2011-08-31 Australian High Court throws out Malaysian refugee deal.

Ever since John Howard successfully wedged the Australian Labor Party (ALP) over the Tampa incident refusing permission for the Norwegian freighter MV Tampa, carrying 438 rescued Afghans from a distressed fishing vessel in international waters, to enter Australian waters...trigger(ing) an Australian political controversy in the lead up to a federal election, and a diplomatic dispute between Australia and Norway.; the ALP under former Prime Minister Rudd and current PM Gillard have consistently refused to do anything but pander to the Islamophobic element in the Australian polity.

Notwithstanding around some permanent 50,000 illegal overstayers on visitor visas (who not coincidently happen to be predominantly Caucasian), the ALP tries valiantly to outdo the even more obnoxious Liberal National Party coalition whose "dog whistling" on "boat people" who happen to be almost exclusively (of the last decade) Muslims - is legendary.

We will decide who comes to this country and the manner in which they come said John Howard before the November 2001 election. With that, the Convention on Refugees went out the window, and ever since, the ALP instead of using its overwhelming 2007 mandate to educate, has continued to pander to Islamophobic voters.

With the "Malaysian Solution" PM Gillard has followed the LNP suit excepting now, a big slap down from the High Court.

Today the High Court held invalid (pdf) 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. 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 Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth). The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria. 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. In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

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.

On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration. Malaysia is not a party to the Refugees Convention or its Protocol. The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding. The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law. They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees. Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees ("UNHCR") to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so.

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.

• This statement is not intended to be a substitute for the reasons of the High Court or to be used in
any later consideration of the Court’s reasons.

The full judgement.here

This writer has despaired in recent times of our High Court since the time of the judgement of Al Kateb, where it was held that refugees who could not be sent back could be detained indefinitely, and that would not be considered to be punitive but "administrative", however today, I salute the High Court.

Undoubtedly so do those affected by this decision.

It seems to me in a situation

It seems to me in a situation where Australia has a restricted refugee quota, a policy that discourages the comparatively well-off to promote their claims over those who cannot afford to pay for people smugglers and support themselves for considerable periods of time in SE Asia is rational and equitable.

For every person who would have lost under this new policy there is another person who would have gained - and a further small but significant number who would not have drowned.

I don't think we can ever pretend to a policy that would select the "most deserving" - even assuming there was such a class of refugees - but I do believe that by preventing boat arrivals we would eliminate some who are probably working the system.

You have some point as usual rabbit

However, there are dangers. Often in the pursuit of rationality, we can loose our humanity. As a child of immigrants, I tend to favour migration to better circumstances, but I also dislike the que jumping aspects of an abused refugee system.

This world has huge amounts of people who have every right to refugee status but are never seen and have no possiblity of migrating because of financial constraints.

The UN refugee settlements have done little to address the problem. They simply wharehouse displaced persons and maintain them indefinitly in poor circumstances at the lowest possible cost and with little security. There is little effort at repaitriation or development.

As for the internationally traveling refugee claimants the cost of monitoring and verifying claims is a huge burden for the nations targeted.

Since for the majority of the international claimants, personal security is the cheif grounds for claim, then that should be the basis for services offered. There are no justifications for refugee claimants assuming full citizenship benifits merely because they had the money to travel to the target country and hire a good lawyer. Perhaps if the refugee claimant were required to earn entry to another country by performing five years of service for that country without personal benifit there might be a different view of refugee status. Both by the citizens of that country and by prospective refugee claimants.

By Western standards that might sound harsh, but if one's life and body were threatened, it would not be a bad bargain.

It would appear that every country has their own Fear Inc.

Fear Inc.
..is a lot bigger than just Islamophobia. Fear Inc. is the personification of the evil agenda infecting the entire world. Fear Inc. is a planned program of division and of externalizing every possible threat. By ‘discovering’ threats in anything which is different The Enemies of Humanity create a climate of paranoia and a xenophobic mindset. It is simply not credible to identify Islam as the major threat in the world, but that does not bother these manipulators promoting islamophobia. Even if some of these people were not fundamentalist Christians and Jews, they would still readily identify Muslims as the boogeyman, simply because the ‘them and us’ dichotomy is a proven strategy for justifying nearly any actions by leaders. Our inability to compromise makes it easy for ‘them’. By the use of propaganda and the manufacture of evidence, it is possible to implant ‘ideas’ into people’s brains. Once we have accepted these “Ideas” as our own, we will fight and kill and die, to protect them. Remember what happened to those who held to their beliefs during the Inquisition. Things have changed less than we believe, mankind has not evolved in 500 years.

The success of Fear Inc. is the visible manifestation of a disconnect in human civilization; no matter what level of technical sophistication we achieve, we cannot achieve a more universal distribution of rational thought than any flock of sheep. We will blindly follow a self appointed leader over the edge of countless cliffs, simply for the want of a bit of individuality. At our core, humans are mostly immature children, preferring to be given direction, and longing to return to the security of the womb. We are easy to manipulate. Our fears betray us to whomever shouts “Wolf”, loudly and convincingly enough.

We can be convinced to be afraid of anything. That is not just ‘Chicken Little’ personified. It is a demonstration of total stupidity. Never mind the “Big Fears”, we panic at the mere mention of all manner of little things which might rock our boat. Many people are so afraid of natural foods that they dare not eat anything which does not come out of a ‘corporate approved’ package. Now who would profit from that?? We are afraid of Sunshine??, We dare not drink from a mountain stream. We fear the Yellowstone Super volcano because it erupted 600,000 years ago and is due “any time now”?? Doh!

One of our great fears is an economic downturn to threaten our comfort. Henry Kissinger , (may he rot in hell), was right, most of us are nonproductive “useless eaters” himself at the top of the list. Yet, in spite of doing little which is productive, all Westerners manage to eat and have shelter, we are living in fear of loosing that we have been convinced we cannot survive without. We also fear nature, we fear aging and dying and will spare no effort or indignity to postpone or avoid them. Talk about a Conservative dilemma!

Our fears are being nurtured by those seeking to profit from them.
Until we reject the fear and those entities which promote it, we will be enslaved by fear.

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