Decision to send asylum-seekers to Malaysia will be made next week

The High Court of Australia met on 22 and 23 August to consider the lawfulness of the Australian Government’s plan to send 800 asylum-seekers to Malaysia.

On August 8, refugee lawyers requested that the High Court prevent the Australian Government from sending the first group of 16 asylum-seekers to Malaysia under a deal that was made on 25 July to send 800 newly arriving boat people to Malaysia. In exchange Australia would accept 4,000 refugees registered with the UN in Malaysia over four years.

This week the High Court heard the legal arguments of refugee and government lawyers.

Refugee lawyers argue that Australian Immigration Minister Chris Bowen does not have the power to send asylum-seekers to Malaysia because Malaysia has not signed the UN Refugee Convention and therefore has no legal obligations to protect the asylum-seekers. The lawyers also argue that sending unaccompanied minors to Malaysia is not in their best interests.

Government lawyers say the agreement and declaration of Malaysia as a suitable destination is legal and does meet the obligations Australia has under the UN Refugee Convention. Australia's only obligation is to ensure protection of those with a well-founded fear of persecution.

Government lawyers told the court that Australia could declare a country a suitable place to send asylum-seekers regardless of whether it was a signatory to the UN Refugee Convention or have relevant domestic laws, which is consistent with the previous Government’s policy of sending asylum-seekers to Nauru.

After hearing both sides of the case, the High Court will deliver its verdict on Wednesday 31 August. Until then no asylum-seekers will be sent to Malaysia.

Five boats carrying 335 asylum-seekers, including 92 children of whom 39 are unaccompanied minors have arrived in Australia since the government signed the Malaysia deal on July 25.

Australia to reopen Manus Island detention centre

Australia's High Commissioner to Papua New Guinea and Papua New Guinea's Foreign Affairs and Immigration minister signed a memorandum of understanding in Port Moresby on 19 August to reopen Manus Island detention centre for asylum seekers.

Under the deal, Australia will send newly arriving asylum-seekers to the Pacific nation for processing and will provide financial assistance to support the establishment and operations of the detention centre.

The memorandum says the establishment of an "assessment centre" will be a visible deterrent to people smugglers. It also says special arrangements will be made for "vulnerable cases, including unaccompanied minors".

Australian Immigration Minister, Chris Bowen says the signing of the MOU is an ''important development''. He also said the deal sent a clear message that countries in the region were working together "to ensure the integrity of our borders and undermine people smuggling networks".

The two countries will now work together on plans to establish the detention centre, however many of the details are still unclear, including how much it will cost and how many people the centre will hold. Mr Bowen said that the centre would take “several weeks” to be reopened but it would happen as soon as possible.

Manus Island is located near the equator, some 400 kilometers north of the Papua New Guinea`s mainland. The detention centre was used by the former government of Prime Minister John Howard until 2004, and became infamous for its appalling conditions. A number of asylum- seekers detained there attempted suicide in a desperate attempt to draw attention to their plight.

Human rights and refugee groups have criticized plans to reopen the Manus Island detention centre, Amnesty International Australia refugee spokesman Dr Graham Thom has said "in both cases (Malaysia and Papua New Guinea) Australia is outsourcing its humanitarian obligations to developing countries and worsening the trauma of refugees who have fled conflict, persecution and torture."

However, unlike Malaysia, where Australia also intends to send asylum-seekers, Papua New Guinea has signed the UN Refugee Convention.

Mr Bowen said that the signing of the memorandum of understanding commits both governments to treating detainees with dignity and respect in accordance with the United Nations convention on refugees, processing them as quickly as possible and at no cost to the Papua New Guinean government.

Australian treasurer Wayne Swan said the government was determined to break the people smuggling business model. "The message to the people smugglers and to all of those considering coming is that if they come here, they will be processed in another country.”

The signing of the document happened on the same day another boat of 71 asylum seekers was intercepted off the coast of Christmas Island.

Australia makes another regional asylum-seeker deal

Papua New Guinea Prime Minister Peter O'Neill confirmed that he has approved the re-opening of the Manus Island detention centre to accept asylum seekers from Australia.

Prime Minister Peter O'Neill says that the centre will be managed and paid for by the Australian Government. He says that the details of the arrangement, such as how many people will be sent to the island, are yet to be finalized. It is up to the Australian Government to determine how soon the centre can open.

