MEMORANDUM to the Australian High Commission in Malaysia on the Australia-Malaysia Agreement on the Transfer of Asylum Seekers
25 May 2011
We, the undersigned civil society organizations, wish to express our opposition to the proposed Australia-Malaysia bilateral agreement, in principle, to transfer the next 800 asylum seekers seeking asylum in Australia to Malaysia.
Although the terms of the joint agreement remain vague, we are of the view that the Australian Government is making a mistake in arranging this joint agreement with the Malaysian Government which is not a signatory to the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). This proposed exchange is a misguided approach in dealing with a complex issue that will cause serious ramifications as Malaysia has a long record of abuse and mistreatment of people seeking protection. This arrangement, if implemented, may lead to the violation of the rights of transferred individuals to Malaysia.
Australia has ratified the Refugee Convention and is obliged to promote and protect the rights of asylum seekers and refugees. Under the convention, Australia may not transfer any refugee who is lawfully present in its territories. Australia may also not transfer refugees who are not lawfully present its country where the transfer may result in violation of the rights of those transferred refugees. Australia may only transfer refugees and asylum seekers to states where there are procedures for the recognition of their status and rights.
Malaysia has no domestic act to protect the rights and security of refugees and asylum seekers as well as no legal recognition of their status. This creates significant barriers in their livelihood options in accessing their right to work, education and health. Furthermore, asylum seekers and refugees live in constant fear of the authorities, in particular, the police, Immigration authorities and the People’s Volunteer Corps (Ikatan Relawan Rakyat, RELA). as they are treated as undocumented migrants and subjected to harsh immigration laws and policies. We question the Australian government’s silence towards Malaysia’s mistreatment of undocumented migrants and refugees while outsourcing its responsibility without seriously taking into consideration the rights, well being and safety of the refugees.
Even though the agreement will see the resettlement of 4,000 refugees from Malaysia to Australia, the agreement falls far from “burden sharing”, as mentioned by the Australian government. Instead, this move is more of a “burden transition” from Australia to Malaysia. The Australian Government should not show a bad example of treatment of asylum seekers and refugees to Malaysia and other states in the region that have not ratified the Refugee Convention.
We emphasise that the Australian Government must first urge the Malaysian Government to ratify the Refugee Convention before making any agreements with regards to refugees and asylum seekers.
We, the undersigned organizations, call upon the Australian government to;
• Immediately withdraw the asylum agreement.
• Urge the Malaysian Government to establish domestic legislation to promote and protect the rights of refugees and asylum seekers who are already in Malaysia and to ratify the 1951 Convention and its 1967 Protocol.
• Respect its international obligations in relation to asylum seekers that enter its country. These obligations include Australia’s commitments under the Refugee Convention and a few other international instruments, including International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Increase its humanitarian programme, in particular, to resettle more refugees from Malaysia and the Southeast Asia region to Australia.
Health Equity Initiatives (HEI)
Lawyers for Liberty (LFL)
Malaysian Social Research Institute (MSRI)
Suara Rakyat Malaysia (SUARAM)