In a 6-1 decision, the court said Malaysia did not have laws in place to ensure the safety of asylum seekers.
Authorities will also not be allowed to send unaccompanied children away from Australia without the written consent of Immigration Minister Chris Bowen.
The Malaysian deal was made not by amending the Migration Act but by a declaration by Mr Bowen made under his ministerial powers.
But the High Court found that Malaysia was not legally bound to protect the asylum seekers under the Act, which therefore makes the declaration invalid.
“Malaysia is not a party to the Refugees Convention or its protocol,” the High Court said in a statement.
The four-year asylum swap deal, in which Malaysia would take 800 asylum seekers from Christmas Island in return for Australia accepting 4,000 refugees from Malaysia, was signed more than a month ago but almost immediately challenged by human rights lawyers.
- Australia agrees to resettle 4,000 refugees from Malaysia in return for sending 800 asylum seekers there
- Malaysia agrees to treat asylum seekers ‘in accordance with human rights standards’
- Critics note Malaysia has not signed the UN Refugee Convention
- Australia to pay for health care, education and special welfare needs for asylum seekers in Malaysia for at least four years
- No blanket exceptions for children, even those who are unaccompanied, but decisions to be made on case-by-case basis
- The UN High Commissioner for Refugees, though not a signatory to the agreement, to help facilitate it
- AFP officers given permission to use force to make asylum seekers comply with their relocation
- Deal budgeted to cost $292 million, with $216 million of that covering cost of resettling refugees in Australia
Since then a temporary injunction had put the transfer of asylum seekers on hold – and now the High Court has declared the injunction permanent.
But it means it is likely Australia will still have to accept the 4,000 genuine refugees from Malaysia.
Mr Bowen said the decision was “profoundly disappointing”, raising questions over not just the Malaysian deal but the practice of offshore processing.
He defended the Government’s understanding of the immigration laws, saying the High Court “applied a new test to how protections should be demonstrated”.
“We respect the decision, but it is clearly a new test that had not been read into the Act.”
He also stood by the Malaysian deal, saying the news would embolden people smugglers.
“I think you can expect people smugglers to be capitalising on this arrangement and to say ‘You can come to Australia now because the agreement has been ruled invalid by the High Court’.”
Constitutional expert Professor Don Rothwell says it is “in the scope of the minister to re-issue a declaration” consistent with the reasoning of the court.
But it appears any new declaration would be doomed to fail unless Malaysia signed the United Nations Refugee Convention and its protocols.
In addition, should the Government try to amend the Migration Act to legalise the Malaysian deal, it would be blocked in the Senate by the Greens.
Professor Rothwell says the High Court’s judgment applies equally to Manus Island or Nauru, throwing into doubt not only the Government’s bid to reopen the Manus Island facility but also the legal basis of the Howard government’s Pacific solution.
He says the Government can revert to the on-shore processing system which is legal under the Migration Act.
“We could expect the Government will revert to the pre-Malaysian solution situation.
“It does very much indicate that any solution the Government is trying to achieve by way of offshore processing is called into doubt for the moment.”
The High Court statement said of third-country processing that 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;
- the country [must] meet certain human rights standards in providing that protection.
“They can only be taken to a country validly declared… to be a country that provides the access and the protections and meets the standards described above,” the High Court statement said.
ABC reporter Jane Norman who is on Christmas Island says clapping and cheering has been heard from inside the detention centre there.
A spokesman for Malaysia’s home affairs minister says the decision has come as a surprise and the government is waiting for details to see if the deal can be changed to make it legal.
Opposition immigration spokesman Scott Morrison described the judgment as “another policy failure by an incompetent government”.
“I’ve been to Malaysia. I’ve seen the conditions under which asylum seekers would be living, and it was clear to me that the protections the Minister boldly claimed existed simply didn’t exist,” Mr Morrison said.
“The Minister should have know that. He’s been found out by the High Court, and as a result the Government’s asylum and border policy is a complete and utter mess.”
Greens Senator Sarah Hanson-Young says the decision vindicates her party’s position on the deal.
“We knew when the Malaysian solution was first announced by the Government that it was wrong,” Senator Hanson-Young said.
“The big question was whether it was actually legal, and the decision today from the court not only is this harmful for children, not only is this expensive, but it’s now illegal.”
The refugee lawyer behind the legal challenge, David Manne, says his clients are very relieved.
“These people came here in fear for their lives and were very fearful of being sent to Malaysia. They feared they would be harmed,” Mr Manne said.
“The court has now ruled it would be unlawful to expel them to that type of situation.”