1) The country must be legally bound by international law or its own domestic law to:
2) provide access for asylum seekers to effective procedures for assessing their need for protection;
3) 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, .... that the country meet certain human rights standards in providing that protection.
It is time for Malaysia to enact laws for the recognition of refugees and asylum seekers - in which there would also be clear provisions how Malaysia will deal with people who come to Malaysia claiming refugee status...or political/social/economic/... asylum status.
Better still if Malaysia could ratify the UN Declaration and related conventions on refugees, maybe even migrant workers and their families - but Malaysia, really is not likely to do this - so the very least that Malaysia should do is to have its own laws to deal with refugees/asylum seekers...
No deal: High Court kills off Malaysian asylum seeker plan
- From: news.com.au
- August 31, 2011
It also could spell the end of its plans to set up any off-shore processing of refugee applications.
The Full Bench, in an expedited judgment, found by six to one that Malaysia was not bound to look after the human rights of the 400 asylum seekers now under Australian care.
It found Immigration Minister Chris Bowen could not declare Malaysia to be a country where people could be sent to be processed as refugees.
The court ruled that no country could receive asylum seekers from Australia unless it was legally bound by international law or its own domestic law to provide access for asylum seekers to protection pending processing of their applications for refugee status.
Malaysia is not a signatory of the United Nations conventions on refugees.
“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,'' said a statement from the court.
“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 matter came before the nation's superior court after an application made on behalf of a 16-year-old boy and a 24-year-old Afghan man who, their lawyer said, were petrified with fear about being sent to Malaysia.
The High Court spent a day-and-a-half considering the issue before reserving its ruling until today.
One issue raised by the legal team for the detainees on Christmas Island was the ability of Australia to guarantee the human rights of the 800 asylum seekers sent to Malaysia.
Commonwealth Solicitor-General Steven Gagler told the court the agreement and declaration of Malaysia as a suitable destination was legal and met the obligations Australia has under the UN refugee convention.
Liberal immigration spokesman Scott Morrison said before the ruling was handed down that a victory for the Government would not mean endorsement of the merits of the swap deal.
“If the Government is successful today in the High Court then that would basically just be an acknowledgment by the court that the minister has the power to make this decision,'' Mr Morrison told ABC Radio.
“It won't be any reflection of whether it's a good policy or a bad policy or whether it's a policy that provides protection to refugees. It will simply be a decision by the court about the minister's powers under the act."
Read more: http://www.news.com.au/national/high-court-rules-malaysian-swap-deal-unlawful/story-e6frfkvr-1226126528979#ixzz1WbDkdVmW
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.