United Nations High Commissioner for Refugees
Case Postale 2500
CH-1211 Genève 2 Dépôt
June 13, 2011
Re: Refugee/Asylum Seeker Exchange Agreement between Australia and Malaysia
Dear Mr. High Commissioner,
We are writing to express our concerns regarding the position of UNHCR on the pending refugee/asylum seeker agreement between Australia and Malaysia and to call on UNHCR not to endorse the agreement, regardless of undertakings the two parties might make in the final version.
Our objections to the agreement are based on a recent draft of the agreement (no doubt partially superseded by later negotiations), statements made by the two governments, Malaysia's track record on refugee protection, and Australia's international obligations, as well as UNHCR's own standards and obligations governing its involvement in such arrangements, as set out in internal communications.
Human Rights Watch has already sent public letters to both governments outlining our concern that Australia will be in violation of its obligations under international refugee and human rights law if it transfers asylum seekers to Malaysia, as well as setting out the range of violations asylum seekers and refugees face in Malaysia. The letters are attached and can also be found on our website: https://www.hrw.org/en/news/2011/05/26/letter-prime-minister-gillard-regarding-refugeeasylum-seeker-exchange-agreement-mala (letter to Australia, dated May 26, 2011) and https://www.hrw.org/en/news/2011/06/13/letter-prime-minister-razak-regarding-refugeeasylum-seeker-exchange-agreement-austra (letter to Malaysia, dated June 13, 2011). In our view, the points raised in those letters provide sufficient reasons for UNHCR not to support the agreement.
As set out below, we believe that UNHCR's support for the agreement will be contrary to its own obligations and standards.
Transferees Risk of Torture and Refoulement
Under Malaysian law, "illegal immigrants," which include asylum seekers, may be caned for immigration offences, a punishment that constitutes torture in violation of international law. Any transfer by Australia of asylum seekers to Malaysia or any other place where there they face such punishment violates Australia's obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. UNHCR risks being complicit in torture should asylum seekers transferred to Malaysia under the agreement face caning or other unlawful punishment, regardless of Malaysia's undertakings in the agreement. Even if none of the 800 asylum seekers to be transferred to Malaysia will be detained, as Khaw Lake Tee, chairwoman of the Malaysia Human Rights Commission stated on June 7, UNHCR will likely determine that some of the 800 are not refugees, leaving them classified as illegal migrants who could be detained pending removal from Malaysia and subject to caning.
Specific groups of asylum seekers returned to Malaysia may face forcible return, chain refoulement and other risks. While UNHCR's internal situation reports found that Malaysia has not in the past year refouled any asylum seekers or refugees to their country of origin, Malaysia in the recent past has deported Burmese nationals to Thailand, which is known to forcibly return them to Burma where they face a real risk of persecution. Additionally, as Human Rights Watch and the US Senate Foreign Relations Committee have documented, Malaysian immigration officials have handed deportees over to organized criminal gangs operating on the Thai border, who then trafficked deportees into sex work, off-shore fishing, or other industries in Thailand.
UNHCR Refugee Status Determination (RSD) in Malaysia
Internal UNHCR documents make clear that a transfer from a state party to the Refugee Convention to a non-state party may be permissible as long as human rights standards in the non-state party are met "in practice" and the non-state party is being "assist[ed with] setting up or implementation of ... asylum procedures or ... durable solutions ... [as] part of a strategy to establish and enhance the capacity of the State on whose territory reception and asylum processing take[s] place" Yet even when these conditions are met, UNHCR itself accepts that UNHCR's "involvement is not appropriate where it may have the effect of devolving State responsibilities for asylum-seekers and/or refugees to UNHCR."
At one level it might appear that UNHCR - by simply continuing to carry out RSD and resettlement on behalf of Malaysia - is not "devolving" new responsibilities to itself under this agreement. Yet if UNHCR approves this agreement, it would effectively be allowing Australia to devolve its RSD and resettlement responsibilities to UNHCR in Malaysia. That UNHCR is carrying out RSD on Malaysia's behalf does not change that fact.
Moreover, there is no indication that Malaysia is on the brink of taking over RSD from UNHCR. UNHCR has been the primary refugee status determiner in Malaysia for 35 years and according to its own website, UNHCR plays an even greater role now than it did in the 1970s. Despite its recent reductions in extended detention for certain UNHCR cardholders and moving away from using the RELA Corps to enforce immigration law, Malaysia has shown little to no progress or intention to set up its own RSD system. 
Even if the substitution of UNHCR for Australian RSD were acceptable, the transferee asylum seekers and others in UNHCR's caseload would be at risk because of UNHCR's limited RSD capacity in Malaysia. First, while Malaysia allows UNHCR access to the country's 11 immigration detention centers to assess refugee claims of detained asylum seekers, this access remains wholly dependent on the Malaysian government, which for years refused such permission. The greater access recently provided could just as easily be reversed.
