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Why today’s High Court decision is not all that clear cut.


Always go to the source. I can not stress this enough. First though, the result of this decision is a blow to the government, but maybe not as big a blow as expressed on face value.

Yes. The decision for the government is bad in regards to their ‘declaration’, but not, as the human rights group seem to be claiming under the law as such.

From the High Court decision

There was no power to make the declaration of 25 July 2011. Because the declaration is invalid, there is no power to remove the plaintiffs to Malaysia. Any attempt to do so would be unlawful. In the case of Plaintiff M106, his removal from Australia to any country is also unlawful absent the consent of the Minister in his capacity as guardian of Plaintiff M106.


The last part is as important as the first. Applicant M106 the high court insist, can not be removed without the Immigration Ministers consent.

Now why would they do that? Why would they allow this despite ruling Malaysia not a safe place for refugees? Well that is because they have not.

From the two page press release:

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.


The full decision goes further. In the test regarding the fear of safety presented by M106 and his claims re his concerns about Malaysia, the High Court ruled this:

In his interview with the assessing officer, M106 expressed concern about his status as a minor and his belief that refugees in Malaysia were not well treated. Nevertheless, the assessing officer found that M106’s removal to Malaysia would not breach Australia’s non-refoulement obligations. He found that, having regard to the Arrangement, M106 would be treated with dignity and respect and in accordance with human rights standards. As an unaccompanied minor he would be monitored by the UNHCR Children at Risk Team. The officer was satisfied that the Arrangement contained provisions that would provide M106 with a sufficient level of support during the transit period and once he had settled in Malaysia. Nevertheless, the recommendation of the pre-removal assessment team leader was that:
“[T]here are impediment(s) to immediate removal, however removal can proceed subject to the relevant actions being undertaken prior to removal, as outlined above.”
The “relevant actions” referred to the requirement that support services for unaccompanied minors should be in place pursuant to the Arrangement prior to removal to Malaysia.

In other words, this ruling does NOT deem, as some are spinning Malaysia is a bad country OR that the government had not negotiated adequate protection for the asylum seekers that would have been sent to Malaysia. Can this be tweeked?

Again. From the decision.

The criteria for a declaration set out in s 198A(3)(a) are not limited to those things necessary to characterise the declared country as a safe third country. They are statutory criteria, albeit informed by the core obligation of non-refoulement which is a key protection assumed by Australia under the Refugee Convention. Attention must be directed to the statutory language.

This though does seem bad at face value at a time the government could not afford to take a hit. Not sure it can take it. Or another.

A. Ghebranious 2011 (All Rights Reserved)

  1. poh permalink

    The Dill Gillard just needs to put everything back the way she found it. Nauru, TPV and intercept the boats. Ruddock is still in parliament. He still has the book of instruction.
    .. I wonder if Gillard is an Abbott sleeper?

  2. Labor would be very foolish to persevere with this deal.

  3. Catching up permalink

    The Malaysian solution is not dead. It has become complicated.

    I would like to see us go back to basis and start again.

    That is process the people onshore and resettle them as quickly as possible.

    In other words treat them as our legal and moral obligations demand.

    Cheaper, fairer and the country gains new worthwhile and productive citizens as we have done for most of our history.

    It appears that polls say a majority support this action.

    • 1 from me on your comments. The politics has taken priority over the lives and rights of the refugees. Onshore processing needs to be reinstated and our humanitarian obligations need to be fulfilled.

  4. Catching up permalink

    The High Court has said that they are entitled to legal access. Something Mr. Howard manage to do, illegally.

  5. Jennifer Baratta permalink

    WOOOHOOO! now if only that could happen in the USA.
    Way to go HIGH COURT YOU CUT RACISM AND BIGORTY down a notch.

  6. poh permalink

    Nauru here we come. Woooo Hoooo. Now we might get some meaning back into Border Protection.
    Catching Up…. Love your eternal optimism. Malaysia is dead except for cheap fly/stay packages for Australians. Rudd must be thinking why did he stop the TPVs and Nauru in 2008. “…. shit Therese, I should have just left it alone. If it ain’t broke don’t fix it…..” Mind you Rudd would be grinning from ear to ear at Gillard’s terminal Prime Ministership.
    Graham Richardson on Sky/RICHO last night was sending coded signals that the Factions have been sanctioned to take out Gillard. I am surprised she has lasted this long. I was running a book that she would be gone by July. Ash. Are you sure Gillard is not an Abbott sleeper agent?

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