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Australia in the dock over refugee swap

An Australian lawyer has won a dramatic high court injunction over a controversial deal signed by the Gillard administration that will see refugees deported to camps in Malaysia.

Lawyer David Manne from the Refugee & Immigration Legal Centre (RILC) brought an injunction late on Sunday night, thereby temporarily suspending the deportation of 16 refugees due on Monday.

The injunction was successful and will be seen by the high court today. Manne highlighted two primary issues, the first being a declaration that Australia’s immigration minister, Chris Bowen, had tried to enact which would prevent the high court from reviewing human rights issues concerned with the deal.

The second focussed on the fact that unaccompanied minors are due to be deported and that under Australia’s Migrant Act, the immigration minister is the legal guardian of refugees who are in state custody without a parent or guardian. The UN convention on child rights states that the legal guardian must act in the best interests of their dependent.

Gillard however refused to rule out the deportation of children, despite UNICEF’s Norman Gillespie telling ABC that, “We would be extremely concerned if any unaccompanied minor would indeed be deported in such a way.”

Malaysia’s camps have often been criticised as far from model facilities, with beatings allegedly endemic, and food and sanitation of a poor standard.

Manne told Australia’s Herald Sun newspaper that “Malaysia has a long-standing record of very serious mistreatment of asylum seekers and refugees including …  beatings, whippings, canings and even deportation.”

Malaysia is not signatory to either the UN’s refugee convention or torture convention, and thus is not bound by international law surrounding the treatment of refugees – something critics have said makes Australia’s policy even more concerning.

Bowen however has remained resolute on the deal. “This is an interim injunction; this is not a finding; this is not a legal outcome,” he told ABC of the injunction. “This is a decision that a case should be heard and a transfer should not occur while that case is being heard.”

“This does not indicate in any way the outcome of the case.”

Australia receives relatively small numbers of asylum claims: last year 8,250 applied, accounting for only two percent of global applications in 2010, compared to 55,530 in the US.

Of these only a small number arrive by boat, but ‘boatpeople’ have transfixed the Australian political debate, with both main parties focusing heavily on migrations they view as illegal. As a result Australia holds asylum seekers, as well as sex-offenders, indefinitely; whilst sex offenders face charges, asylum seekers do not.

The UN High Commissioner for Human Rights Navi Pillay, has also criticised the agreement and said that it may be in breach of international law.

The swap deal will see 4,000 mainly Burmese refugees who have been processed by the UN’s refugee agency in Malaysia sent to Australia. Thirteen men and women from the Chin minority group in northwestern Burma arrived in Australia yesterday.

While Australia is a popular destination for Burmese asylum seekers owing to its relative proximity, UN signatory status and affluence, Malaysia does not carry the same reputation. The process of registering refugees there has been tainted by alleged corruption and even ethnic bias, with one scam seeing applicants allegedly paying “membership fees” to Burmese community groups to be recommended to the UN High Commissioner for Refugees.


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