SUARAM strongly condemns the persistence of both the Australian and Malaysian governments in continuing the asylum swap arrangement despite criticism from various quarters including the UN High Commissioner for Human Rights Navi Pillay, United Nations High Commissioner for Refugees (UNHCR), various international human rights organizations and Australian and Malaysian civil society groups.

SUARAM is appalled at the poor regard of human rights contained in the contents of the draft agreement as announced by ABC TV’s Lateline show and the Malaysian Government’s stand against inclusion of human rights principles in the agreement. Based on the revelation made by ABC TV’s Lateline show on 2 June1, we are deeply concerned that the Malaysian government will repatriate asylum seekers to their country of origin with or without consent by the asylum seekers. This is a violation of the international customary law of non-refoulement, which prohibits the return of people to places where they may face persecution or threats to their life or freedoms. By signing this agreement, the Australian government is effectively violating their own obligations under the 1951 Refugee Convention.

It has been reported that the Malaysian government will exempt the transferred 800 asylum seekers from punishment as undocumented migrants under the Immigration Act2. Section 55 of the Immigration Act 1959/63 allows for the Home Minister to exempt any persons from any provisions in the Act. If the Malaysian Government intends to invoke Section 55 for this group of 800 asylum seekers, we question why this exemption is not extended to all refugees and asylum seekers in Malaysia.

SUARAM is also concerned that even the rights of vulnerable groups such as unaccompanied minors are not respected and guaranteed under this asylum arrangement. In recent developments, Immigration Minister Chris Bowen has stated unaccompanied minors will be considered for transfer on a case-by-case basis. SUARAM condemns this approach of selective granting of rights for unaccompanied minors.

SUARAM urges Australian and Malaysian governments to stop playing a zero-sum game in their efforts to combat human trafficking and smuggling. Both the governments must respect the rights of all individuals seeking asylum in Australia and not gamble on their fate by transferring them to a country (Malaysia) that has not ratified the 1951 Refugee Convention. While this may appear to be a win-win arrangement as mentioned by both governments, however the governments have failed to consider those on the losing end: the asylum seekers who will be transferred to Malaysia.

We believe that these transnational crimes relating to migration such as human trafficking and smuggling must not be treated merely as a crime but also be inclusive and comprehensive with regards to the human rights of involved individuals. States must also take into consideration that refugees fleeing harm and persecution sometimes use whatever means they deem necessary to seek protection. There is no compromise for human rights and all crime prevention plans undertaken must be consistent and in line with human rights principles.

As such, SUARAM urges;

The Australian and Malaysian governments to call off the asylum swap agreement.

The Australian and Malaysian governments to ensure that future bilateral or regional cooperation relating to human trafficking and smuggling includes highest respect for human rights of the trafficked and smuggled persons.

The Australian government to respect its human rights obligations in the bid to protect its borders and combating transnational crimes. As Australia is located in a region where most states have poor human rights track record, the Australian Government must actively promote upholding of human rights principles instead of condoning human rights violations.

The Malaysian Government to ratify the 1951 Refugee Convention and its 1967 Protocol, and to invoke Section 55 of the Immigration Act to exempt all asylum seekers and refugees from punishment for immigration offences while domestic legislation and policies to recognise refugees are enacted.

Andika Ab. Wahab
Refugee Coordinator
Suara Rakyat Malaysia (SUARAM)
[email protected]