Coroner & Legal
Deal scuttled
The High Court has ruled against the Federal Government’s refugee swap deal with Malaysia, throwing into doubt the future of the scheme.
The deal was put on hold following a challenge from two asylum seekers who were scheduled to be among the first to be transferred to Malaysia from Christmas Island.
Lawyers for the pair argued Australia could be in breach of its international obligations because it could not guarantee the rights of those sent to Malaysia.
A 5-2 majority of the Full Bench ruled Immigration Minister Chris Bowen’s declaration that Malaysia was an appropriate country to which to send aslyum 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.
The court had also been asked to decide on the powers of the immigration minister in relation to unaccompanied minors.
It ruled the minister is obliged to provide written consent before an unaccompanied asylum seeker under 18 years is removed from Australia.
Chief Justice Robert French said the court has ordered Mr Bowen and his department be restrained from sending asylum seekers to Malaysia.