Malaysia solution breaks Australian law, says refugee lawyer

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By Jay Fletcher

Immigration minister Chris Bowen (right) with Malaysia's home affairs minister Hishammuddin Hussein.
Immigration minister Chris Bowen (right) with Malaysia's home affairs minister Hishammuddin Hussein.

About 200 people have arrived on boats to claim refugee protection in Australia since the Australian and Malaysian governments signed a deal to “swap” refugees on July 25. The countries agreed to exchange up to 800 refugees in Australia for 4000 refugees registered with the United Nations in Malaysia.

The immigration department has refused to look at the new arrivals’ claims for asylum, but is holding them in an isolated compound of the Christmas Island detention centre. A boat that arrived on August 11 carried more than 100 refugees, many of them children.

Refugee advocates said the first group of Afghan and Iraqi asylum seekers went on hunger strike when they were told of plans to deport them. Cases of self-harm have also been reported.

The Sydney Refugee Action Collective said a 17-year-old woman “poisoned herself by drinking the contents of medicine and other bottles in the medical centre. She is now in hospital, along with her 7 year-old brother.”

David Manne is a refugee lawyer who in 2010 won refugees the right to access Australia’s court system and now represents 42 people that face deportation to Malaysia.

He told Green Left Weekly the refugees are “in extremely difficult circumstances, highly distressed, petrified of being expelled to Malaysia. They have very strong fears of facing mistreatment.”

Manne and a team of lawyers won a temporary reprieve for the refugees on August 7. A High Court judge ordered a 24-hour injunction to stop the immigration department’s plans to expel 16 single adult men to Malaysia the next day.

The injunction was later extended to August 22.

Immigration minister Chris Bowen said on May 7 that the government had expected “resistance, protest and legal challenge” to the deal but “nobody should doubt our resolve”.

Manne said the refugees he is representing want the immigration minister’s claim that they will be protected in Malaysia scrutinised.

GLW’s Jay Fletcher asked Manne about the High Court case against the “Malaysia solution”.

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The immigration minister has used a section of the Migration Act, added by the former Howard government, to unilaterally declare Malaysia safe for refugees. Yet he is the legal guardian to unaccompanied underage asylum seekers and Australia has a legal obligation to hear refugee claims. What’s the significance of the injunction on the deportations until a full bench hearing on August 22?

The real significance is the High Court found that there are serious legal questions to be argued and determined in relation to the proposal to expel our clients to Malaysia without considering their claims for protection here.

These vulnerable people, who are fleeing from persecution, have asked the court to rule on whether the government has the power under Australian law to expel them to face indeterminate risk in Malaysia.

A key aspect of the legal challenge is the immigration minister’s declaration that Malaysia is a suitable place to expel them to — on the basis that it has adequate procedures, protection and human rights standards.

Part of the case is that such a declaration should be open to review by the court. Does this declaration hold up under judicial review?

Another key aspect of the challenge is the government’s proposal to expel unaccompanied minors. The minister is their legal guardian and has a duty to act in their best interests.

How can it be best to be expelled to Malaysia given the situation?

Given the evidence, there are very significant concerns about inadequate protection and the means to have refugee claims assessed.

The department of foreign affairs has admitted that there may not be guarantees for asylum seekers to have their claims assessed once they are in Malaysia. Routine canings and slum-like conditions are also well documented. Why have these facts not had a stronger bearing on putting a stop to this plan?

A number of things are clear. Malaysia has not signed the UN status on refugees convention or other key human rights treaties, including the convention against torture, or the covenant on civil and political rights.

It has not incorporated any specific protections for asylum seekers into its domestic law. That is, Malaysia doesn’t have laws that recognise refugees’ right to have their claim assessed.

Part of the challenge is that any proposal to expel refugees to this situation would constitute a fundamental abandonment of constitutional responsibilities.

The government has clearly decided to push on with the Malaysian solution and the expulsion of vulnerable people that Australia has an obligation to protect. It’s critical to understand that all our clients are doing is very normal and reasonable.

There are such serious matters at stake. They are very vulnerable people with little protection, they have a right to go to court and check whether the proposal is lawful.

Does the government really have the power to refuse their claims for protection, and instead expel them to Malaysia? All they’re asking for is for the court to check that. Given the gravity of what’s facing them, it’s the reasonable and normal thing to do.

The government plans to go ahead with the “Malaysia solution”, but has also announced plans to reopen the Manus Island detention centre in Papua New Guinea (PNG). It said that together the swap deal and an offshore detention centre will “break the people smugglers’ model”. What are the risks for refugees sent to an offshore place like Manus Island or Nauru?

Any proposal to expel people to another country such as PNG would appear to be a repackaged “Pacific solution”, where the real concern is that Australia is abandoning asylum seekers.

It would involve Australia shirking its obligation to people who come here seeking our protection, by expelling them to a situation where Australia’s protection is denied.

Any offshore plan shirks vulnerable people without allowing them to make a claim for refugee protection here.

Under John Howard, this also caused many innocent, vulnerable people to languish in limbo for prolonged periods, which caused severe harm.

It crushed many vulnerable people, including children, families and many others. It has a devastating effect.

For those subject to the policy, it caused lasting harm to people fleeing from real dangers. There are real concerns about whether there will be adequate safety and a guarantee that refugees’ cases for asylum will be heard.

PNG does not have the capacity to properly assess or protect refugees itself. It cannot assist them. That should be up to Australia.

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