Asylum Seekers “at risk of persecution in Malaysia”


The High Court of Australia heard some damaging statements about Malaysia today:

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THE Gillard government‘s “Malaysian Solution” has been thrown into disarray after being ruled unlawful by the High Court.

The judgment of the full bench, handed down to a packed courtroom in Canberra, found Immigration Minister Chris Bowen‘s declaration of Malaysia as a country to which asylum-seekers could be sent for processing was “invalid”.

Chief Justice Robert French said the court ordered Mr 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.

Lawyers for 41 asylum-seekers were granted a temporary injunction over three weeks ago after appealing against their forced transfer to Kuala Lumpur from Christmas Island.

They were the first group of asylum-seekers to be moved to Malaysia after the government formally signed the new deal in July, which will see 800 boatpeople sent to the country in return for Australia accepting 4000 confirmed refugees from Malaysia.

          Debbie Mortimer SC, acting for the group, argued the government’s policy was not lawful because Malaysia was not a signatory to the UN refugee convention and therefore did not provide enough legal protection.

She previously told the High Court in a two-day hearing the plaintiffs were at risk of persecution in Malaysia due to their religious beliefs.

Ms Mortimer also questioned whether Mr Bowen had the power under the law he relied upon to forcibly remove people to another country.

“Fundamental rights are at stake . . . liberty, freedom of movement . . . and freedom from assault,” she said.

“The proposed conduct of the commonwealth intervenes with all three of these rights.”

Ms Mortimer also claimed Mr Bowen would breach his role as guardian by sending unaccompanied minors to Malaysia.

But Commonwealth Solicitor-General Stephen Gageler SC, acting for Mr Bowen, argued Malaysia needed only to guarantee it would not send refugees back home to fulfil protection obligations.

He previously told the court that although Malaysia was not a signatory on UN human rights conventions, “the Malaysian authorities generally co-operate with the UN High Commissioner for Refugees”.

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