Second, UNHCR is already overstretched and has difficulty covering all of the centers. Detained asylum seekers fortunate enough to be identified then have to wait months for their cases to be assessed, during which time they face poor conditions in detention. Home Minister Secretary General (Registration and Immigration) Datuk Raja Azahar Raja Abdul Manap recently said that resettlement candidates face "five to ten years" delay before their cases are processed and a durable solution achieved.
Third, we are concerned that UNHCR will be unable to access non-detained transferees, given that its access to asylum seekers outside of detention centers in Malaysia depends on facilitation by community organizations which tend to be organized according to the ethnicity or nationality of their members. Asylum-seekers from under-represented minorities without community organization(s) to represent them therefore do not have easy access to UNHCR. While UNHCR has said it is aware of and addressing this issue, we believe unknown numbers of transferees will likely face difficulties in accessing UNHCR services and protection.
Finally, if the transferees are not detained but do not receive appropriate UNHCR documentation pending a final decision on their status, they risk arbitrary arrest and deportation by the authorities. Refugees and asylum seekers with UNHCR "Person of Concern" documentation, which is not recognized under Malaysian immigration law, will also be at risk.
Other UNHCR Operational Standards
Given Australia's international legal obligations and the ongoing mistreatment of refugees and asylum seekers in Malaysia, UNHCR's support for the agreement would violate a range of UNHCR's operational standards.
First, UNHCR requires that a state intercepting asylum seekers at sea should ensure they have access to "reception facilities" and "fair and efficient asylum procedures." By transferring refugees arriving in boats to Malaysia, Australia will fail to comply with both standards, given that Malaysia's "reception facilities" fall far below international human rights standards and the limits to UNHCR's RSD capacity in Malaysia.
Second, an intercepting state may only consider using an external processing regime if that regime meets "international standards" and if one or more other criteria are met, for example, it serves a regional responsibility and burden-sharing purpose. While on the surface this agreement would qualify as a burden-sharing arrangement, conditions faced by transferees in Malaysia would not meet "international standards," given the risk of inhumane detention conditions, torture or ill-treatment, refoulement, exposure to human traffickers, and violations of basic social and economic rights. In UNHCR's own terms, the agreement would certainly not increase the transferred asylum seekers "protection space."
Proper Role of Resettlement and Transfer
Resettlement is an excellent solution to end the plight of refugees, and we welcome any arrangement that seeks to increase its application. But receiving states should not be used as dumping grounds for inconvenient persons to facilitate the transfer of recognized refugees already earmarked for resettlement.
In our view, instead of supporting this agreement, UNHCR should attempt to use the apparent willingness on the part of Australia and Malaysia to negotiate better arrangements for all parties involved. Australia appears to be willing to support a long-term solution to the issue of boat arrivals, and Malaysia seems willing to take on a high-profile role in that process. UNHCR should encourage Australia to help facilitate systemic improvements in the protection Malaysia offers asylum seekers. The so-called people-smuggling model will only be broken when the reasons asylum seekers are paying to be smuggled to Australia - better conditions, opportunities to build a life, and respect for human rights - are present in other more easily accessible countries. All sides would benefit from a more proactive arrangement: Australia could use its resources to create a durable long-term solution to a problematic immigration situation; Malaysia could create medium-term immigration reform and systemic improvements in the way it handles the greater refugee situation in Southeast Asia; UNHCR would continue to play an important role without compromising its values; and those seeking protection in Malaysia, Australia, and elsewhere in Southeast Asia will find more hospitable situations without the threat of forced removal to countries where they are at risk.
Human Rights Watch appreciates that UNHCR faces real political and humanitarian pressures to be involved in any refugee-related deal in the region, even if they are inconsistent with your human rights obligations and operational standards. Yet an organization that ultimately exerts its power through moral authority risks losing the ability to affect change when it compromises that source of strength. We respectfully urge UNHCR to withdraw its support from this agreement.
Bill Frelick Brad Adams
Refugee Program Director Asia Division Executive Director
 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 3.
 Coorey, Phillip, Tom Allard, "Refugee swaps about to get nod," Sydney Morning Herald, June 7, 2011, http://www.smh.com.au/national/refugee-swaps-about-to-get-nod-20110606-1... (accessed June 7, 2011).
 On June 9 the Australian government said that the 800 asylum seekers transferred to Malaysia will be held for six weeks at the most. AFP, "Australia boatpeople given immunity from caning," Malaysiakini, June 9, 2011.
 UNHCR Malaysia, "Situation Report," unpublished document on file with Human Rights Watch, April 2011, section I (A).
 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).
 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.
 US Dept. of State, 2010 Country Reports on Human Rights Practices - Malaysia, (Washington: April 8, 2011), p. 8.
 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.
 UNHCR, "Maritime interception operations and the processing of international protection claims; legal standards and policy considerations with respect to extraterritorial processing," November 2010, http://www.unhcr.org/refworld/docid/4cd12d3a2.html (accessed June 5, 2011).
 UNHCR, "Transfer of responsibility for asylum-seekers from Australia to Malaysia - Key Conditions for UNHCR's engagement" unpublished document on file with Human Rights Watch, May 20, 2011, p. 2.