High Court stops Australia from sending asylum-seekers to Malaysia

The High Court ruling on Wednesday 31 August 2011 prevents the Australian government from transferring 800 asylum-seekers to Malaysia under the swap deal it signed last month.

The plan to send asylum-seekers to Malaysia was a part of Australia's regional response to stop thousands of boat people who arrive in Australia every year.

The High Court ruled by a majority of six to one that the Immigration Minister could not send asylum-seekers to any country that was not "legally bound by international or domestic law to provide access for asylum-seekers to effective procedures for assessing their need for protection".

The court said in a statement that Malaysia has not signed the UN Refugee Convention and that there was no guarantee that refugees would be recognized and protected under Malaysia’s domestic law.

The Immigration Minister Chris Bowen called the high court ruling "profoundly disappointing".

Bowen said the government's plans to send asylum-seekers to Malaysia for processing had acted as a deterrent to those thinking of making the dangerous journey to Australia.

Many have died on that journey, including dozens who drowned last December when their boat smashed on rocks on the island in heavy seas.

Mr. Bowen said: "We've had the people smugglers in retreat. Now, today's decision is a significant blow, but it does not undermine my or the government's determination to break the people smugglers' model."

The case was brought to court on behalf of 16 asylum-seekers who were a part of the first group of asylum-seekers to be sent to Malaysia. The lawyer acting for them, David Manne, said his clients were very relieved.

For now, the 335 asylum-seekers who arrived to Australia since the Malaysian deal was signed will remain in detention on Christmas Island but it is unclear whether they will be processed in Australia or elsewhere.

The Australian government is still considering other countries for its regional approach and it recently signed an agreement with Papua New Guinea to reopen the Manus Island detention facility there.