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 4-year-old son, a lawyer said Friday.
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.
But his wife and child have arrived since May 7, when the government announced that all new boat arrivals will be sent to Malaysia, Papua New Guinea or a third country for their refugee applications to be processed. Almost 300 asylum seekers who have arrived since that date are similarly in limbo.
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 U.N. Convention on Refugees and has been criticized for treating refugees harshly.
The aim is to deter asylum seekers from coming to Australia by sending them to Malaysia, the country where most started their boat journey. The deal, which has yet to be completed, is expected to require Malaysia to safeguard the 800 asylum seekers from the brutal treatment other refugees complain of.
Manne said he had lodged a challenge to the Australian policy on Thursday in the High Court on behalf of the woman and child after the Immigration Department rejected their application to be reunited with their husband and father. The woman and child have been held since May 16 in a detention camp on Christmas Island, an Australian territory closer to Indonesia than to mainland Australia.
"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 it's widely known that refugees are at risk of harm," Manne told The Associated Press.
Australian and international law recognizes that if one family member is a refugee, other family members are assumed to be refugees who should be protected and kept together, he said.
The High Court next week will set a hearing date. Manne said a court victory could have broader ramifications for other asylum seekers, but he declined to speculate on what they could be.
Immigration Minister Chris Bowen said he is confident the policy will stand up to any court challenge. He told Australian Broadcasting Corp. radio that the policy would fail to deter asylum seekers if the government allowed "blanket exemptions" to reunite families.
"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.
Prime Minister Julia Gillard said Thursday her government will forge ahead with the Malaysian deal despite the Australian parliament condemning the policy in a rare vote.
Malaysian Home Minister Hishammuddin Hussein said Friday that talks remained on track, but declined to provide details or say when the deal might be finalized.
"I'm confident in the level of trust and political will of both countries," Hishammuddin told reporters in Malaysia. "Both prime ministers wouldn't have agreed to (announce the deal) unless they knew it is something doable. That requires a lot of courage."
Australia is also in talks with Papua New Guinea about opening an immigration detention camp there as a fallback measure.
Associated Press writer Sean Yoong contributed to this report from Kuala Lumpur, Malaysia.