The Federal Government’s planned refugee swap deal with Malaysia has been ruled unlawful by the High Court.
The decision effectively stymies the Government’s so-called Malaysia Solution.
READ THE HIGH COURT SUMMARY HERE | GOVERNMENT PONDERS RESPONSE
Chief Justice Robert French said the court ordered Immigration Minister Chris Bowen and his department be restrained from sending asylum seekers to Malaysia.
“The declaration made ... was made without power and is invalid,” Justice French said.
The Government had planned to send 800 asylum seekers to Malaysia in exchange for 4,000 already processed refugees.
Refugee lawyers asked the High Court to strike down the deal, arguing that the Immigration Minister did not have the power to send asylum seekers to a country that has no legal obligations to protect them.
They also argued that sending unaccompanied minors to Malaysia would breach the minister’s duty of care as their legal guardian to act in their best interests.
But Commonwealth Solicitor-General Stephen Gageler had argued the Government could lawfully declare Malaysia a safe third country even though it had no domestic or international legal obligations to protect asylum seekers.
A majority of the Full Bench ruled Mr Bowen’s declaration that Malaysia was an appropriate country to which to send asylum seekers was invalid.
The court found that a country must be bound by international or domestic law to provide protection for asylum seekers to be an appropriate destination.
“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,” a summary of the court’s judgment read.
Australian National University international law expert Donald Rothwell said the fact that Malaysia was not a signatory to the UN Refugee Convention was likely “a key factor” in the court’s decision.
“No one can be sent to Malaysia at the moment,” Professor Rothwell said.
“(However) it is certainly within the scope of the minister’s power to issue a new declaration at a later point in time.”
He said any new declarations in relation to reopening the Manus Island facility in Papua New Guinea or the Nauru detention centre “would need to be declarations read in light of the court’s judgment today”.
Professor Rothwell said at face value today’s decision also meant that unaccompanied minors could not be sent to Malaysia, Manus Island or Nauru, without certain conditions being met.
“The court is certainly indicating that the minister needs to take into account ... questions with respect to the human rights and protection of asylum seekers who may be relocated to another country,” Professor Rothwell said.
“By implication, I think the court is suggesting the minister has to demonstrate a much more rigorous determination ... that a country is an appropriate country to which asylum seekers should be sent for offshore processing."
Professor Rothwell noted immigration laws could be “watered down” to give the minister greater scope to make decisions.
Refugee Council of Australia president John Gibson said it appeared that only countries that had signed the UN refugee convention would satisfy the High Court’s criteria for protecting asylum seekers.
“Malaysia is off the table - full stop,” Mr Gibson told Sky News.
Immigration Minister Chris Bowen says the High Court decision overturning the Government’s Malaysia solution is profoundly disappointing and the Government is now considering its options.
Mr Bowen said this was a significant setback to the Government’s efforts to break the people smugglers’ business model.
“Let’s make no bones about it - today’s decision by the High Court is a profoundly disappointing one. Disappointing for the Government, disappointing for me,” Mr Bowen said in Canberra today.
Asked whether the Government would now consider Nauru for offshore processing of asylum seekers, Mr Bowen said he would not rule anything in or out.
Community service groups Baptcare and Mission Australia welcomed the court’s ruling.
The two organisations have backed Melbourne’s Crossway Baptist church in its offer to accommodate and care for the unaccompanied asylum seeker children rather than see them deported to Malaysia.
“We welcome the High Court ruling and now implore the Government to consider alternative proposals to house unaccompanied asylum seeker children,” Baptcare chief executive Jeff Davey said in a statement.
“We would welcome the opportunity to work with Government to create options to release asylum-seeker children into the community where they will have access to the support that every child deserves.”
Crossway senior pastor Dale Stephenson said the decision was a very positive outcome for the unaccompanied minors.
“These children should get a chance to be looked after in the community which is far more beneficial to the child’s long term wellbeing while their asylum application is processed,” he said.
Mission Australia chief executive Toby Hall said Labor promised a humane and even-handed approach to refugees when it was elected in 2007.
“It promised community-led care of refugee children. Following today’s decision we’re hopeful well now see a change of heart and a return to those principles.”