Australia’s High Court today extended its freeze on a refugee swap deal with Malaysia for another eight days, after hearing the arrangement would breach the human rights of asylum seekers.

Australia wants to ship up to 800 boatpeople, including children, to Malaysia as part of its bid to crack down on people smuggling, but the transfer of the first group has been held up by a legal challenge.

The court said its decision would be reserved until Aug 31.

Lawyers for the mostly Afghan group of asylum seekers, who were due to be taken to Kuala Lumpur two weeks ago, have questioned whether Canberra has the right to send potential refugees to the Asian nation.

They also argue that sending asylum seekers to Malaysia would breach their fundamental human rights and that shipping unaccompanied minors would violate the government's obligation to act in their best interest.

Representing a teenage asylum seeker due to be transferred to Malaysia, senior counsel Richard Niall said Immigration Minister Chris Bowen had a legal duty to act in the boy’s best interests.

“It is clear that the move to Malaysia as contemplated would be against his interests and in breach of the duty,” Niall said.

“He is losing the opportunity to be processed in Australia and he is being sent to a country where there’s no legal protection in relation to asylum seekers.”

Australia wants to send asylum seekers to Malaysia and Papua New Guinea as part of what it hopes will be a “regional solution” to stop the trafficking of people to its shores.

But rights groups have attacked the plan as inhumane, arguing that Malaysia is not a signatory to the United Nations convention on refugees and Australia is failing in its obligations to asylum seekers.

The government’s advocate, solicitor-general Stephen Gageler, said Australia could legally declare Malaysia a safe destination even if it did not have laws protecting asylum seekers.

He said Bowen had focussed on the “practical realities” of how people sent to Malaysia would be treated.

“He was correct in law in doing so,” he said.

In representations yesterday, fellow senior counsel Debbie Mortimer said the fundamental rights of asylum seekers to liberty, freedom of movement and freedom from assault were compromised by the deal.

“The proposed conduct of the commonwealth interferes with all three of those rights,” Mortimer told the full bench hearing in Canberra.

'Shiite Muslims discriminated in M'sia'

She said the first plaintiff in the case, Sayed-Navab Shah, who arrived in Australian waters via Malaysia, could be subject to persecution if returned because he is a Shiite Muslim.

Shah has written that his group believes they will be “arrested due to our religious beliefs” if sent to Malaysia, a predominantly Sunni Muslim nation where the minority Shiite community has been accused of threatening national security.

NONE As part of the Malaysia deal, Canberra plans to take 4,000 of Kuala Lumpur’s registered refugees for resettlement over four years. Details of the arrangement with Papua New Guinea have not been released.

Australian Prime Minister Julia Gillard denied the approach was similar to the former conservative government’s so-called “Pacific Solution” under which boatpeople were processed in Papua New Guinea and far-flung Nauru.

“We’ve taken a regional approach because we've always understood that this is an issue for our whole region,” Gillard told ABC radio.

Some 7,000 boatpeople arrived in Australia in 2010 and more than 2,000 have been picked up so far this year.

- AFP