Charities Applaud High Court Ruling Against Malaysia Swap Deal

Leading Australian Not for Profit Organisations – including Baptcare, Mission Australia and Amnesty Australia – have welcomed the High Court’s ruling which effectively stops the Gillard Government’s asylum seeker swap deal with Malaysia.
Refugee lawyers had asked the High Court to intervene in the government’s plans to send 800 asylum seekers – including unaccompanied minors – to Malaysia in exchange for 400 processed refuges.
In a 5-2 majority decision, the High Court found that Malaysia was not bound by law to look after the human rights of the asylum seekers, therefore the Immigration Minister could not declare Malaysia a country to which Australia can send refugees.
Not for Profit organisations are now calling on the government to consider alternative proposals to house unaccompanied asylum seeker children while their asylum applications are processed.
The Court also ruled that unaccompanied asylum seekers under the age of 18 cannot be taken from Australian without the Minister for Immigration’s written consent under the Immigration Act.
The High Court ruled that the Minister cannot send asylum seekers to a country for processing unless the country is legally bound (by international or domestic law) to:
  • provide access for asylum seekers to effective procedures for assessing their need for protection;
  • provide protection for asylum seekers pending determination of their refugee status;
  • and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.
  • In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.
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.
Along with Melbourne’s Crossway Baptist Church – whose members offered to accommodate and care for unaccompanied asylum seeker children for free – Baptcare and Mission Australia had campaigned to stop the Gillard Government from
Baptcare’s Chief Executive, Mr Jeff Davey says they welcome the High Court ruling, and implore the government to consider alternative proposals to house unaccompanied asylum seeker children.
Davey says Baptcare 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 supports that every child deserves,” said
Dale Stephenson, Senior Pastor of Crossway, says the offer made to the government to accommodate and care for the children still stands. He says asylum seeker 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
Lawyer David Manne, the director of the Refugee and Immigration Legal Centre, who brought the case before the High Court told journalists there was a real sense of relief following the finding.
Human Rights advocacy organisation Amnesty International described the ruling as a landmark victory for human rights.
Amnesty International refugee spokesman Dr Graham Thom says they are delighted that the High Court has prevented this outrageous, politically- motivated scheme from going ahead.
Dr Thom says Malaysia is clearly not a safe destination for refugees and asylum seekers. The Government should never even have contemplated outsourcing Australia's refugee protection obligations to a country which regularly canes, detains and abuses asylum seekers, and which refuses to sign the UN Refugee Convention.
He says now that the High Court has put an end to this sorry saga, it's time for common sense to prevail. Australia should treat all asylum seekers equally, regardless of whether they come by boat or by plane. All asylum seekers should be processed on the mainland in accordance with our obligations under the UN Refugee Convention.


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