The Australian High Court Judgment is to be found below...first read the report in the Australian media.
1) The country must be legally bound by international law or its own domestic law to:
2) provide access for asylum seekers to effective procedures for assessing their need for protection;
3) provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.
In addition to these criteria, .... that the country meet certain human rights standards in providing that protection.
It is time for Malaysia to enact laws for the recognition of refugees and asylum seekers - in which there would also be clear provisions how Malaysia will deal with people who come to Malaysia claiming refugee status...or political/social/economic/... asylum status.
Better still if Malaysia could ratify the UN Declaration and related conventions on refugees, maybe even migrant workers and their families - but Malaysia, really is not likely to do this - so the very least that Malaysia should do is to have its own laws to deal with refugees/asylum seekers...
No deal: High Court kills off Malaysian asylum seeker plan
- From: news.com.au
- August 31, 2011
The ruling could spell the end of the government's plans for off-shore processing. Picture: Stephen Cooper Source: The Daily Telegraph
THE High Court has vetoed the Malaysian asylum seeker swap in a ruling that has smashed the Government's entire strategy to halt people smugglers.
It also could spell the end of its plans to set up any off-shore processing of refugee applications.
The Full Bench, in an expedited judgment, found by six to one that Malaysia was not bound to look after the human rights of the 400 asylum seekers now under Australian care.
It found Immigration Minister Chris Bowen could not declare Malaysia to be a country where people could be sent to be processed as refugees.
The court ruled that no country could receive asylum seekers from Australia unless it was legally bound by international law or its own domestic law to provide access for asylum seekers to protection pending processing of their applications for refugee status.
Malaysia is not a signatory of the United Nations conventions on refugees.
“Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims,'' said a statement from the court.
“After an expedited hearing before the Full Bench, the court by majority made permanent the injunctions that had been granted earlier and restrained the minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.''
The matter came before the nation's superior court after an application made on behalf of a 16-year-old boy and a 24-year-old Afghan man who, their lawyer said, were petrified with fear about being sent to Malaysia.
The High Court spent a day-and-a-half considering the issue before reserving its ruling until today.
One issue raised by the legal team for the detainees on Christmas Island was the ability of Australia to guarantee the human rights of the 800 asylum seekers sent to Malaysia.
Commonwealth Solicitor-General Steven Gagler told the court the agreement and declaration of Malaysia as a suitable destination was legal and met the obligations Australia has under the UN refugee convention.
Liberal immigration spokesman Scott Morrison said before the ruling was handed down that a victory for the Government would not mean endorsement of the merits of the swap deal.
“If the Government is successful today in the High Court then that would basically just be an acknowledgment by the court that the minister has the power to make this decision,'' Mr Morrison told ABC Radio.
“It won't be any reflection of whether it's a good policy or a bad policy or whether it's a policy that provides protection to refugees. It will simply be a decision by the court about the minister's powers under the act."
Mr Morrison later called the ruling “a devastating blow for a grossly incompetent government’’.
“This is part of a continuing pattern of failure from a Government that just can’t get anything right,’’ Mr Morrison said.
Legal experts said the Government’s only option might be to change legislation, but it would be unlikely to get the backing of the Greens and Liberals to pass legal changes.
“It’s difficult to see how this situation could be rectified,’’ ANU law professor Penny Matthews told SkyNews.
“Malaysia would have to become party to relevant treaties in an awful hurry and they are not necessarily going to do that.
“So I think this means it’s the end of the Malaysian swap.’’
Prof Matthews said the Government might be able to continue with plans to set up a processing centre on Papua-New Guinea’s Manus Island if it can overcome the country’s approach to human rights.
“With Papua-New Guinea it is a party to the refugee convention although it does have significant reservations,’’ she said.
“When countries become party to a treaty they can say there are certain provisions they will not abide by.
“So Papua-New Guinea for example has significant reservations about the right to liberty in the refugee convention.’’
The Opposition denies the decision would also undermine its chief option of re-opening the detention centre in Nauru.
The court was specific about that in their commentary in the judgement, and Nauru is set to sign the convention, Mr Morrison told news.com.au.
Immigration Minister Chris Bowen this afternoon said people smugglers will capitalise on the court decision.
He said the High Court had applied “a new test to how protection should be demonstrated''.
“Clearly, that is something that had not been understood before,'' he said, defending the Government's legal advice.
Mr Bowen declined to rule out sending people to Nauru but said urgent legal advice was needed with regard to other off-shore processing proposals.
He added it “is a significant blow'' to the Government's efforts to stop people smugglers, who had been in retreat since the Malaysian plan was announced on May 7.
“You can expect people smugglers to be capitalising on this arrangement, and to say, You can come to Australia now because the Malaysia agreement has been ruled invalid by the High Court,'' the minister told reporters.
He said Cabinet would consider the fate of the 330 boat people who were to have been sent to Malaysia.
Australia will take all the 4000 processed refugees to come from Malaysia, but might reduce the overall humanitarian intake to fit them in.
“I have a responsibility to see this job through,'' said Mr Bowen.
“It's a difficult job. It's perhaps, it would be fair to say, the hardest job I've ever done.
Read more: http://www.news.com.au/national/high-court-rules-malaysian-swap-deal-unlawful/story-e6frfkvr-1226126528979#ixzz1WbDkdVmW
31 August 2011
PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP
PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP
Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.
The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.
The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria.; The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.
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. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of "unlawful non-citizens" given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.
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. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of "unlawful non-citizens" given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.
On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees ("UNHCR") to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so.
The Court emphasised that, in deciding whether the Minister's declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court's decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.
This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.
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