Court Halts Australia’s Asylum Swap Deal
August 9, 2011 by UPI - United Press International, Inc.
CANBERRA, Australia, Aug. 9 (UPI) — Australia’s High Court dealt a blow the country’s controversial plan to send asylum seekers who arrived by boat to Malaysia for processing.
The court put a temporary stop on the first group, which the government was getting ready to send overseas last weekend.
Lawyers for the group of 16 refugees argued the plan is illegal and judges ruled there was a “sufficiently serious question” over the legality. The court ordered a stop to the plan until a hearing this month to further consider the case.
Justice Kenneth Hayne was visibly irritated when Solicitor General Stephen Gageler appeared ill-prepared with his paperwork, a report in The Age newspaper said.
”It’s unsatisfactory that this matter proceed in this half-baked manner,” the judge said.
Australia is ready to start sending as many as 800 asylum seekers to Malaysia over the next four years under the controversial swap deal announced in May and signed in Kuala Lumpur last month.
In return, Australia will take 4,000 bona fide mostly Myanmar refugees from Malaysia.
The Australian government of Julia Gillard, as previous governments, is wrestling with an annual influx of thousands of boat people. Australia’s Department of Immigration said 134 boats carrying 6,535 people arrived in 2010.
The vast majority of the asylum seekers in Australia arrive in unseaworthy boats after a journey of thousands of miles and after paying human traffickers for the passage. Gillard said she hopes that the deal with Malaysia will send a message to would-be asylum seekers that their voyage would be fruitless.
But even before the court ruling, Gillard was facing heavy political fallout from opposition parties over the agreement’s details and the estimated cost of financing the deportations.
Human rights activists and political critics say refugees are often mistreated in Malaysia, which hasn’t signed the U.N. Refugee Convention, even though the Malaysian government promised at the signing of the deal that it would abide by international standards for the care of the refugees, including allowing them to work in certain cases.
At the signing in Kuala Lumpur, Malaysian Home Affairs Minister Hishammuddin Hussein said Malaysia is committed to treating the new arrivals with dignity. People smuggling is a “vile trade” and “the UNHCR will be there to monitor and safeguard the standards that we have set,” he said.
Despite the setback, Australia’s Immigration Minister Chris Bowen was adamant the government had a strong legal case.
”Nobody should doubt our resolve” to deliver on an agreement to send asylum seekers to Malaysia, Bowen told national media. “I’m confident that when the full bench considers the case the injunction will be lifted, the transfer will occur and the arrangement will be implemented.”
David Manne of the Refugee and Immigration Legal Center in Melbourne is acting for the first group of asylum seekers, 42 in all, including six unaccompanied children.
Manne said he is challenging the transfer on human rights grounds. The immigration ministry can’t guarantee Malaysia will provide adequate assessment procedures, protections and human rights for the asylum seekers.
Manne also said Australia’s immigration minister is failing in his obligations as guardian of asylum-seeking children, a divisive issue even among pro-deportation people.
Australia has backtracked partially on its hard-line policy of sending young asylum seekers to Malaysia.
The government previously said there would be no exemption for unaccompanied minors arriving illegally in Australian by boat. As with adult asylum seekers, the children will be sent to Malaysia to be kept in detention centers until their refugee claim is assessed.
Bowen said otherwise it would encourage people smugglers in Asia to put children on unseaworthy boats beside often dozens of desperate people who have paid thousands of dollars for the journey.
“I don’t want unaccompanied minors, I don’t want children getting on boats to come to Australia thinking or knowing that there is some sort of exemption in place,” Bowen told the Australian Broadcasting Corp. in June.
But a week later and under mounting pressure from human rights groups and biting criticism from members of Parliament, including from his own party, he said the government would look at the case for sending unaccompanied children to Malaysia on a “case-by-case basis.”
“I said I didn’t agree with a blanket exemption for children,” he said. “Of course, what we would do is make sure that each case is considered. For example, you might deal with a 14-year-old girl differently to a male who claims to be a minor.”