................................ 11 B The Constraint of Non-Refoulement: Substantive and Procedural Aspects ........................................................................................................ 18 C The Meaning of ‘Protection’ in the Refugee Convention ........................... 21 D The Decision to Transfer Individual Asylum Seekers: Procedural and Substantive Concerns.................................................................................. 25 V Conclusion and Implications ................................................................................... 28 * Associate Professor and Director, Research Programme in International Refugee Law, Institute for International Law and the Humanities, Melbourne Law School. The author is grateful for feedback received from colleagues, students and participants at the following conferences and seminars at which the ideas in this paper were presented: ‘Looking to the Future, Learning from the Past: A Conference to Mark 60 Years of the Refugee Convention’, University of New South Wales, 15 June 2011; Staff Research Seminar, Melbourne Law School, 29 August 2011; ‘Beyond the Malaysian Solution? Refugee Responsibility Sharing in the Asia-Pacific Region’, Melbourne Law School, 22 September 2011; The High Court and the Malaysian Solution, Australian Institute of Administrative Law Seminar, Melbourne, 26 October 2011; and the ‘Human Rights and Governance Colloquium’, Queensland University of Technology, Brisbane, 24 November 2011. The author acknowledges the support of the Australian Research Council Project DP1096791. Any errors or omissions remain my own. 1 2 Melbourne Journal of International Law [Vol 13 I INTRODUCTION The Preamble to the Convention relating to the Status of Refugees (‘Refugee Convention’)1 recognises that ‘a satisfactory solution’ to the ‘social and humanitarian’ challenge of refugee protection cannot be achieved without ‘international co-operation’,2 a notion that remains as true today as it was 60 years ago when the key treaty for the protection of refugees at international law was drafted.3 However, the Refugee Convention does not set out the manner by which states may engage in such cooperation, nor does it clearly outline the constraints that operate upon any attempt to engage in responsibility sharing regimes.4 This lack of precision and clarity has arguably been exploited by (mainly developed northern) states which increasingly in recent decades have relied on concepts of cooperation to engage in what is more accurately understood as burden-shifting, rather than burden-sharing arrangements.5 This is perhaps 1 Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) (‘Refugee Convention’). 2 Ibid Preamble. The Preamble to the Refugee Convention recognises that one of the key objectives of the Convention was to ‘revise and consolidate previous international agreements relating to the status of refugees’ and to ‘extend the scope of and the protection accorded by such instruments by means of a new agreement’. It also recognised that the ‘social and humanitarian nature of the problem of refugees’ requires ‘international co-operation’ in order to ensure that it does not become ‘a cause of tension between States’. 3 Indeed, subsequent regional refugee treaties have adopted this principle even more clearly: see, eg, Convention Governing the Specific Aspects of Refugee Problems in Africa, opened for signature 10 September 1969, 1001 UNTS 45 (entered into force 20 June 1974) art 2(4): Where a Member State finds difficulty in continuing to grant asylum to refugees, such Member State may appeal directly to other Member States and through the OAU [Organization of African Unity], and such other Member States shall in the spirit of African solidarity and international co-operation take appropriate measures to lighten the burden of the Member State granting asylum. 4 For the purposes of this article, a responsibility sharing regime is one set by the Michigan Guidelines on Protection Elsewhere, developed by a group of experts in international refugee law — a state or agency ‘acts on the basis that the protection needs of a refugee should be considered or addressed somewhere other than in the territory of the state where the refugee has sought, or intends to seek, protection’: Michelle Foster, ‘Protection Elsewhere: The Legal Implications of Requiring Refugees to Seek Protection in Another State’ (2007) 28 Michigan Journal of International Law 223, 228. The variation in the nature of the schemes and arrangements which have been adopted in practice is outlined and described, explaining the different types of responsibility sharing arrangements adopted by states. 5 See, eg, in relation to Regulation (EC) No 343/2003 of the European Parliament and of the Council of 18 February 2003 [2003] OJ L 50/1 (‘Dublin Regulation’), the acknowledgement by the European Parliament that a correct implementation of the Dublin Regulation may well result in the unequal distribution of responsibility for persons seeking protection, to the detriment of some Member States particularly exposed to migration flows simply on the grounds of their geographical location. 2012] The Australian High Court & Refugee Responsibility Sharing 3 illustrated most vividly in Australia’s experience of the so-called ‘Pacific Solution’6 — a policy which ended ignominiously in 2008 with the acknowledgement by the then government that rather than promoting refugee protection, the policy was about ‘the cynical politics of punishing refugees for domestic political purposes’.7 Yet in 2011 the same government that ended the Pacific Solution attempted to institute a new scheme of responsibility sharing in the form of an Arrangement between the Government of Australia and the Government of Malaysia on Transfer and Resettlement (‘Malaysian Arrangement’),8 which would have resulted in the transfer of 800 asylum seekers from Australia to Malaysia in exchange for up to 4000 recognised refugees from Malaysia to Australia. However, before the first asylum seekers could be transferred from Australia to Malaysia, the Australian High Court intervened, in dramatic fashion, to prevent their removal.9 This article analyses the significance of the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship (‘M70’),10 both for Australia’s future prospects of engaging in regional responsibility sharing schemes and in terms of its contribution to our understanding of the limits of responsibility sharing at international law. Although several multilateral and bilateral responsibility sharing schemes have been operating in other regions for some time — including the Dublin regime in Europe11 and the US–Canada Safe Third Country Agreement12 — there have been few opportunities for senior appellate courts to examine the legality of such schemes in light of states parties European Parliament Resolution of 2 September 2008 on the Evaluation of the Dublin System [2008] OJ C 295E/4, 6. This has also been well documented in literature: see, eg, Pieter Boeles, Maarten, Den Heijer, Gerrie Lodder and Kees Wouters, European Migration Law (Intersentia, 2009) 330, where the authors note that ‘it has become evident’ that the Dublin system does