The Federal Government's refugee swap deal with Malaysia is under legal challenge after lawyers launched a High Court action on behalf of a woman and her four-year-old son being held on Christmas Island.Late on Thursday night papers were lodged in a case that could undermine the Gillard Government's so-called Malaysia Solution before it even begins and came on the day the Coalition and the Greens combined in Parliament to demand the deal be abandoned.
The action centres on the plight of the woman and her son who cannot be named. They are ethnic Kurds fleeing persecution in Iran and arrived by boat on Christmas Island on May 16.
The woman's husband arrived in Australia 18 months ago and is currently being held in the Maribyrnong Immigration Detention Centre in Melbourne.
He has already been granted refugee status and is just awaiting clearance on health and security checks.
Normally that would entitle him to be reunited with his wife and son, but they arrived after the Government announced that no new arrivals will be processed in Australia and will be sent to a third country.
All 274 people who have arrived on boats since the May 7 announcement are earmarked for expulsion.
Immigration Minister Chris Bowen says there will be no blanket exceptions but individual cases, including those of children, could be reviewed on their merits.
"We do not want to see children on boats and as sure as night follows day people smugglers would - if there was any blanket exemption - exploit that and say to people, 'Look, if you put your children on a boat they get to Australia and then they can sponsor you in'. So you can't do that," he said.
Despite that stance the Minister has at times hinted at exemptions. But it is clear that does not apply to the Kurdish woman and her son, now represented by refugee lawyer David Manne.
"This case is about stopping the Government from permanently splitting up a family who are trying to reunite and live together in safety," he told Lateline.
On June 7 Mr Manne wrote to the Government, insisting that both "are owed refugee protection in accordance with Australia's obligations under the Refugee Convention".
Mr Manne argues for family reunion under both international law and the Migration Act.
Two days later Garry Fleming, one of the most senior officials at the Immigration Department, sent the following reply:
"As you would be aware, on 7 May this year the Government announced that irregular maritime arrivals taken to Christmas Island after that date would not have their asylum claims processed in Australia... Minister Bowen has instructed the department not to commence processing of protection claims."
For the woman and her son who came to Australia hoping for a family reunion the letter ended with this bombshell: "They continue to be detained for the purpose of removal to another country"
Last year Mr Manne won the landmark High Court ruling that asylum seekers who arrive by boat and are held offshore can have their cases heard in Australian courts.
The basis of this new action is that the refusal to reunite the Kurdish family is a breach of Australian law plus a breach of three United Nations human rights conventions.
"Essentially what we're arguing is that - and this will be a matter for the court to determine - is whether the Government can in fact expel a wife and a child in a situation where the husband has already been found to be a refugee in Australia and where, under Australian law and international law, there is this right to family unity which means that other family members should be able to stay, to be protected and to live together in safety instead of being expelled to a situation such as Malaysia where it is widely known that they could face serious dangers and indeed very, very troubling mistreatment," Mr Manne said.
Mr Manne is hoping for an urgent High Court hearing as soon as next week and says other challenges cannot be ruled out.
"There's no doubt that there could well be broader implications in relation to this case for others subject to the so-called Malaysian Solution," he said.
"But in another sense it's very important to recognise here that this case also involves some very special considerations... so I wouldn't want to speculate on how much this case will impact on others and more broadly on the policy, but certainly there could well be issues that are relevant in the future."
A spokesman for Mr Bowen told Lateline it would be inappropriate for the Minister to comment while the matter is before the court.