Double standards in Australia-Malaysia refugee swap deal

Aliran is dismayed that the most fundamental requirements of refugee protection, especially the basic human rights of all refugees, is not covered by the Australia-Malaysia asylum seekers-for-refugees swap deal signed on 25 July 2011 – notwithstanding that Malaysia is not a state party to the 1951 Refugees Convention.

Sydney World Refugee Day march - Photograph: Peter Boyle

Malaysia has not guaranteed human rights protection for either its own citizens, legitimate asylum seekers, refugees or any other migrants in this country, as recent events here have revealed. Issues relating to refugee and human rights protection currently seem to be confined to policy and the terms of the agreement between both governments, with the necessary involvement of the United Nations High Commissioner for Refugees and the International Organisation for Migration (IOM) The provisions of this particular refugee swap agreement do not apply to the thousands of asylum seekers and refugees currently in Malaysia.

Detailed information regarding this agreement has been more widely accessible to the public in Australia and other countries. But there has been limited disclosure of such information to the Malaysian public in the local mainstream media. This points to the fact that there is virtually no transparency by the Malaysian government over issues of grave public concern.

Partial accounts of government dealings usually highlight claimed advantages but frequently the disadvantages of such deals are not publicised. In this case, Malaysia stands to receive US$316m for taking in 800 asylum seekers from Australia in exchange for allowing 4000 UNHCR-confirmed refugees to be resettled in Australia over four years.

Australian government sponsorship of asylum seekers “exported” to Malaysia raises the fear of double standards applied to asylum seekers and refugees. It has been brought to our notice that the 800 asylum seekers coming from Australia will be given preferential treatment, affording them protection from arrest, detention and other human rights violations experienced by those deemed “illegal immigrants” under the Immigration Act 1959.

In contrast, asylum seekers and refugees currently in Malaysia or who arrive from elsewhere will not be afforded such privileged protection, as they are not covered by this agreement. This double standard is discriminatory and will potentially serve to further divide refugee communities in Malaysia. Such discrimination is a blatant violation of human and refugee rights under which equal treatment is requisite under international human rights and refugee law.

From Australian Immigration Minister Chris Bowen’s speech at the Refugee Conference in the UNSW, Australia, in June, the obvious aim of this scheme is to out-source Australia’s Refugee Convention obligations to countries with large refugee inflows that have no treaty obligations to refugees.

Paradoxically, it should be Refugee Convention countries like Australia, New Zealand and lately Nauru, with the capacity and potential to carry out refugee status determination and resettlement procedures, that should be setting an example in upholding refugee rights. These countries should be assisting the UNHCR in Malaysia, Thailand and Indonesia to reduce their backlog of cases awaiting status determination and to register the thousands of asylum seekers awaiting UNHCR registration in these countries.

Malaysia has been tussling with the problem of refugees since the 1970s but has produced no practicable, workable solution or organised system to deal with this influx. This fact should have been significant to the Australian Government before it rushed into this deal.

But apart from sporadic efforts by the Malaysian Home Affairs and immigration authorities, there has been no substantial move to set up a government-supported process for asylum seekers and refugees in Malaysia. Instead, Malaysia has frequently engaged in launching crackdowns deploying security enforcers like Rela, immigration enforcement units, the police and even municipal council enforcers to arrest, detain and obviously ‘punish’ undocumented migrants regardless of their reasons for being in the country. The glaring result of these actions is the widespread human rights violations that have become common knowledge nationally and internationally.

Setting up a two-tiered system, where a small number of potential refugees will benefit from an Australian-type support system funded by the Australian government, leaving the majority of asylum seekers and refugees currently in Malaysia without any support system besides a very limited one provided by Malaysian civil society organisations (CSOs) and the UN Refugee Agency, is certainly not the solution to the refugee or human smuggling and trafficking problems in the region. We are aware that the first ‘lot’ of asylum seekers reaching Australian waters in the past few days will imminently be sent to Malaysia.

Government trivialises human trafficking

Aliran notes that eight immigration officers who were detained under the Internal Security Act (ISA) for involvement in human trafficking activities last October have been released without being brought to trial. Hishammuddin Hussein, the Minister of Home Affairs, did not see fit to try them in a court of law. The decision to release the officers was made after they admitted to their wrong-doing and promised not to repeat the offence, he was reported as saying by the official Bernama news agency. The officers were said to have assisted authorities in subsequent human trafficking cases.

Opposition parties have questioned this move and called for the officers to be brought to trial. The decision to prosecute alleged crimes seems to hinge on a deal cut by the Home Affairs Ministry with the alleged offenders. No guarantees are given that justice will be done or be seen to be done.

Aliran joins the call to bring the eight immigration officers accused of human trafficking to trial, if the Malaysian government seriously intends to curb human trafficking/people smuggling in the country.

Aliran welcomes the UNHCR’s statement that the UN Refugee Agency is not signatory to this refugee swap deal although acting as the principal consultant in the arrangement But we hope the UN Refugee Agency will continue to insist on prioritising human rights and refugee protection and make ratification of the 1951 Refugee Convention and the 1967 Protocol a pre-requisite for any kind of government bilateral agreement dealing with asylum seekers and refugees.

We also hope that the UN Refugee Agency sees the need to emphasise the respect and exercise of basic human rights in monitoring the implementation of refugee protection according to Refugee Convention provisions.

Aliran also notes whilst it has necessarily involved the UNHCR and other international organisations concerned with refugees in arranging the bilateral refugee swap deal with Australia, the Malaysian government has not given any assurances or pledges that it will remedy widespread human rights violations in the country.

The Malaysian government is apparently treating this arrangement as a one-off, despite the fact that there is a possibility of it becoming permanent. There has also been no pledge to ratify the 1951 Refugee Convention, although the government seeks to reap the benefits of this agreement.

Aliran strongly urges the Malaysian government to ratify the 1951 Refugee Convention and the remaining international human rights conventions before further implementation of its controversial refugee swap deal with Australia.

Aliran Executive Committee
5 August 2011

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