30,000 caned in Malaysia, court hears


By Bianca Hall, The Canberra Times

Almost 30,000 foreigners were subjected to brutal canings in Malaysia between 2005 and 2010, the High Court was told this morning.

The court’s full bench is considering a legal challenge to the Federal Government’s plan to send 800 asylum seekers to Malaysia, in return for Australia accepting 4000 refugees registered with the United Nations in that country over four years.

Debbie Mortimer, SC, who is acting for the asylum seekers, told the court that Malaysia, which is not a signatory to the United Nation’s Refugee Convention, did not accord legal protections to the 19,700 asylum seekers and refugees registered with the UN High Commissioner for Refugees in that country.

She said Malaysian authorities “generally” co-operated with the UNHCR, but detainees sent there by Australia would fall under the same category as foreigners and could be subject to detention without trial and the death penalty.

“The political arrangement, unenforceable as it is, is the only thing guaranteeing the way asylum seekers and refugees may be treated in Malaysia,” she said.

The case is being brought against the Federal Government’s so-called Malaysian solution on behalf of two asylum seekers who arrived at Christmas Island by boat on August 4.

The court was told Malaysia holds a list of 56 Islamic “sects” it considers “deviant”. One of the two plaintiffs listed in the case, a 16-year-old Afghan boy who arrived alone, is Shiite, one of the so-called deviant religions.

Mr D Jackson QC, acting for the Australian Human Rights Commission, told the court immigration minister Chris Bowen would be in breach of his obligations to act in the best interests of unaccompanied children, as their official guardian, if the plan went ahead.

The court heard the 16 year old had witnessed refugees being beaten and tortured when he travelled through Malaysia en route to Australia. Because Malaysia is not a signatory to the Refugee Convention, he would face arrest for illegally entering and exiting the country should he go back, the court heard.

Solicitor general Stephen Gageler, acting for the Government, said that under mainstream international law, Australia was obliged to offer protection and that meant not returning people to their home countries.

There was no international law obligation that meant countries had to assess refugee claims within their own borders, he said.

The High Court has placed a temporary injunction preventing the Government from sending any asylum seekers to Malaysia until this matter it is finished.

The court will continue to hear the case this afternoon.