Legal challenge to the Malaysian solution

by Jo Coghlan

The Malaysian Solution is not a solution for anyone: especially children. High Court Justice Kenneth Hayne has granted a temporary injunction against the Gillard governments from processing recently arrive asylum seekers to Malaysia under the agreement referred to as the ‘Malaysian solution’.

The Malaysian Solution is an agreement between the governments of Australia and Malaysia that expels from Australia to Malaysia 800 asylum seekers who have arrived in Australia by boat in return for 4000 refugees from Malaysia over the next four years. The arrangement is part of the Regional Cooperation Framework established at the Bali Process Ministerial Conference in 2011. The Gillard government’s rational is that the arrangement: “demonstrates the resolve of Australia and Malaysia to break the people smugglers’ business model, stop them profiting from human misery, and stop people risking their lives at sea.” The cost, to be paid by Australia, is estimated at $216 million plus $76 million to fly the asylum seekers to Malaysia.

The full bench of the High Court will consider the lawfulness of the government’s policy, most probably at a special sitting in the week beginning August 22, a week after parliament returns from the winter recess. It is expected the Opposition will use the injunction to attack the Government on its failure to ‘stop the boats’. The Gillard government announced its’ ‘Malaysian solution’ on 7 May 2011. At every opportunity, and with each boat that arrives, Tony Abbott has continued with the mantra that the ALP can’t ‘stop the boats’.

Abbott is likely correct, the Malaysian solution will probably have little effect on stopping asylum seekers from seeking refuge. However, the High Court injunction rests on two legal matters: the role of the Minister for Immigration and Citizenship Chris Bowen to make “declarations” about the likely protection of asylum seekers expelled from Australia to Malaysia and the Minister’s legal obligations of “guardianship” of unaccompanied children likely to be expelled to Malaysia.

Unaccompanied children

According the QC David Manne of the Refugee and Immigration Legal Centre who is acting on behalf of some of the recently arrived asylum seekers, the Minister for Immigration and Citizenship Chris Bowen is the legal guardian of all unaccompanied minors who arrive in Australia seeking asylum. As a signatory to the UN Convention on the Rights of the Child, as ratified in Australian law in the Immigration Guardianship of Children Act (1946), minors “who arrive in Australian territory unaccompanied, and with the intention of settling in Australia permanently, have the Minister for Immigration and Citizenship as their legal guardian.” Government documents make it very clear that “unaccompanied minors seeking asylum in Australia” come under the Immigration Guardianship of Children Act.

Under these obligations the Minister, at all times, must act in the best interests of the child. Manne argues that expelling unaccompanied minors is not in their best interests. QC Julian Burnside concurs with Manne’s claim saying: “Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.”

Further, as a signatory to the Convention on the Rights of the Child, Australia has international obligations to recognise and protect the rights of children. UNICEF argues that expelling unaccompanied children to Malaysia, who is not a signatory to international human rights conventions is not in the best interests of the child: “as guardians” of the Convention on the rights of the child in Australia, UNICEF have stated that they have “grave reservations” about Australia’s “planned repatriation of children to Malaysia.”

The Gillard government’s position on expelling unaccompanied minors to Malaysia has been that there were to be no exemptions, including children. The Minister for Immigration’s argument is that if children were exempt “people smugglers would exploit that loophole and put children on boats and we'd be dealing with the dangerous situation of boatloads of children.” This is not the case. People smugglers care little about the legal outcome of asylum seekers. Their trade is transport. To punish children for the actions of others is legally and morally indefensible. Moreover, it negates the Minister’s legal obligation to unaccompanied children as their guardian.

The Minister’s rejection of his legal obligations has been twofold: firstly his legal obligations end once the children are expelled; and secondly, that some of those purporting to be under 18, are in fact not. Both arguments are indicative of those used by previous immigration ministers to similarly negate Australia’s legal and moral obligations to asylum seekers. As Mike Skeketee questions: “how can the Minister meet his obligations under Australian law to be the legal guardian of asylum-seeker children and act at all times in their best interests, while at the same sending them to Malaysia.”

Ministerial declarations

The High Court injunction also challenges the Immigration Minister’s claim that a “declaration” of asylum seekers safety in Malaysia is a legal instrument adequate to protect the expelled asylum seekers human rights. Under section 198A(3) of the Migration Act (1958), the Minister has declared Malaysia a suitable country for asylum seekers to make their claims; that Malaysia provides adequate protection to asylum seekers; and that Malaysia meets human rights standards in the protection it provides. Malaysia is not a signatory to the 1951 Refugee Convention. According to the UNHCR there is no legislative or administrative framework in place in Malaysia to protect or process asylum seekers.

The Gillard government’s response has been that the High Court is not empowered to determine Ministerial ‘declarations’. ‘Declarations’ are considered by the Gillard government to be outside of the High Court’s purview.

'Declarations’ in this sense means the Minister has made claims about human rights conditions in Malaysia that are not subjected to interpretations by the High Court because they have not been legislated nor are related to matters pertaining to the Constitution. As refugee advocate Frank Brennan has argued, until the current High Court injunction it was assumed “that the Minister could make such a declaration without any scrutiny by the Parliament or the courts.”

As Manne puts it, the “declaration is about the human rights situation in Malaysia, whether it is sufficient to ensure the human rights of those refugees deported to Malaysia.” In the government’s response to the High Court, this is not a matter on which the Court has power to intervene or rule. The High Court, in granting the injunction, seems to think otherwise.

According to Maria O’Sullivan of Monash University it is likely that the High Court will overturn the Malaysian solution. If the High Court finds that children are exempt from the arrangement because the Minister is not fulfilling his legal obligations as guardian it will undermine the deal. The High Court is also likely to find that the Minister’s ‘declarations’ are problematic because Malaysia is not safe for people to be deported to. More broadly, O’Sullivan questions the overall legality of the Malaysian deal saying third country processing contravenes international law because Australia is refusing to examine the asylum seekers prima facie claims for refuge.

On any of these three criteria, the Malaysian ‘solution’ is not a solution for anyone: especially children.

This article first appeared on Online Opinion.