"The declaration made ... was made without power and is invalid," Justice French said. A teenage asylum seeker on Christmas Island who was part of the first group due to be deported to Malaysia. Credit:James Brickwood The government had planned to send 800 asylum seekers to Malaysia in exchange for 4000 already processed refugees, who are in Malaysia. Refugee lawyers asked the High Court to strike down the deal, arguing that the Immigration Minister did not have the power to send asylum seekers to a country that has no legal obligations to protect them. They also argued that sending unaccompanied minors to Malaysia would breach the minister's duty of care as their legal guardian to act in their best interests.

But Commonwealth Solicitor-General Stephen Gageler argued the government could lawfully declare Malaysia a safe third country even though it had no domestic nor international legal obligations to protect asylum seekers. A 6-1 majority of the full bench ruled Mr Bowen's declaration that Malaysia was an appropriate country to which to send aslyum seekers was invalid. The court found that a country must be bound by international or domestic law to provide protection for asylum seekers to be an appropriate destination. "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," a summary of the court's judgment read. Australian National University international law expert Donald Rothwell said the fact that Malaysia was not a signatory to the UN Refugee Convention was most likely "a key factor" in the court's decision.

Professor Rothwell said the decision could not be appealed against but that the government might seek other ways to revive the policy. Loading A spokeswoman for Mr Bowen said the federal government was still looking at the ruling and would "respond in due course". AAP