Australian high court blocks move to swap 800 asylum seekers for 4,000 Malaysian refugees
By Richard Shears
31st August 2011
The Australian government's planned refugee swap with Malaysia which aims to discourage people smuggling received a severe blow today when a court ruled against it.
Lawyers questioned the deal drawn up with Kuala Lumpur, which would see Australia take 4,000 'processed' asylum seekers from Malaysia in exchange for 800 people held on Australia's Christmas Island.
The High Court finally ruled against the deal, throwing into doubt the future of the scheme, which had been on hold following the legal challenge.
The government believed that sending illegal boat arrivals to Malaysia would send a clear message to people smugglers and severely cut down the number of arrivals.
But lawyers acting on behalf of a 16-year-old boy and a 24-year-old Afghan man went to the High Court and said the two were petrified with fear about being sent to the Asian nation.
The lawyers questioned the ability of Australia to guarantee the human rights of asylum seekers who would be sent away over a period of 12 months.
By a 5-2 majority, the Full Bench ruled that Immigration Minister Chris Bowen's declaration that Malaysia was an appropriate country to send asylum 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,' said a summary of the court's judgement.
Chief Justice Robert French said the court had now ordered Mr Bowen and his department to be restrained from sending asylum seekers to Malaysia.
The government had argued that the deal with Kuala Lumpur ensured the rights of asylum seekers sent to Malaysia would be protected.
Despite the setback for the government, international law expert Professor Donald Rothwell said the ruling did not necessarily close the door on the scheme.
He said.'The government can now seek to change the migration and immigration acts,'
There are more than 6,000 asylum seekers in Australian detention centres.
So far this year 26 boats have arrived in Australian waters carrying nearly 2,000 people seeking a new life.
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