Australian High Court declares refugee swap deal invalid


A major bombshell from the Australian High Court: It’s not on to treat human beings as commodities that can be bartered, especially because Malaysia does not provide protection for the human rights of refugees and asylum seekers under its domestic or international law.

That’s it; the High Court 6-1 majority decision is final and there can be no appeal, unless the deal is substantially changed to ensure that the rights of the aslyum seekers/refugees are legally enforceable in Malaysia.

Listen to the Radio Australia programme audio.

Or here is the transcript from the Radio Australia programme:

The Australian High Court has blocked the government’s asylum seeker-refugee swap deal with Malaysia saying it’s invalid.

The deal to send 800 asylum seekers to Malaysia has been on hold because of the case.

The Australian government has also signed a deal with Papua New Guinea to reopen the immigration detention centre on Manus Island.

Presenter: Bruce Hill
Speaker: Canberra Correspondent, Joanna McCarthy

McCARTHY: Well it’s certainly a bit of a bomb shell from the High Court. Effectively it means that the Malaysia solution as it stands now can’t go ahead unless there is a substantial change made to the way the arrangement was set up between Australia and Malaysia.

Now as we discussed previously, this case was about whether or not the minister can validly declare a country as one to which Australia can send its asylum seekers under a section of the act which says it can only do that where a number of human rights criteria are met and the question was whether or not those criteria must be met legally by Malaysia or whether they must be meant just in the practical reality of what will happen once the asylum seekers are sent there.

Now what the court has decided is that Australia cannot send asylum seekers to Malaysia because Malaysia does not recognise and protect these human rights standards of asylum seekers under its domestic or international law. So just to drill down into that a little further. There are actually four criteria under which the minister can have to look at when he declares a country suitable as a place they can send asylum seekers to and one of those is the country provides access to effective procedures for their refugee claims to be assessed. The second is that the asylum seekers are protected while that refugee status is being determined. And thirdly, that they’re also protected pending either their voluntary return to their country of origin or resettlement in another country.

There is a fourth requirement about human rights standards but the court found only those first three are legally binding and in the case of Malaysia, because the arrangement that Australia has made with Malaysia is not legally enforceable, and because Malaysia is not a signatory to the UN Refugee Convention, then the minister’s declaration that he will send asylum seekers to Malaysia was invalid and the deal cannot proceed at this stage.

HILL: Might Malaysia be justified in feeling a bit miffed at this. Essentially the Australian High Court is suggesting that they can’t be trusted to treat people properly?

McCARTHY: No, well it’s fair to point out that the High Court made the case, but it’s actually making no judgements on the reality of whether or not Malaysia meets the human rights standards that are set down by the UN Refugee Convention. All it’s saying is that Malaysia doesn’t under its domestic law or its international law provide those protections. And Malaysia, we have heard from the government that Malaysia has been making significant efforts to actually improve its treatment of asylum seekers, but certainly they don’t recognise refugees under domestic or international law and in making this arrangement with Australia, they made it clear that from their point of view, they weren’t prepared for the deal to be legally enforceable.

There are a number of questions about whether this deal can be revised in some way. There was a suggestion that perhaps, if Australia is able to convince Malaysia to make the arrangement legally enforceable, then it could be said that the protections are provided under Malaysian domestic law. Perhaps the government could also look to Papua New Guinea, which has signed the UN Refugee Convention and now see Manus Island as the main destination for asylum seekers. But certainly we don’t know how the government has responded to this yet. It’s certainly a big setback for them at a time when they are already suffering record low opinion poll rankings.

HILL: There is no appeal for this. It’s the High Court. They can’t appeal this, can they?

McCARTHY: No, they can’t, that’s it. The decision is final. The only thing they can do is either try to make a new declaration that does fit the criteria that the court has set down and they can only do that by ensuring that this deal with Malaysia is legally enforceable or could try and go back and amend that section of the legislation. But because they don’t have the balance of power and because the Greens and one or two independents have indicated that they’re not particularly happy with this deal, it would be very difficult for them to get that through the parliament. So they’re certainly in a quandary and I think it will be a few headaches in Australia’s immigration department tonight.

HILL: Well obviously, this directly affects this plan to send 800 asylum seekers to Malaysia, but does this also have any implications for the Australian government’s intentions to reopen the centre on Manus Island in Papua New Guinea as well?

