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Letter to Prime Minister Gillard regarding the Refugee/Asylum Seeker Exchange Agreement with Malaysia

The Hon. Julia Gillard MP
Prime Minister
PO Box 6022
House of Representatives
Parliament House
Canberra ACT 2600
Australia

May 26, 2011

Re: Refugee/Asylum Seeker Exchange Agreement with Malaysia

Dear Prime Minister Gillard:

We are writing to express our concerns regarding your May 7, 2011 announcement that Australia is pursuing a deal with Malaysia under which 4,000 recognized refugees from Malaysia will be exchanged with Australia for 800 asylum applicants from Australia to Malaysia.  Our concerns outlined below are based on the announced agreement, many of whose details have not yet been made public.

The agreement with Malaysia appears to lack necessary guarantees that asylum seekers transferred from Australia to Malaysia will be treated in accordance with Australia's international human rights obligations. Based on our understanding of the agreement, we are deeply concerned that Australia would be prepared to forcibly transfer asylum seekers to Malaysia.  Forcibly transferring asylum seekers to a place, such as Malaysia, where they could be exposed to torture and other mistreatment violates Australia's obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights. Australia will offload asylum seekers to a country that has not acceded to the 1951 Refugee Convention, has no domestic refugee law, and no governmental refugee status determination (RSD) procedure, relying instead on an under-resourced and backlogged RSD conducted by the United Nations High Commissioner for Refugees (UNHCR).  Malaysia also has a poor track-record of refugee protection and virtually no record of refugee integration. 

We are also concerned that this deal is premised on the dangerous notion that obligations of states party to the Refugee Convention can be transferred to states with no such convention obligations. Finally, we also fear that this deal tries to subvert the principles underlying refugee resettlement by transforming resettlement from a tool of international protection into a mechanism of migration-control.

Torture and other mistreatment in detention

Under international law, states have an obligation not to return ("refouler") persons to a country where they are at risk of being subjected to torture or other cruel or inhuman treatment.  

Amnesty International has documented many first-hand accounts of whippings, assaults, and other ill-treatment faced by detained migrants in Malaysia.[1] Whipping, as well as the common penalty of caning meted out by Malaysian courts for illegal entry, meets the definition of torture under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.[2]  Australia has an obligation not to expel persons to a country where there are substantial grounds for believing that they would face torture, including because of a "consistent pattern of gross, flagrant or mass violations" of human rights in the country.[3]

Under the International Covenant on Civil and Political Rights (ICCPR), to which Australia, though not Malaysia, is a party, "[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."[4]  The President of the Malaysian Bar has called conditions in immigration centers "degrading, demeaning and dehumanizing, and wholly unacceptable to any civilized society."[5] Conditions are overcrowded and unsanitary.  Asylum seekers and refugees also regularly fall prey to systematic police extortion, and often must make payments to stay out of detention centers to avoid being physically abused, denied medical services and treatment, and held without charge for months at a time.[6] Article 7 of the ICCPR has been interpreted to prohibit deportation of persons to a country where they face a real risk of torture or "cruel, inhuman or degrading treatment or punishment."[7]

While the details of the Malaysia-Australia refugee-asylum seeker exchange agreement are not public, should any of the 800 asylum seekers sent to Malaysia be detained upon arrival, then the agreement would immediately raise very serious concerns that Australia would be violating its obligations not to send people to a place where they would face torture or other ill-treatment.

Risk of refoulement

Parties to the Refugee Convention, such as Australia, bind themselves to the principle of nonrefoulement, a central tenet of the international refugee regime. The principle of nonrefoulement not only bars parties to the convention from returning refugees and asylum seekers to countries where they face a threat of persecution, but also from the return of refugees and asylum seekers to a country where there is a risk of "chain deportation" to the country of feared persecution.  Because Malaysia is not a party to the Refugee Convention and makes no distinction in law between refugees and other irregular migrants, it cannot predictably be regarded as providing refugees effective protection. Specifically, Malaysia has deported large numbers of primarily Burmese migrants in the recent past, including asylum seekers, to Thailand.  Thailand is also not a party to the Refugee Convention, has no refugee law, and regularly deports Burmese to Burma, a country that produces large numbers of refugees because of rampant human rights violations.[8]

Human Rights Watch has also documented endemic corruption in the area of Malaysian immigration enforcement and collusion between Malaysian immigration officials and criminal elements.  We have interviewed Burmese nationals in Thailand and Malaysia who have described how Malaysian immigration officials handed them over to criminal gangs at the Thai border, who trafficked them into sex work, fishing or other industries in Thailand, or-for a price-smuggled them back into Malaysia.[9]  A US Senate Foreign Relations Committee investigation, leading to a report issued April 3, 2009, also reached the conclusion that there was collusion between Malaysian immigration officials and human traffickers operating on the Malaysia-Thailand border.[10]

UNHCR's limited capacity to identify and protect refugees

While UNHCR's presence in Malaysia is positive and promotes refugee rights, its presence in and of itself does not guarantee that the government will respect refugees' rights. Supporters of the exchange agreement cite UNHCR's assurances that the 800 asylum seekers sent to Malaysia will be treated in accordance with Refugee Convention standards.  It is commendable that the Malaysian government allows UNHCR to conduct refugee status determinations and to protect refugees within it mandate.  Limited resources have meant that UNHCR faces a huge backlog of RSD cases.[11]  Malaysia has also recently allowed UNHCR to enter a number of immigration detention centers to assess refugee claims of detained asylum seekers.  Here, too, UNHCR is overstretched and has difficulty covering the 11 immigration detention centers in the country, so that asylum seeker detainees sometimes have to wait months for case assessment and release.  While Malaysia deserves credit for these positive developments, we are concerned that UNHCR's access to detained asylum seekers remains wholly dependent on the Malaysian government - these recent positive developments have followed years of government restrictions on UNHCR access and could easily and unilaterally be reversed. 

