The Gillard government’s refugee policy is in disarray after the full bench of the High Court today made permanent injunctions preventing the removal of asylum seekers to Malaysia.

The action was initially brought before the High Court by refugee activist lawyer David Manne, acting on behalf of clients who had arrived by boat and faced being removed to Malaysia, including a 16-year-old boy.

Under the terms of Malaysia Solution, Australia would have accepted 4000 people certified as refugees from Malaysia in return for the Asian country taking 800 asylum seekers who had arrived on Australian shores.

Monash University legal expert Maria O’Sullivan spoke about the implications of the decision.

Outline of the grounds on which the High Court has made this decision

The Section 198a Migration Act provisions mean that a country has to be legally bound to provide access for asylum seekers to effective procedures and to provide protection for asylum seekers.

A country like Malaysia has to be legally bound either under international law or its own domestic law to do those things [for the Malaysia Solution to be lawful].

The Gillard government’s refugee policy is in disarray after the full bench of the High Court today made permanent injunctions preventing the removal of asylum seekers to Malaysia.

The action was initially brought before the High Court by refugee activist lawyer David Manne, acting on behalf of clients who had arrived by boat and faced being removed to Malaysia, including a 16-year-old boy.

Under the terms of Malaysia Solution, Australia would have accepted 4000 people certified as refugees from Malaysia in return for the Asian country taking 800 asylum seekers who had arrived on Australian shores.

The Conversation spoke to Monash University legal expert Maria O’Sullivan about the implications of the decision.

Can you outline the grounds on which the High Court has made this decision?

The Section 198a Migration Act provisions mean that a country has to be legally bound to provide access for asylum seekers to effective procedures and to provide protection for asylum seekers.

A country like Malaysia has to be legally bound either under international law or its own domestic law to do those things [for the Malaysia Solution to be lawful].

Effectively, the Malaysian Solution is dead unless two things happen. The government can seek to change Section 198a which was the section in question to lower the threshold in relation to human rights standards.

The government would obviously have to get that through parliament and I would say given the minority structure at the moment, the Gillard government doesn’t have a majority so it would have to get cross-bench support and that might be difficult.

Even though the High Court has said the basis of the Malaysia Solution is invalid, that is the declaration [made by Immigration Minister Chris Bowen], the government could get around it but would have some difficulty getting it through parliament.

If Malaysia did actually sign the 1951 Refugee Convention and was able to show that it is legally carrying out those obligations in practice then the Minister might be able to remake the declaration.

Under the Malaysian agreement they were doing a cursory pre-removal assessment but it appears they have to see if someone is a refugee or not. It was argued by the plaintiffs that you had to look at whether the applicant had a well-founded fear of persecution before you transferred them.

So if you find that someone doesn’t have a well founded fear of persecution, in either Malaysia or their source country, then you can obviously remove them from Australia.

But in this instance asylum seekers did say they had a case about persecution, particularly in Malaysia, because they could have been caned or imprisoned or punished because they had committed an immigration offence or they could have been persecuted because of their religion.

The government had tried to argue before the High Court that the guardianship duties in Section 6 of the Guardianship Act were subjugated, [that is] they were less significant than the overarching public interest of transferring people under the Malaysia solution.

They were saying Section 198a, this very important section about declaring a country to be safe, overrode any guardianship duties the minister had over unaccompanied children.

What the High Court has said is that the Guardianship Act is very important. It says that an unaccompanied minor cannot be deported unless the Minister gives written consent. It means that when you are transferring unaccompanied minors, the minister must give his or her written consent.

You can’t just be released from your international obligations by simply transferring asylum seekers to a third country.

Government is still bound by the Migration Act, domestic law and our international obligations. You can’t transfer someone to a country which is not a party to the 1951 convention.

This is what the Gillard regime and her toyboy Oakeshott have decided to ignore, of course the media bleeding hearts blame Abbott for not supporting it, yet the Government got it through the lower House, proof the Government and their media colleagues are trying to damage Abbott’s credibility, however, he has stood firm, and for this he has risen in many peoples estimation.

I could never support a Malaysian Solution, where people are living in cramped conditions, Malaysia is not party to the UN refugee convention, Malaysia gets to give us 4000 of their worst for 800 Asylum Seekers.

  • the Coalition wants amendments to limit offshore processing to UN Refugee Convention countries, ruling out Malaysia and allowing Nauru.
  • The Coalition offered some sweeteners – including a dramatic increase in Australia’s annual refugee intake – to win crossbench support for its changes but these were rejected by the house.

How can these MP’s who voted against these amendments seriously claim to be seeking a solution.  The Opposition has provided a more humane approach and a solution that WILL work

As Joe Hockey said in Parliament “This government is now asking us to support a situation where a 13-year-old child could be sent to another nation without any regard for their welfare after that moment. Even if we have words from the immigration minister about it being a case-by-case basis, it is the threat of it and from time to time the enactment of it that is the most damning thing for our conscience.”

Under the Howard Government in 2007 there were no longer any children living in detention, why?, because he took on board the concerns of the community and resolved the issue.

As at 31 May 2012 there were 516 children in Immigration Detention facilities including alternate places of detention.

The Greens state :

  • Government is still bound by the Migration Act, domestic law and our international obligations. You can’t transfer someone to a country which is not a party to the 1951 convention.
  • “The Greens will not abandon Australia’s commitments to the Refugee Convention. We’re offering to cooperate with the government and opposition to establish a Multi Party committee to find a solution for the Asylum Seeker crisis, but will not waiver in reminding Australia that immigration policy must be legal and treat people according to our obligations under the Refugee Convention.”

This Gillard regime has proved it is not serious about a solution and does not live up to Australian’s expected ethical standards, and luckily if the Greens stick to the above there is no way this bill will pass in the Senate.