The High Court in Australia has ruled against the Federal Government’s refugee swap deal with Malaysia, throwing into doubt the future of the scheme.
The deal was put on hold following a challenge from two asylum seekers who were scheduled to be among the first to be transferred to Malaysia from Christmas Island.
Lawyers for the pair argued Australia could be in breach of its international obligations because it could not guarantee the rights of those sent to Malaysia.
A majority of the Full Bench ruled Immigration Minister Chris Bowen’s declaration that Malaysia was an appropriate country to which to send aslyum seekers was invalid.
The court found that a country must be bound by international or domestic law to provide protection for asylum seekers to be an appropriate destination.
“The court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined,” a summary of the court’s judgment read.
The court had also been asked to decide on the powers of the immigration minister in relation to unaccompanied minors.
It ruled the minister is obliged to provide written consent before an unaccompanied asylum seeker under 18 years is removed from Australia.
Chief Justice Robert French said the court has ordered Mr Bowen and his department be restrained from sending asylum seekers to Malaysia.
ABC reporter Jane Norman who is on Christmas Island says clapping and cheering has been heard from inside the detention centre there.
‘Malaysia Solution’
- Australia agrees to resettle 4,000 refugees from Malaysia in return for sending 800 asylum seekers there
- Malaysia agrees to treat asylum seekers ‘in accordance with human rights standards’
- Critics note Malaysia has not signed the UN Refugee Convention
- Australia to pay for health care, education and special welfare needs for asylum seekers in Malaysia for at least four years
- No blanket exceptions for children, even those who are unaccompanied, but decisions to be made on case-by-case basis
- The UN High Commissioner for Refugees, though not a signatory to the agreement, to help facilitate it
- AFP officers given permission to use force to make asylum seekers comply with their relocation
- Deal budgeted to cost $292 million, with $216 million of that covering cost of resettling refugees in Australia
The Government had argued the individual deal ensured the rights of asylum seekers sent to Malaysia would be protected.
While the ruling is a major setback for the Government, one international law expert says it does not necessarily close the door on the scheme.
Professor Donald Rothwell says the Government can now seek to change the migration and immigration acts.
“There certainly would be a political solution for the Government in seeking to modify and adjust the legislation so that they could circumvent some of the legal issues the High Court raised,” he said.
But any such move would require cross-bench support.
Under the proposed deal Australia will take 4,000 refugees from camps in Malaysia in exchange for the Malaysian government accepting 800 asylum seekers who arrive by boat at Christmas Island.
http://www.abc.net.au/news/2011-08-31/high-court-rules-on-asylum-seeker-challenge/2864218