Lack of social and economic rights and restricted freedom of movement

Refugees in Malaysia are denied basic economic, social, and cultural rights. For example, UNHCR-recognized refugee children are prevented from attending public schools and are denied elementary education, in violation of the Convention on the Rights of the Child (CRC).[12]

Applicants for RSD with the UNHCR in Malaysia and UNHCR-recognized refugees are not allowed to work legally and must provide for themselves through black-market labor.

Using resettlement to further migration control agenda

Refugee resettlement is one of the three durable solutions to end the plight of refugees, and we welcome Australia's willingness to increase its quota of resettled refugees.  But refugee resettlement should not only rescue the most vulnerable refugees in countries of first asylum, but also leverage improved conditions and other durable solutions for the vast majority of refugees in need of international protection living in countries of first asylum who will never have the opportunity of resettlement.  Precious resettlement places, therefore, should be made available to refugees based on greatest vulnerability where resettlement can be the most effective instrument for protection and durable solutions.[13]  Resettlement should not be part of a quid pro quo deal that reflects a migration-control agenda.  We urge Australia to maintain and to increase its generous refugee resettlement quotas, but to choose refugees in need of resettlement on transparent and objective grounds with the advice of UNHCR, and not based on a bilateral agreement that contravenes the Refugee Convention.

We also take note that there are more than 80,000 UNHCR-recognized "people of concern" in Malaysia and that of the more than 12,600 refugees that UNHCR submitted for third-country resettlement from Malaysia last year, fewer than 8,000 were accepted and resettled during the year.  Thus, the 800 asylum seekers transferred to Malaysia are likely to be placed at the end of a very long queue both for a determination of their refugee status and for the only available durable solution for most refugees in Malaysia-third country resettlement.  We do not have enough details about the agreement to know whether the 800 will be detained or if they may be processed in some expedited manner. However, since the intent of the agreement appears to be to frustrate the desire of asylum seekers arriving irregularly by boat to establish themselves in Australia and to deter others from making the voyage, we are concerned that the agreement will result in relegating them to lives of indefinite uncertainty and hardship in Malaysia.  

Madam Prime Minister, you have said that the purpose of the Malaysia-Australia agreement is to end "the trade in human misery" by the smugglers who send boats of potential asylum seekers to Australia. We find this phrasing unintentionally ironic. The agreement with Malaysia does not appear to take a single step toward identifying and prosecuting smugglers for their crimes, but rather goes after the easy target-asylum seekers arriving on boats-by trading 800 of them for 4,000 refugees, and thus subjecting them, in all likelihood, to years of misery, given Malaysia's poor reception conditions for asylum seekers, lack of employment and educational opportunities for refugees, and unwillingness to consider integrating refugees into Malaysian society.  We ask that you reconsider this agreement in light of Australia's international human rights obligations and in anticipation of the unnecessary human suffering it is likely to cause.

Sincerely,                                               

Bill Frelick                                                                       Brad Adams

Refugee Program Director                                                Asia Division Executive Director


[1] Amnesty International, "Abused and Abandoned: Refugees Denied Rights in Malaysia," ASA 28/010/2010, June 16, 2010, pp. 13, 15,  http://www.amnesty.org/en/library/info/ASA28/010/2010/en.

[2] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, article 1.

[3] Ibid., article 3.

[4] International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 10.

[5] "Law Council concerned over Australian Malaysian Asylum Seeker Agreement." Law Council of Australia media release, May 13, 2011, http://www.lawcouncil.asn.au/media/news-article.cfm?article=E694EC7E-CD2... (accessed  May 20, 2011).

[6] Chooi, Clara. "Malaysia-Australia refugee deal sparks local concerns." Malaysian Insider, May 9, 2011, http://www.themalaysianinsider.com/malaysia/article/malaysia-australia-r... (accessed May 20, 2011).

[7] UN Human Rights Committee, General Comment 31: Nature of the Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (2004). See also UN HRC, General Comment 20, para. 9. 

[8] Human Rights Watch, Thailand - From the Tiger to the Crocodile: Abuse of Migrant Workers in Thailand, February 2010, https://www.hrw.org/en/reports/2010/02/23/tiger-crocodile-0, pp. 68-69.

[9] Elaine Pearson, "No Sanctuary: Trafficking of Burmese people at the Thai-Malay Border," The Nation (Bangkok), February 12, 2009, https://www.hrw.org/en/news/2009/02/12/no-sanctuary-trafficking-burmese-p... (accessed May 25, 2011).

[10] US Congress, Senate, Committee on Foreign Relations, Trafficking and Extortion of Burmese Migrants in Malaysia and Southern Thailand, 111th Cong., 1st sess., 2009, S. Prt. 111-18, http://www.gpo.gov/fdsys/pkg/CPRT-111SPRT48323/html/CPRT-111SPRT48323.htm (accessed May 24, 2011), pp. 2, 8-11.

[11] Amnesty International, "Abused and Abandoned," p. 11.

[12] Ismail, Yante. "Refugee-run school gives children a chance at education in Malaysia." United Nations High Commissioner for Refugees press release, Jan. 7, 2010, http://www.unhcr.org/4b45dcc29.html (accessed May 23, 2011).  See Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2, 1990, article 28.  Malaysia ratified the convention in 1995.

[13] "UNHCR Projected Global Resettlement Needs 2011," Resettlement Service, Division of International Protection, UNHCR, June 2010, pp. 9-15, http://www.unhcr.org/4c31e3716.html (accessed May 26, 2011).

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