August 31, 2011
Malaysia-Australia Refugee Swap Deal declared illegal
The refugee swap deal between Australia and Malaysia was deemed illegal by Australia’s High Court today.The hugely controversial arrangement has been popularly referred to as the “Malaysia Solution” in Australia.
The Sydney Morning Herald ran an Australian Associated Press report that quoted Chief Justice Robert French as saying that “the declaration made… was made without power and is invalid.”
The court barred asylum seekers held by Australia from being sent to Malaysia, a ruling that will likely derail the swap deal intending to send 800 boat people to Malaysia in exchange for 4,000 already-processed refugees to Australia.
The move was put on hold earlier this month after Melbourne lawyer David Manne won a High Court injunction to prevent deportations pending a decision on the deal.
He argued that Australian-held asylum seekers had rights to refugee protection assessed in Australia, and that the High Court could review Bowen’s declaration that Malaysia was a suitable destination for offshore processing.
With Canberra agreeing to pick up the RM1 billion bill for the swap, the Gillard administration’s popularity has sunk under pressure from opposition leaders and human rights activists in both Pacific nations.
But Australia’s Labor government insists the swap will stem human trafficking despite a Parliament motion condemning it due to concerns over Malaysia’s treatment of refugees.
There has also been concerns that a biometric system used in Malaysia to register migrants is “riddled with problems” and reports of scalps taking advantage of an ongoing amnesty programme for illegal immigrants have raised further questions over its ability to deal with incoming asylum-seekers.
According to the AAP, refugee lawyers asked the High Court to strike down the deal, arguing that Immigration Minister Chris Bowen (right) did not have the power to send asylum seekers to a country that has no legal obligations to protect them.
They also argued that sending unaccompanied minors to Malaysia would breach the minister’s duty of care as their legal guardian to act in their best interests.
But the Australia’s Solicitor-General Stephen Gageler had argued the government could lawfully declare Malaysia a safe third country even though it had no domestic or international legal obligations to protect asylum seekers.