HIGH COURT CHALLENGE FREEZES MALAYSIA SWAP DEAL

By Rebecca Devitt

UPDATE: 9 August 2011

Yesterday the High Court extended an order preventing the deportation of asylum seekers to Malaysia until there is a hearing before the full bench to consider whether the government’s policy is lawful.

Lawyers representing the 42 asylum seekers told the court that the Malaysia deal should be ruled invalid and that the asylum seekers are entitled to have their claims to refugee status assessed in Australia. Lawyers for the government argued that the minister had the power to make such an agreement.

In his findings Justice Hayne said the case “raised issues that were sufficiently serious to warrant further consideration by the full court.” This includes the question of whether it is legal to send asylum seekers to Malaysia, as the country is not a signatory to international obligations such as the Refugee Convention and therefore may not be able to provide access to protections referred to in section 198A (3) of the Migration Act 1958 (Cth).

The decision to extend the injunction has been welcomed by refugee advocates, with Amnesty International spokesman Graham Thorn stating that the injunction “vindicated human rights groups concerns about the Malaysian deal.” Lawyer, David Manne who launched the proceedings in the High Court said many of the matters to be explored in the case “were unprecedented in Australia.”

Immigration minister, Chris Bowen, however said that the government had very strong legal grounds behind its policy and argued that whilst this was an interim injunction, “this is not a finding, this is not a legal outcome.” Mr.Bowen also hoped that the hearing could be held more quickly.

The case will return to the court for a directions hearing in Melbourne on 15 August, before appearing before the full bench of the High Court on 22 August.

The transcript of yesterday’s hearing can be accessed here.

8 August 2011

Last night at 8pm, Justice Kenneth Hayne of the High Court ordered a temporary injunction, to stop the removal of the first group of asylum seekers due to be transferred to Malaysia under the Gillard government’s Malaysia solution. The first group of asylum seekers was to be sent to Malaysia at 11.30am today but the injunction granted by Justice Hayne states that the asylum seekers are not to depart Australia before 4.15pm this afternoon, pending the hearing of a challenge to the Malaysia policy in the High Court at 2.15pm.

The challenge in the High Court, headed by David Manne from the Refugee and Immigration Legal Centre in Melbourne on behalf of 42 asylum seekers including 6 unaccompanied children involves “fundamental human rights protections.” Detaining the asylum seekers and sending them to Malaysia is unlawful according to Manne who is challenging the idea that Malaysia is the best place to send refugees, given it is a country “which hasn’t signed any human rights treaties or the refugee convention.”

Refugee advocates have expressed concern about the deportation of children and unaccompanied minors to Malaysia under the deal with the United Nations Children Fund (UNICEF) urging Australia not to send children to Malaysia due to fears over their safety and well-being.

Norman Gillespie from UNICEF stated that they would be “extremely concerned if any unaccompanied minor would indeed be deported in such a way. It is a trauma to come to Australia in this manner. It is an even greater trauma to be then deported.”

Lawyers for the asylum seekers are also arguing that Immigration Minister Chris Bowen is the legal guardian of the unaccompanied minors in the group and therefore has a responsibility not to send them to Malaysia. The asylum seekers from Afghanistan and Pakistan are distressed and extremely fearful of being harmed in Malaysia. The case is aimed at protecting vulnerable people and “asking the court whether the Australian government has the legal power to expel them to Malaysia.”

In proceedings last night, Debbie Mortimer SC, representing the asylum seekers sought an injunction stopping removal to Malaysia and an injunction requiring the Commonwealth to provide asylum seekers with access to legal advice. Under section 256 of the Migration Act 1958 (Cth) there is a statutory obligation to “afford a person in detention all reasonable facilities for the access to legal advice in relation to their detention.” Justice Hayne ruled that the Minister was already obliged to provide asylum seekers with access to legal advice and rejected the second injunction.

Immigration Minister Chris Bowen stated that challenges to the Malaysia policy were to be expected and that the government was committed to “breaking the people smugglers business model and deterring people from taking that very dangerous boat journey to Australia.”

Jessie Taylor has provided an excellent explanation of the legal proceedings leading to the injunction, which can be accessed here.

There is also a petition to stop the deportation of children as part of the Malaysia Solution, which can be accessed here.

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