Government's attempt to send thousands of asylum seekers from Iran, Iraq, Afghanistan and Sri Lanka to Malaysia is illegal, judges rule.
Australia cannot send asylum seekers to Malaysia, High Court rules
CANBERRA // Australia's highest court ruled yesterday that asylum seekers cannot be sent to Malaysia, a major blow to the government's plan to stem an influx of people from poor countries attempting to reach Australia by boat.
The High Court reached a 6-1 majority decision to make permanent an injunction that has prevented Australia from transferring 800 asylum seekers to Malaysia in return for Malaysia sending 4,000 registered refugees for resettlement. The ruling cannot be appealed against.
Australia has long attracted asylum seekers hoping to start a new life, with more than 6,200 arriving by boat last year. Most were from Afghanistan, Sri Lanka, Iran and Iraq, and used Malaysia or Indonesia as a starting point for a dangerous sea journey to Australia.
The government had maintained that the deal struck in consultation with the United Nations' refugee agency, UNHCR, would withstand any legal challenge. Human rights groups had criticised the plan, arguing that asylum seekers were treated poorly in Malaysia, which has not signed the UN Convention on Refugees.
Government lawyers had argued in court that Australia could lawfully declare Malaysia a safe third country to process refugee claims even though it had no domestic or international legal obligations to protect refugees.
The court said Malaysia has not signed the UN Convention on Refugees and the deal with Australia did not legally bind Malaysia to recognise the status of refugees under its domestic law. It said any suitable third country must have obligations under international or domestic law to protect asylum seekers and refugees.
The court also said the immigration minister, Chris Bowen, had no legal power to remove from Australia asylum seekers whose refugee claims had not yet been determined.
Mr Bowen said the rate of asylum seekers reaching Australia by boat had slowed since the Malaysian deal was announced in May. He now expected that human traffickers would capitalise on the court ruling and boat arrivals would gather pace.
"Let's make no bones about it: Today's decision by the High Court is a profoundly disappointing one," Mr Bowen told reporters. "It is a significant blow to our efforts to break the people smugglers' business model."
The government had sought urgent legal advice on the ruling's ramifications and the government would consider its options, he said.
Amnesty International welcomed the ruling as "a landmark victory for human rights".