High Court stalls Malaysia deportations until at least August 22

Gillard Government now without a 'Malaysian Solution'

• UPDATED: Staff reporters
• From: The Australian
• August 08, 2011 6:32PM

Refugee lawyer David Manne speaks to journalists outside court

buildings in Melbourne. Picture: Stuart Mcevoy Source: The Australian

THE Gillard government's Malaysia Solution has suffered a new setback with the High Court extending an injunction against deporting asylum-seekers for at least another fortnight.

Refugee advocates had gone to the High Court to fight deportations of asylum-seekers to Malaysia due to begin today.

Today's order follows a temporary injunction imposed last night, which prevented 16 asylum-seekers being flown to Kuala Lumpur this morning.

High Court judge Kenneth Hayne today extended the injunction until the full bench could consider the lawfulness of the government's policy.

Justice Hayne said it was likely the full court could hear the matter in a special sitting in the week beginning August 22.

Immigration Minister Chris Bowen said he hoped the full bench hearing could happen sooner.
"I think it would be better that the case was heard as soon as possible," he said.

Mr Bowen said he believed the government was on "very strong legal grounds" with the policy.

"We will vigorously argue in the full bench hearing that this agreement meets not only our domestic legal requirements but our international obligations," he said.

"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."

Refugee advocate David Manne had sought the injunctions on behalf of asylum-seekers facing transfer to Malaysia under its refugee swap deal.

There are currently more than 100 asylum-seekers facing deportation.

Mr Manne said earlier today the legal action was to challenge whether Australia had the power to refuse asylum-seekers the right to have their cases for refugee protection heard in Australia.

Mr Bowen has said he was expecting legal challenges, but that the government was determined to implement the plan to stem the flow of boatpeople making the perilous sea journey to Australia.

The federal government's people swap deal involves sending 800 asylum-seekers to Malaysia for assessment, in return for accepting 4000 processed refugees.

Under the deal, the 800 asylum-seekers transferred to Malaysia will spend up to 45 days in transit accommodation and would have access to basic education and healthcare.

After resuming in the High Court this afternoon, the case was briefly adjourned because of a document mix-up.

Justice Hayne rebuked the Solicitor-General, representing the commonwealth, because he did not have the relevant legal documents required for the government case.

Justice Hayne said it was unsatisfactory to proceed in this “half-baked manner”.

According to Mr Manne, the High Court challenge to the refugee swap will hinge on the immigration minister's ability to make unilateral declarations on the human rights standards of another country.

Labor is relying on Howard government amendments to the Migration Act as the legal basis for its Malaysian Solution.

The law says the minister may declare a specified country “provides protection for persons seeking asylum” and “meets relevant human rights standards in providing that protection”.

“We'll be challenging that because the consequences here, of course, are very grave,” Mr Manne said earlier today.

“The minister could declare any country to have adequate human rights standards or protections without a review by the court,” he told ABC radio.

“What we know about Malaysia, of course, is that it hasn't signed the refugees convention or other key human rights treaties and that it has this very troubling record when it comes to treatment of refugees.”

Opposition immigration spokesman Scott Morrison said the High Court's decision showed the government was incapable of “getting it right”.

“The High Court today has confirmed this government's asylum policy chaos in once again rebutting the arguments put by the government to stop this injunction,” Mr Morrison told reporters in Sydney.

“The High Court twice in two days sent a very clear message I think about some serious issues with this policy.”

The decision will lead to “continued chaos”, he added.

“But that's no real difference from what we're seeing over the last three years from this government in this area. “They just simply seem completely unable to get this right.

“With the decision today we will see that chaos continue.

“We will see our asylum policy go into a complete state of limbo, and I can only understand that the people smugglers will be the big winners as a result of the government's handling of this matter yet again.”