Wednesday, 31 August 2011

Australia Court Rules Against Asylum Plan


SYDNEY—The Australian High Court ruled Wednesday that Australia cannot send asylum seekers to Malaysia, effectively blocking a recent agreement between the two countries and dealing a major blow to the government of Australian Prime Minister Julia Gillard.
The agreement called for a swap of 800 asylum seekers who had reached Australian territory for 4,000 people who have won United Nations refugee status and are currently in Malaysia. The deal has drawn much criticism from human-rights advocates, who note that Malaysia isn't a signatory to the United Nations refugee convention.
Tracey Nearmy/European Pressphoto Agency
Above and below, a protest in Sydney earlier this month against Australia's plan to swap asylum seekers with Malaysia; the High Court declared the plan invalid Wednesday.
Tracey Nearmy/European Pressphoto Agency
At the core of the court ruling was a finding that because the deal between the nations isn't legally binding, there is little scope to require Malaysia to uphold human-rights standards.
"The High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims," the court said in a majority ruling.
The issue of refugees seeking asylum is a vexing one for Australian politicians, and the high-court judgment will pile pressure on Ms. Gillard to find an alternative to what's been dubbed the Malaysia solution. The center-right opposition Liberal Party, saying the government is too soft on border protection, has urged a policy of turning back smugglers ferrying refugees to Australia instead of pressing ahead with a swap arrangement with Malaysia.
The Liberal Party was swift to react to the court decision. It called on the government to reach a deal on processing asylum seekers with the Pacific island nation of Nauru, which is a signatory to the refugee convention—though some analysts say the court ruling could preclude any offshore processing.
Party immigration spokesman Scott Morrison said of the Malaysia plan, "This was an arrangement cobbled together by this government and they failed to think it through." Immigration Minister Chris Bowen called the ruling "profoundly disappointing" but said the government would seek legal advice as it considers its options.
"While this is a blow, it does not undermine our resolve to break the people-smugglers' business model," he said.
In Malaysia, the government said it still believes the swap agreement "is the best way to tackle the menace of people traffickers" while protecting the interests of the two countries and "above all" the immigrants, and that it will work with Australia to determine the best course of action. But activists welcomed the ruling.
"This decision is very important and very appropriate in the protection of the rights of the refugees," said Irene Fernandez, executive director of Malaysian women's-rights group Tenaganita. "Malaysia does not have procedures, Malaysia does not have laws to protect the rights of refugees."
Mohd Rasfan/Agence France-Presse/Getty Images
Refugees from Myanmar in Kuala Lumpur
To be sure, Australia attracts only a small fraction of the world's migrant refugees, with 8,250 applicants out of a global total of 358,000 last year, according to the U.N. More than 90,000 asylum seekers in Malaysia await U.N. refugee certification, and the deal would have increased Australia's annual humanitarian intake to 14,750 places.
Asylum seekers in Australia are often called "boat people," a term first used in the 1970s for those fleeing Vietnam. The number arriving in Australia has fluctuated greatly since then. Last year, 134 unauthorized boats arrived carrying a total of 6,879 people including crew, according to government estimates. That was up from seven boats carrying 179 people in 2008.
By contrast, half a million people are estimated to arrive illegally in the U.S. each year. And political unrest in North Africa has spurred a surge in the number of people seeking refuge in Spain and Italy. In Europe, the subject of refugees has only become more fraught in the past decade, since the French government in 2002 closed its Sangatte holding camp near Calais, following riots and a surge in the smuggling of people from there into the U.K.
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Australia's arrivals numbers began to increase after then-Prime Minister Kevin Rudd eased the offshore-detention policy implemented by his predecessor John Howard—a policy credited with helping Mr. Howard's center-right government win office.
Under terms of the original deal signed in Kuala Lumpur in July, Australia had planned over a four-year period to allow entry to 4,000 refugees approved by the U.N. High Commissioner for Refugees and send to Malaysia 800 asylum seekers who had reached a holding center on Christmas Island off Australia's northern coast by boat. The deal would have cost an estimated 296 million Australian dollars (US$321 million) to implement.
"The ruling sinks the government's Malaysia plan," said Greg Weeks, a law lecturer at the University of New South Wales.
—Celine Fernandez in Kuala Lumpur contributed to this article.
Correction
Malaysia is not a signatory to the 1951 Refugee Convention. An earlier version of this article incorrectly said it was not a signatory to the United Nations Convention on Human Rights.
Write to Enda Curran at enda.curran@dowjones.com