McCARTHY: Well, all it means is that if Australia has entered into this deal with Papua New Guinea, the deal must be legally enforceable either under PNG’s domestic law or under international law. Now because PNG is a signatory to the UN Refugee Convention, you could assume that on the face of it that deal is seen as legal by the High Court. So certainly there doesn’t seem to be a big obstacle to the Manus Island solution at this stage, but I haven’t read the full judgement and no doubt the government lawyers will be doing that right now to see whether or not that deal can still go ahead.

HILL: Australia’s always had a problem in dealing with asylum seekers that turned up by boat. They’ve tried all sorts of things and nothing seems to have worked over the years, has it?

McCARTHY: No, it hasn’t and the point should be made that Australia does only receive a small proportion of the world’s asylum seekers, only 1.5 per cent and while Australia is no doubt is a very attractive destination, the fact that it is so far away from the countries of origin and the fact that it is such a perilous and difficult expensive journey to come here by boat. I think accounts for the fact that we do only receive a small number of the world’s asylum seekers. But nevertheless, it has always been a significant domestic political problem and there have been awful cases such as Christmas Island, the Christmas Island boat tragedy last year or the sinking of the SIEV X where we have seen asylum seekers lose their lives at sea making this journey and that’s one of the reasons the government has always said it wants to deter people from making that journey by boat. But while there is such unrest in the world, and while there are desperate people, who want to flee that situation. It does seem that there will always be people who are willing to take that enormous risk and spend their lifesavings trying to get here whatever road blocks are being put up by the government. Although the Opposition does say that under the Pacific Solution, when asylum seekers were sent to Nauru or Manus Island, that the former prime minister, John Howard, did stop boats coming and they argue that their hardline policy was successful and that’s what the Gillard Labor government should now be adopting.

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2 Sep 2011 9.41am

Goverment media’s went on a PR spin. Even Astro Awani had an ‘interview’ with a foreign refugee from Myanmar who claimed that he loved Malaysia and life here was great. In front of the camera. In Malaysia. No pressure right?


2 Sep 2011 6.59pm
Reply to  frags

Yeah, The Dream Maker of Boleh Land ala USA (of the 20th century) for the certified or illegal immigrants. More like a tourism feel of immigration publicity!
When average Malaysians are not having it good, the immigrants are haven-ly excited just to stand on Malaysian soil.

“Senang Cari Makan” should be the official tag line of this cheapo publicity.

Holly Mally
Holly Mally
1 Sep 2011 2.36pm

Another screw-up in the international arena after losing the 2-stone island to Singapore.

1 Sep 2011 1.48pm

the fact that these people seek refuge in Australia means that their choice is Australia not elsewhere like Malaysia. Exchanges can be interpreted as violation of human rights ?
These refugees love kangaroos down under and not the … courts in bolehland ?

1 Sep 2011 3.07pm
Reply to  rilakkuma

If they want to come to Malaysia, there is already an easy route via Project M (or the current Project N aka 6P). Why would they want to risk heir lives in the rough sea?

1 Sep 2011 11.35pm
Reply to  rilakkuma

Illegal immigrants are big business opportunities for those who take the illegal laws in own hands by benefitting from these illegal immigrants.
With added 800, business must surely be good and assured despite the economic downturn.

1 Sep 2011 8.17am

The Australian High Court ruling on the asylum seekers have taught our … Judges in our … Courts how to act independently from the executive…. The judiciary is to preserve and carry out their duties fairly and no one is above the laws of the land. Most importantly, the trials are based solely on facts. Perhaps, our … Judges will start to reflect on their conscience and seek their Allah guidance…..

1 Sep 2011 12.25am

The Malaysian Home Minister is incompetent and this is another one of his hare brained failure. How many more of his failures can this country afford.

31 Aug 2011 10.14pm

IThe High Court of Australia came to a indisputable verdict 6:1 in favor of the lawyers who were representing the refugees. Indirectly, (Unlike the … Courts in Malaysia) they do not trust Malaysia under this UMNO/BN govt, they saw no valid ground to entrust the welfare of those misery souls!…especially the unaccompanied minors to the evil hands! Bravo Australia, stay clear of these UMNO … pretenders!

31 Aug 2011 4.51pm

I wonder what that tin-kosong Home Minister of ours will say now. Rant and rave about some “injustice” and “Malaysia misunderstood” rubbish? I certainly hope he does not come up with some outrageous “we never wanted a refugee swap” U-turn attempt to save face!

Well, Hisham can try whatever he likes, but it is on record that Malaysia’s massive abuses of human rights involving refugees and illegal immgrants has come back to haunt the nation’s reputation. 1Big-shame!

Thank goodness the Australian High Court is protecting the rights and lives of the refugees.