High Court rules against Malaysia swap

The federal government's Malaysian people swap deal has been ruled unlawful by the High Court, in a 6-1 judgment.

The majority ordered Immigration Minister Chris Bowen and his department be restrained from sending asylum seekers to Malaysia.

''The declaration made ... was made without power and is invalid,'' Chief Justice French said.

The declaration made by the Minister under section 198A of the Migration Act 1958 was ruled invalid because Malaysia could not, on the facts, meet the requirements specified under the act, namely that it:

(i)  provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and

(ii)  provides protection for persons seeking asylum, pending determination of their refugee status; and

(iii)  provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country....

Malaysia is not a signatory to the Refugee Convention.

The Majority also ruled that a minor could not be deported without the written consent of the Minister (which was not provided), as required under the Immigration (Guardianship of Children) Act 1946.

The government had wanted to send 800 asylum seekers to Malaysia in exchange for 4000 already processed refugees in Malaysia.

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