A government plan to swap refugees with Malaysia will be challenged in Australia’s highest court on the grounds that it will permanently separate a Kurdish refugee from his wife and four-year-old son, a lawyer said yesterday.
The Iraqi-born father, whose name has not been made public in the interests of protecting his family, arrived in Australia in November 2009 and has since been accepted as a refugee, said David Manne, executive director of the Melbourne-based Refugee and Immigration Legal Center.
However, his wife and child arrived after May 7, when the government announced that all new boat arrivals would be sent to Malaysia, Papua New Guinea or a third country for their refugee applications to be processed. About 300 asylum seekers who have arrived since that date are similarly in limbo.
Photo: AFP
Australia wants to send 800 asylum seekers to Malaysia in return for Australia resettling 4,000 registered refugees from among the 93,000 languishing in that Southeast Asian nation, which has not signed the UN Convention on Refugees and has been criticized for their harsh treatment.
The aim is to deter asylum seekers from coming to Australia by sending them to Malaysia, the country where most started their boat journey.
Australia is continuing to negotiate detail of the agreement with Malaysia and is also in talks with Papua New Guinea about opening an immigration detention camp there as a fallback measure.
Manne said he had lodged a challenge to the Australian policy on Thursday in the Australian High Court on behalf of the woman and child after the Australian Immigration Department rejected their application to be reunited with their husband and father. His clients have been held since May 16 in a detention camp on Christmas Island, an Australian territory closer to Indonesia than Australia proper.
“This case is about stopping the government from permanently splitting up a family who are trying to reunite and live together in safety,” Manne said.
“The government proposes forcing the family apart and exposing a wife and child to a precarious and potentially very dangerous position in a place like Malaysia where its widely known that refugees are at risk of harm,” he added.
Australian and international law recognizes if one family is a refugee, other family members are assumed to be refugees who should be protected and kept together, he said.
The High Court will set a hearing date next week. Manne said a court victory could have broader ramifications for other asylum seekers, but declined to speculate on what they could be.
Australian Immigration Minister Chris Bowen said he was confident that the policy would stand up to any court challenge.
“We believe that arrangements with Malaysia are on very, very strong legal grounds indeed,” he said.
He said the policy would fail to deter asylum seekers if the government allowed “blanket exemptions” for people who had family in Australia.
“We can’t enable people smugglers to say: ‘Look, if you have family members already in Australia, you’ll be right. I can get you to Australia,’” Bowen said.
Australian Prime Minister Julia Gillard said on Thursday her government will forge ahead with the Malaysian deal despite the Australian Parliament condemning the policy in a rare vote.
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