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Australia High Court blocks Malaysia return plan, re-affirms government responsibility for refugee rights

September 1, 2011

The High Court of Australia has blocked a plan to send asylum-seekers from Australia to Malaysia and issued a re-affirmation that governments, not UNHCR, must take primary responsibility for protecting all refugee rights.

In a 6-1 ruling issued 1 September, the court halted the scheme by which Australia would have sent asylum-seekers to Malaysia to have their applications processed, while Malaysia would send recognized refugees to be resettled in Australia. Australian officials had hoped the swap would deter asylum-seekers from arriving at their shores.

The court found that Australia cannot send asylum-seekers to any country that does not accord refugees their full rights under the 1951 Refugee Convention.  Malaysia is not a party to the Convention and has been accused of detaining refugees in poor conditions and of deporting refugees as recently as 2009. The Malaysian government does not recognize refugee status, and under its laws illegal immigrants are liable to fines, prison and caning.

Malaysia does generally allow asylum-seekers to access UNHCR, which conducts refugee status determination. But the Australia High Court said:

A country does not provide access to effective procedures if, having no obligation to provide the procedures, all that is seen is that it has permitted a body such as UNHCR to undertake that body’s own procedures for assessing the needs for protection of persons seeking asylum.

Before the court decision, rights advocates and some critics in the media had noted weaknesses in UNHCR’s RSD procedures among the problems with the proposed refugee swap with Malaysia. The court avoided these issues.

But the judgment makes clear that mere access to UNHCR does not constitute sufficient refugee protection under international law. Equally important, the court held that all of the rights in the Refugee Convention are important, including the right to work, education, and freedom of movement.

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