Setback

On Wednesday, Australia's highest court scuppered the government's plans for a refugee swap with Malaysia, dealing a major blow to Prime Minister Julia Gillard who is already trailing behind in the opinion polls.

"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," the High Court said in a summary of the judgment.

Immigration minister Chris Bowen said it was a "profoundly disappointing" decision and added that the cabinet would urgently consider the matter. "This is a significant blow to our efforts to break the people-smugglers' business model."

'Malaysia Solution'

The so-called Malaysia Solution was part of Australia's regional response to put a stop to the flow of thousands of boat people who arrive on its shores every year. The government had planned to send 800 asylum seekers to Malaysia in return for resettling 4,000 Malaysian refugees in Australia.

Prime Minister Gillard hoped the Malaysian deal would deter people smugglers and fight assumptions that her government is "soft" on asylum seekers. Her minority Labor government has been trailing in the opinion polls and struggling to push through a series of controversial policies, including a tax on carbon pollution and mining profits.

However, human rights groups criticized the deal and said that it would leave traumatized asylum seekers vulnerable in a country without proper protections for its more than 90,000 refugees.

Breach of obligations

Lawyers for two Afghans at the center of the High Court case argued that Australia would be breaching its obligations towards asylum seekers by going ahead with the deal since Malaysia is not a signatory to the UN convention on refugees.

The High Court sided with the lawyers and also ruled that unaccompanied minors seeking asylum could not be lawfully removed from Australia without the written consent of the immigration minister.

The lawyers welcomed the ruling, as did the asylum seekers who had been slated to leave Australia. "They were actually petrified about being sent to Malaysia and they are extremely relieved," David Manne, one of the lawyers acting for the two Afghan asylum seekers, told reporters after the ruling.

Human rights groups were also pleased by the verdict. "Amnesty International is delighted that the High Court has prevented this outrageous, politically-motivated scheme from going ahead," said refugee spokesman Dr Graham Thom.

'Slap in the face'

Observers said that the government would have little choice but to look for alternatives. "It's a slap in the face for the Gillard government, it's a huge setback for the Malaysian Solution," Marianne Dickie, an expert on migration law at Australian National University, told Reuters.

Australia has already begun negotiations with Papua New Guinea to re-open the Manus Island Immigration detention center, which was closed in 2004. However, a spokesman for SUARAM, a human rights organization in Malaysia, said that Canberra should not try to reopen it as it would be "outsourcing a responsibility that belongs to Australia."

Some 7000 refugees arrived on Australia's shores in 2010. Many of them were detained at a center on Christmas Island in the Indian Ocean.

Author: Anne Thomas (Reuters, AFP)
Editor: Manasi Gopalakrishnan