Australian High Court blocks Malaysia refugee swap

Australia's High Court dealt a heavy blow to the government Wednesday by blocking its plans to send asylum-seekers to Malaysia, ruling they could not go to a nation lacking legal safeguards. Australia had hoped to send up to 800 asylum-seekers to the Asian nation in exchange for resettling 4,000 of its refugees, and the ruling leaves hundreds of boat people in legal limbo. The High Court found that under Australian law the government could not send asylum-seekers to be processed in another country unless that country was bound to adequately protect them. "The country must be legally bound by international law or its own domestic law to... provide protection for asylum seekers pending determination of their refugee status," it said in a summary of the judgment. "In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection." The so-called Malaysia Solution was part of Australia's regional response to halting the flow of thousands of boat people who arrive on its shores each year. It may also send some to impoverished Papua New Guinea. Human rights groups had criticised the Malaysia deal, saying traumatised asylum-seekers would be left vulnerable in a country without proper protections for its more than 90,000 refugees. Lawyers for the two Afghan men at the centre of the High Court case had argued that the deal breached Australia's duties towards asylum-seekers because Malaysia is not a signatory to the UN convention on refugees. The High Court sided with them in a majority ruling. It also decided that an unaccompanied minor seeking asylum could not be lawfully removed from Australia without the written consent of the immigration minister. The court said that in deciding the matter, it expressed no view about whether Malaysia met relevant human rights standards or whether refugees in that country were treated fairly. "The court's decision was based upon the criteria which the (immigration) minister must apply before he could make a declaration," it said. Australian National University law expert Don Rothwell said the fact that Malaysia had not signed the UN Refugee Convention was likely "a key factor" in the ruling, which cannot be appealed. "No one can be sent to Malaysia at the moment," Rothwell told reporters, adding that the decision cast doubt on the ability of the government to send unaccompanied minors to other countries for processing. "The court is certainly indicating that the minister needs to take into account ... questions with respect to the human rights and protection of asylum-seekers who may be relocated to another country," he said. Canberra unveiled its new strategy in May, promising that all maritime arrivals would be processed offshore with the first 800 to go to Malaysia. Rights groups immediately criticised the deal, accusing Australia of not meeting its legal obligations to refugees and risking the health and safety of vulnerable people, including children. Australian governments have long grappled with how to handle boat people, over the years detaining them in desert centres, on the tiny Pacific island nation of Nauru and on the remote Indian Ocean territory of Christmas Island. In 2010, arrivals peaked at close to 7,000, but far fewer than half that number have arrived in Australian waters so far this year.