The High Court of Australia has ruled that controversial plans to swap asylum seekers for registered refugees from Malaysia was “made without power and is invalid”. The Minister for Immigration and citizenship has been restrained from removing the asylum seekers in question to Malaysia.
The Gillard government had announced the plans to return asylum seekers arriving by boat as a method of disrupting the businesses of people traffickers. However, civil rights campaigners had argued that the arrangement amounted to a dual system of law for those asylum seekers who arrived by boat and those who arrived by aeroplane. Successive Australian governments have processed asylum seekers offshore at Australian islands in an attempt to obstruct entry to “boat people”.
However, Australia’s commitment to the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) means that Australia must not expel those determined to be refugees to countries where they are likely to be persecuted, though removal to a safe third country is permitted.
Under the arrangement, Malaysia was determined to be a safe third country capable of processing refugee applications instead of the Australian government. However, asylum seekers and refugees in Malaysia are dealt with by the UNHCR and not by the authorities there.
The judgement of the Australian High Court in relation to adult plaintiff M70 from Afghanistan read:
“Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii). The Minister’s conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration. The jurisdictional facts necessary to making a valid declaration under s 198A(3)(a) were not and could not be established.”
In addition, the Minister for Immigration and Citizenship, as guardian of the second plaintiff, had not given permission in writing for the child to be removed to Malaysia. The Minister acts as guardian for all non-citizen children until they become 18.