UPDATED Milanda Rout From: The Australian
August 31, 2011 3:26PM
THE Gillard government's "Malaysian Solution" has been thrown into disarray after being ruled unlawful by the High Court.
The judgment of the full bench, handed down to a packed courtroom in Canberra, found Immigration Minister Chris Bowen's declaration of Malaysia as a country to which asylum-seekers could be sent for processing was “invalid”.
Chief Justice Robert French said the court ordered Mr Bowen and his department be restrained from sending asylum-seekers to Malaysia.
“The declaration made ... was made without power and is invalid,” Justice French said.
The ruling is a massive blow for the Gillard government, which had hoped the Malaysian refugee swap would be the deterrent it needed to halt the flow of asylum-seeker boats to Australia.
If the government now abandons the plan, it will still be bound under the deal to accept 4000 extra refugees from Malaysia, while being unable to send 800 asylum-seekers there for processing.
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Today's ruling effectively makes permanent an injunction granted over three weeks ago to 41 asylum-seekers who had appealed against their forced transfer to Kuala Lumpur from Christmas Island.
They were to be the first group of asylum-seekers to be moved to Malaysia after the government's formal signing in July of the deal to send 800 boatpeople to Malaysia, in return for 4000 confirmed refugees.
The High Court also found today that unaccompanied asylum-seekers under the age of 18 could not be lawfully taken from Australia without the minister's written consent.
The full bench found the minister could not validly process asylum-seekers in a third country unless that country was bound under law to provide effective protection for them while their refugee status was determined.
The court found processing countries must also provide asylum-seekers with “effective procedures for assessing their need for protection”, and provide protection for certified refugees pending their resettlement or return to their home countries.
“On the facts which the parties had agreed, the court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration,” the court said in a statement.
“Malaysia is not a party to the Refugees Convention or its protocol. The arrangement which the minister signed with the Malaysian Minister for Home Affairs on 25 July, 2011 said expressly that it was not legally binding.
“The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law.”
Debbie Mortimer SC, acting for the group of asylum-seekers, had argued the government's policy was not lawful because Malaysia was not a signatory to the UN refugee convention and therefore did not provide enough legal protection.
She told the High Court during a two-day hearing that the plaintiffs were at risk of persecution in Malaysia due to their religious beliefs.
Ms Mortimer also questioned whether Mr Bowen had the power under the law he relied upon to forcibly remove people to another country.
“Fundamental rights are at stake . . . liberty, freedom of movement . . . and freedom from assault,” she said.
“The proposed conduct of the commonwealth intervenes with all three of these rights.”
Ms Mortimer also claimed Mr Bowen would breach his role as guardian by sending unaccompanied minors to Malaysia.
But Commonwealth Solicitor-General Stephen Gageler SC, acting for Mr Bowen, argued Malaysia needed only to guarantee it would not send refugees back home to fulfil protection obligations.
He previously told the court that although Malaysia was not a signatory on UN human rights conventions, “the Malaysian authorities generally co-operate with the UN High Commissioner for Refugees”.
There are 335 asylum-seekers on Christmas Island who were awaiting expulsion to Malaysia under the deal, including 57 unaccompanied minors.
The government's last hope for an offshore processing solution now appears to be Papua New Guinea, which recently agreed to allow the reopening of a mothballed Howard government detention centre on Manus Island.
Prime Minister Julia Gillard said earlier this month she believed the government would beat the challenge to its Malaysian plan.
“We believe we have a legally sound case and once those proceedings conclude then people should assume that they are liable for transfer to Malaysia,” she said.
