Prime Minister Dato' Sri Mohammed Najib bin Tun Abdul Razak
Office of the Prime Minister
Main Block, Perdana Putra Building
Federal Government Administrative Centre
62502 Putrajaya, Malaysia
Via facsimile, email
Re: Refugee/Asylum Seeker Exchange Agreement with Australia
Dear Mr. Prime Minister:
We are writing to express our grave concerns about the planned agreement under which Malaysia will send 4,000 recognized refugees to Australia for resettlement in exchange for 800 asylum seekers forcibly transferred from Australia to Malaysia. Although details of the agreement have not been made public, the broad outlines of the arrangement combined with Malaysia's record on refugee protection and treatment of asylum seekers give rise to significant concerns.
Malaysia has made some improvements in its treatment of asylum seekers and refugees in recent years, including a reduction of forced repatriation at the Malaysia-Thai border and some increased protection for persons with UNHCR cards. However, Malaysia, which is not a party to the 1951 Refugee Convention and its 1967 Protocol, does not have a coherent refugee policy and depends on the United Nations High Commissioner for Refugees (UNHCR) for refugee status determination.
Asylum seekers and refugees in Malaysia continue to experience egregious treatment. Malaysian law allows caning of "illegal migrants"-which in Malaysia includes asylum seekers- as punishment for immigration offenses and is commonplace. Conditions in immigration detention centers fail to satisfy basic international human rights standards and expose detainees to physical abuse, degrading conditions, and health risks. Prohibitions on employment eliminate work opportunities outside the informal (underground) sector and lack of access to education for refugee and asylum seeker children violates their basic right to education.
In light of these ongoing violations, we urge you to work with UNHCR to establish Malaysia's capacity to adequately assist and protect refugees and asylum seekers before reaching agreements under which Malaysia risks becoming a dumping ground for nearby states like Australia.
Torture and mistreatment in detention
Malaysia makes no distinction between foreign nationals without visas or work permits who are not seeking asylum in Malaysia, and asylum seekers or UNHCR-recognized refugees. Even though UNHCR in Malaysia refers to asylum seekers and refugees as "persons of concern" all are considered "illegal migrants" under Malaysian law.
Malaysian law decrees that so-called illegal migrants, including those going through UNHCR refugee status determination procedures, should be detained pending their removal from Malaysia, or UNHCR's decision.
Detainees are held without charge for months on end in overcrowded and unsanitary immigration detention centers. They are denied medical services and treatment, may be physically abused and are subject to petty extortion by their caretakers. In May 2011, the president of the Malaysian Bar called conditions in Malaysia's immigration centers "degrading, demeaning and dehumanizing, and wholly unacceptable to any civilized society."
Immigration law provides that any person deemed to be an "illegal migrant" may be caned. As a form of corporal punishment, caning amounts to torture under the Universal Declaration of Human Rights. Interviews conducted by Human Rights Watch and others with eyewitnesses to caning attest to this practice's cruelty and lingering psychological effects. We and other organizations have repeatedly called on Malaysia to abolish caning as a legally sanctioned punishment for immigration violations and all other offenses.
Nonrefoulement and risk of exposure to people traffickers
The 1951 Refugee Convention and customary international law prohibit states from engaging in refoulement, that is, returning a refugee to a country where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Also prohibited is the so-called chain refoulement, in which a person is sent to a country from where they might then be refouled to their country of origin.
According to UNHCR, over the past year or so, Malaysia has not refouled any asylum seekers or refugees to their country of origin. However, research by both Human Rights Watch and the US Senate Foreign Relations Committee found that Malaysia has deported Burmese nationals to Thailand, which in turn is known to forcibly return them to their countries of origin where they face the risk of persecution.
UNHCR's asylum backlog
Malaysia's policy of categorizing all asylum seekers and refugees as "illegal migrants" means the government does not assume any obligation to assess asylum claims under Malaysian law. Instead, Malaysia relies entirely on UNHCR, allowing it to carry out all refugee status determination (RSD) and to oversee the resettlement of UNHCR recognized refugees to third countries.
Even if Malaysia were politically willing, it would likely take years for your government to setup a replacement for UNHCR's RSD procedures in accordance with international standards. For UNHCR it remains a struggle to address the huge backlog of cases housed in Malaysia's 11 immigration detention centers. For detainees it means months in detention centers under the poor conditions described above. Home Minister Secretary General (Registration and Immigration) Datuk Raja Azahar Raja Abdul Manap said on June 6 that it takes, "five to ten years" before UNHCR secures resettlement for resettlement candidates. Even if Malaysia does not detain any of the 800 asylum seekers coming from Australia, as asserted on June 7 by Khaw Lake Tee, chairperson of the Malaysia Human Rights Commission, the huge addition of cases and continued limited resources will undoubtedly negatively affect those already in detention.
Guaranteeing refugees' and asylum seekers' right to work
Under Malaysian law "illegal migrants" are denied basic economic, social and cultural rights recognized under the Universal Declaration of Human Rights, including the right to work and for children the right to at an elementary school education. The 800 asylum seekers to be transferred under the proposed agreement would also be denied these rights.
Proper role of resettlement and burden sharing
Refugee resettlement is one of the three durable solutions that help end the plight of refugees and Human Rights Watch welcomes policies that seek to increase refugee resettlement. But resettlement for one group cannot be used as a justification to deny others their rights under international law. The transfer of 4,000 refugees for resettlement in Australia will come at a high price for the 800 asylum seekers to be transferred to Malaysia. Nor should the option of resettlement be dependent on countries like Malaysia receiving additional asylum seekers.
Instead, Malaysia should take advantage of Australia's stated aim of developing a regional burden-sharing system by seeking Australian support to create an effective Malaysian asylum system that would enhance the country's ability, in the medium term, to protect asylum seekers and refugees.
The Malaysia-Australia transfer agreement is premised on the sacrifice of the rights of a large group of persons potentially at grave risk. Instead of being hailed as a "cooperative" plan, as you described it on May 7, the agreement is likely to be viewed globally as a means by which one country uses another as a politically expedient dumping ground under the guise of regional amicability. We urge you to reject this agreement and instead use this opportunity to seek support to build Malaysia's capacity to assist and protect the almost 100,000 persons of concern in the country and those who will arrive in the future.
Bill Frelick Brad Adams
Director, Refugee Program Director, Asia Division