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Court Strikes Down Australia’s Refugee Swap Deal with Malaysia


Protesters holding placards gather outside a hotel, venue of a signing ceremony between Malaysia and Australia to swap refugees, in Kuala Lumpur, Malaysia, (File)

Protesters holding placards gather outside a hotel, venue of a signing ceremony between Malaysia and Australia to swap refugees, in Kuala Lumpur, Malaysia, (File)

Australia's high court has ruled that the government cannot send asylum seekers to Malaysia under a controversial deal between Canberra and Kuala Lumpur. The court said in a statement that the agreement should be terminated because the rights of asylum seekers could not be guaranteed in Malaysia, which has not signed the United Nations Refugee Convention. Australia had planned to send 800 detainees to Malaysia in exchange for 4,000 verified refugees.

The court’s decision is a major blow to Canberra’s plan to stem an influx of people from poor, war-torn countries attempting to reach Australia by boat.

The judges say Australia’s proposed deal with Malaysia is invalid because the authorities in Kuala Lumpur do not have laws in place to ensure the safety of asylum seekers.

The court found that Malaysia was not legally bound to protect the rights of those seeking asylum under the agreement. It was signed last month and detailed Australia’s plans to deport 800 asylum seekers to Malaysia in exchange for 4,000 certified refugees.

But, almost immediately, the deal was challenged by human rights lawyers. They won a temporary ruling that prevented the transfer of asylum seekers from Australia -- and now the high court has declared the injunction permanent.

However it seems likely that Australia will still have to accept the 4,000 confirmed refugees from Malaysia.

“The court has found that the minister’s declaration under the Migration Act is invalid," said Don Rothwell, a law professor at the Australian National University. "The court has found that the removal of unaccompanied minors from Australia to Malaysia would also be invalid under the provisions of the Immigration Guardianship of Children Act. So, as a result of that, the temporary injunctions that were issued two weeks ago when these proceedings commenced have been upheld," he said. "And they are now permanent injunctions.”

The so-called "refugee swap" deal appears doomed as a result. Constitutional law specialists say it could be revived if Malaysia signed the United Nations Refugee Convention.

The high court ruling also casts doubt on Australia’s plans to reopen an offshore processing center for asylum seekers in Papua New Guinea.

A spokesman for Malaysia's home affairs ministry says the decision was unexpected and that the government is waiting to see if the deal could be changed to make it legal.

In Canberra, the conservative opposition immigration said the judgment was "another policy failure by an incompetent government".

The judges’ decision will increase pressure on embattled Prime Minister Julia Gillard, whose minority government clings to power by a single seat in parliament.

The government had maintained that the agreement struck in consultation with the U.N. refugee agency would withstand any legal challenge.

Australia has long attracted asylum seekers hoping to begin a new life, with more than 6,200 arriving by boat last year. Most are from Afghanistan, Sri Lanka, Iran and Iraq and use Malaysia or Indonesia as a starting point for a dangerous sea crossing to Australia’s treacherous northern waters.

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