Immigration Minister Chris Bowen says it will be at least several weeks before asylum seekers can be sent to Manus Island as facilities need to be upgraded.

The government has been under pressure to find a second regional offshore processing point, especially as the arrangement with Kuala Lumpur is limited to 800 asylum seekers and the High Court has challenged whether unaccompanied minors can be sent to the Malaysian country as it has not signed the UN convention to protect the rights of refugees.

Prime Minister Julia Gillard says a memorandum of understanding will soon be signed on the Manus Island centre. Earlier she said the Government's Malaysian solution would continue despite Papua New Guinea's offer to house asylum seekers.

"We're determined to deliver the Malaysia arrangement and that is before the High Court now," she said.

Mr. Bowen says the arrangement to send asylum seekers to Manus Island for processing will complement the government's refugee swap deal with Malaysia.

He also gave a message for those asylum seekers who are thinking of coming to Australia: "You may be sent to Malaysia or Papua New Guinea, but you're not going to be processed in Australia.”

Two more boats arrive to Australia since signing Malaysian deal

Another two boats have arrived to Australia this week since the signing of a deal between Australia and Malaysia to swap 800 asylum-seekers that come to Australia illegally by boat for 4,000 genuine refugees waiting in Malaysia for resettlement.

One boat was carrying 100 asylum-seekers. This group was made up of 31 unaccompanied minors, 60 single adult males, and family groups including women and children. One of the women was wearing a full burqa and it is believed that those on board are from Afghanistan, Iraq and Pakistan.

Asylum seekers were taken to the processing centre on Christmas Island, where a mother hugged her toddler and smiled widely, as did the other women in the group. The smiles did not last long though as Australian officials soon told them that the $55,000 they gave to people smugglers to get to Australia was wasted and they would be sent to Malaysia.

The other boat arrived a few days later carrying about 62 asylum seekers. This brings the total number of asylum seekers to be sent to Malaysia to 269.

The transfer of the 269 asylum-seekers to Malaysia has been delayed until the Australian High Court can complete an investigation into the lawfulness of the agreement. At the heart of the matter is the transfer of 44 unaccompanied minors. The court will determine whether the Australian government can legally send unaccompanied minors to Malaysia, a country that has not signed the UN Convention protecting the rights of refugees. The court case will be heard the week of 22 August.

The Australian government fears that the delay in sending asylum-seekers to Malaysia will be exploited by people smugglers and more boats will arrive to the harm of the asylum-seekers who will spend all their money only to be sent to Malaysia.

Australian High Court delays transfer of asylum seekers

The transfer of the first 16 male asylum seekers due to be sent to Kuala Lumpur under Australia's swap deal with Malaysia has been delayed by the Australian High Court.

The High Court prevented the Australian government from transferring asylum-seekers to Malaysia on Monday morning, until the Court can determine how to implement the agreement lawfully and with respect to the rights of the asylum-seekers.

Refugee advocates argue that Malaysia, which has not signed the UN refugee convention, has a record of mistreating asylum-seekers and refugees. Refugee lawyer David Manne says his clients are "distressed and fearful" about facing persecution in Malaysia and want to remain in Australia.

Mr Manne said the main question for the High Court is whether Malaysia is the best country for people to be sent to. Particularly when the Government is considering sending unaccompanied children there.

Amnesty International's refugee spokesman Graham Thom says, "This deal is not punishing people smugglers, it is punishing children. The minister as their legal guardian is supposed to act in the best interest of unaccompanied children, not send them to face serious abuse in the slums of Kuala Lumpur."

Australian Immigration Minister Chris Bowen says the Government is prepared for protests and legal challenges but remains determined to see all the asylum-seekers sent to Malaysia, despite the High Court delaying the transfer.

Mr Bowen said he believed the Government was on “very strong legal grounds” with the policy and hoped that the delay would not give people smugglers time to distort the truth and tell asylum-seekers that they will not be sent to Malaysia.

"One of our arguments to the High Court is that people smugglers will spin this and lie about this and say this is some sort of green light. It's not," he said.

“Stopping people smugglers from selling the journey to Australia on leaky boats like the one which smashed against the rocks at Christmas Island last December remains important. I'm confident that when the High Court considers the case, the transfer will occur and the arrangement will be implemented.” He said.

A decision will be made by the Australian High Court in the next few weeks.