Australian Court Overturns Gillard Plan to Send Asylum Seekers to Malaysia

Australia’s top court ruled the government can’t send illegal immigrants who arrive by boat to Malaysia, in a setback to Prime Minister Julia Gillard’s refugee policy.

The government’s plan doesn’t meet the necessary criteria for dealing with refugees, including providing adequate protection for asylum seekers under international or domestic law, the High Court of Australia said in a unanimous ruling by the seven-judge panel issued in Canberra today.

Gillard, rebuked by opposition leader Tony Abbott for failing to stem the flow of boat people into the country, sought to quell the criticism with the Malaysia agreement that she said would “smash the business model of people smugglers.” The court ruling comes as the prime minister, whose approval rating slumped to 33 percent in a July poll, is trying to implement an unpopular carbon tax.

“They should be provided with basic survival and dignity rights including rights to property, work and access to a social safety net,” the judges said, referring to the refugees. “They should be provided with documentation and be given access to national courts to enforce their rights.”

Under the agreement, signed July 25, Australia would send 800 asylum seekers to Malaysia and would accept 4,000 people from that country who have been verified as legitimate refugees by the United Nations. Australia currently processes asylum seekers at Christmas Island, between Indonesia and Australia’s west coast.

Sending a Message

“All the Malaysian deal achieves is shifting Australia’s international humanitarian obligations offshore,” the group Asylum Seekers Christmas Island said in an Aug. 4 statement. The group called the plan “ethically abhorrent, legally questionable and practically unsustainable.”

Tengku Sariffuddin Tengku Ahmad, the press secretary of Malaysian Prime Minister Najib Razak, declined to comment on the ruling when reached by phone.

"We need to digest the decision," he said. Government offices are closed today for a holiday celebrating independence from colonial British rule.

The Malaysian agreement is designed to send a message that asylum seekers shouldn’t risk their lives in the hope of having their claims processed in Australia, and instead will end up at the back of the line in Malaysia, Gillard said prior to signing the agreement last month.

Malaysia hosts about 90,000 refugees and asylum seekers, and there are are 10.4 million refugees in the world, according to the United Nations Refugee Agency.

Human Rights

Asylum seekers, the Australian Human Rights Commission and non-governmental advocacy groups have said the proposed swap violates Australia’s constitution and international agreements on refugees and human rights.

In its decision, the High Court also barred the government from expelling children under the age of 18 without the written consent of the Minister of Immigration.

Sayed-Navab Shah, who sued the government to block his deportation to Malaysia, broke Malaysian law by illegally entering the country and as a result faces punishment that includes six strokes of the cane, his lawyers said in documents filed with the High Court.

Malaysia isn’t a party to the UN’s 1951 refugee convention and doesn’t provide for protection of asylum seekers, according to Shah’s filing.

The court said it wasn’t expressing an opinion about whether Malaysia meets relevant human rights standards in dealing with asylum seekers.

‘Mad Max’

Michael Chaney, chairman of National Australia Bank Ltd. (NAB), and George Miller, maker of the film “Mad Max,” were among 34 prominent Australians who endorsed a study by the Center for Policy Development that was critical of the Australian government’s refugee policy.

The report recommended boosting refugee quotas to 20,000, phasing out mandatory detention within two years and ending mandatory detention of children by the end of this year. Chaney declined to comment on his endorsement of the study.

Denmark, Finland, Iceland, Norway and Sweden, with a combined population of about 25 million, comparable to Australia’s 22.5 million, received and processed 51,250 asylum claims in 2009, according to the CPD report. Australia received and processed 6,500 asylum claims in the same year. The country has a quota of accepting 13,750 people under its humanitarian program this year, including 6,000 refugees.

Since 1906, Australian courts have recognized that under the constitution it was legal to deport “an alien to a place other than the state from which the alien came,” the government argued before the High Court.

No Obligation

Australia was the sixth country to ratify the UN Convention relating to the Status of Refugees, the government said.

“The removal of a person who claims to be a refugee to a third country is entirely consistent with that obligation, even if that third country is not a party to the convention,” the government argued.

The convention doesn’t impose an obligation to “assess” protection claims, according to the government.

Ahead of the election in August last year, Abbott campaigned against Gillard with a pledge to halt the boats and people smuggling. Gillard’s Labor Party had 29 percent support compared with 47 percent for the Abbott-led Liberal-National coalition in a July 22-24 poll.

Christmas Island

The refugee debate reignited in December when a wooden boat crammed with as many as 90 people seeking to reach Australia crashed in heavy seas against the cliffs of Christmas Island. As many as 50 people were killed.

"We know that people in desperate situations, fleeing conflict and violence, may resort to desperate measures to reach a ‘safe’ country," Claudia Tazreiter, a senior lecturer at University of New South Wales’s School of Social Sciences and International Studies, said in an e-mail before today’s ruling. It’s unlikely "such a ‘refugee swap deal’ would deter people smugglers."

The case is Between Sayed-Navab Shah and Minister for Immigration and Citizenship. M70/2011. High Court of Australia (Melbourne).

To contact the reporters on this story: Joe Schneider in Sydney at jschneider5@bloomberg.net; Gemma Daley in Canberra at gdaley@bloomberg.net;

To contact the editors responsible for this story: Douglas Wong at dwong19@bloomberg.net.