Archive for September 1, 2011


Those fleeing the ravages of war and persecution are deserving of democracy’s protection. The Malaysia Solution was as illogical and spiteful as demonising the victims of accidents or natural disasters. Actually, perhaps it’s even worse. That victims of war and oppression are burdened by the scorn and intolerance of people in relatively free, wealthy countries is odious.

The High Court has defended and asserted human rights – the interpretOr hopes that we may all search our consciences for a more just and humane solution.

The United Nations Refugee Convention (1951) is publicly available at http://www.unhcr.org/pages/49da0e466.html

An extract from the UN Refugee Convention asserts the human rights of refugees as follows:

“The emphasis of this definition is on the protection of persons from political
or other forms of persecution. A refugee, according to the Convention,
is someone who is unable or unwilling to return to their country of origin
owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion.

The Convention is both a status and rights-based instrument and is underpinned
by a number of fundamental principles, most notably non-discrimination,
non-penalization and non-refoulement. Convention provisions, for
example, are to be applied without discrimination as to race, religion or country
of origin. Developments in international human rights law also reinforce
the principle that the Convention be applied without discrimination as to
sex, age, disability, sexuality, or other prohibited grounds of discrimination.
The Convention further stipulates that, subject to specific exceptions, refugees
should not be penalized for their illegal entry or stay. This recognizes
that the seeking of asylum can require refugees to breach immigration rules.”

          http://www.unhcr.org/pages/49da0e466.html

See also “We knew about the Pacific Solution…Taliban were killing people, we had no choice”

No human being is ‘illegal’. To demonise the defenceless demeans us all.

HIGH COURT OF AUSTRALIA

PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

[2011] HCA 32

Today 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. After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.

The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister’s written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined. They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above. The general powers of removal of “unlawful non-citizens” given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.

On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister

Please direct enquiries to Manager, Public Information Telephone: (02) 6270 6998 Mobile: 0415 144 283 Fax: (02) 6270 6868 Email: enquiries@hcourt.gov.au Website: http://www.hcourt.gov.au

31 August 20112

signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees (“UNHCR”) to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so.

The Court emphasised that, in deciding whether the Minister’s declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately. The Court’s decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

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