Memorandum to Suhakam on the Australia-Malaysia refugee “outsourcing” deal


On 7 May 2011, the Australian and Malaysian governments announced a bilateral agreement which sought to transfer up to 800 asylum seekers who have arrived in Australia by sea to Malaysia while their asylum claims are being processed by the UNHCR. The announcement declared among others that the “transferees will not receive any preferential treatment over asylum seekers already in Malaysia.” In return, Australia will resettle 4,000 refugees currently residing in Malaysia over a period of four years.

While Australia’s agreement to accept more refugees for resettlement is commendable, we are however extremely shocked and concerned with Australia’s plan to illegally and forcefully deport asylum seekers and “outsource” its international obligation to protect refugees as defined under international law including the 1951 Refugee Convention which Australia is a party to.

We strongly condemn the Australian and Malaysian governments persistence in continuing this “outsourcing” deal despite criticisms from various quarters including from OHCHR, UNHCR, various international human rights organisations, and Australian and Malaysian civil society organisations.

Malaysia’s horrendous refugee track record

Let there be no doubt: Malaysia has a horrendous track record – infamous for its ill and brutal treatment of refugees and other undocumented migrants and has been consistently ranked as one of the world’s worst place for refugees to live.

Malaysia is not a state party to the Refugee Convention and in the absence of a comprehensive national legal and administrative framework for the protection of refugees, this transfer deal will certainly violate the rights of the refugees including the right not to be forcefully deported; the right to life, liberty and security of the person; and the right to freedom from torture or cruel, inhuman, or degrading treatment or punishment.

In Malaysia, refugees and asylum seekers are still treated as undocumented migrants and subjected to harsh immigration laws and policies. Without documents, they are unable to work legally and live in perpetual fear of raids, arrest and harassment. Consequently, they live in the margins of society, constantly in hiding and living in poverty.

When arrested they are detained at detention centres for several months (sometimes even years) before being charged, jailed, whipped (men only) and deported, mainly to the Thai border – and some find themselves sold to human traffickers.

In May and September 2009, eight Burmese detainees died in two detention centres due to Leptospirosis, an infectious disease caused by water or food contaminated with animal urine. Detention conditions are deplorable and inhumane – overcrowding, sweltering, lack bedding, poor hygiene and sanitation, insufficient and poor quality food, irregular access to clean water and medical treatment, all of which fall far short of minimum international standards. Serious abuse by detention centre staff is also common, including arbitrary beatings.

The then-Home Minister Datuk Seri Syed Hamid Albar reported to Parliament that between 1999 and 2008, there were 2,571 detainee deaths in prisons, rehabilitation centres and immigration detention centres. In December 2008, former Suhakam Commissioner Datuk Siva Subramaniam said 1,300 foreigners died in detention during the past six years due to lack of medical treatment and neglect.

Suhakam’s role

We view with concern Suhakam’s (real or perceived) lack of involvement in advising the Malaysian government over such an important agreement with serious repercussions. Suhakam must step up and play a larger role in ensuring that the deal does not violate international human rights laws and standards and that the rights and welfare of refugees are prioritised.

As has been widely reported, the Malaysian government is seeking to delete all references to human rights in the agreement and key words like “asylum seekers” and “refugees” may not even feature in the agreement. Instead these asylum seekers will be referred to as “illegal immigrants” and “the treatment of the transferee while in Malaysia will be in accordance with the Malaysian laws, rules, regulations and national policies.” However there are reports that these asylum seekers may now be “exempted” from being treated as “illegal immigrants” and as such may not be subjected to arrest, detention and caning etc.

But how does this reconcile with the declared aim that the “transferees will not receive any preferential treatment over asylum seekers already in Malaysia”? What about the rights of the 90,000 asylum seekers and refugees already in Malaysia? Why should they not be “exempted” like the 800 asylum seekers if the reports are true?

All such contradictory reports, lack of information and transparency, and participation from civil society and Suhakam do not bode well for the future of any refugees in the country. Suhakam should not seemingly accept at face value what government officials say, for example as reported recently: “Malaysia has given a firm commitment that the 800 asylum seekers would not be caned, would not be put in detention centres and would be treated with dignity and respect. If the arrangement with Australia results in better treatment of all refugees, that is something we would welcome. And if this arrangement paves the way for Malaysia to sign the 1951 Convention, that would be good. The whole aim of the arrangement is to expedite processing and resettlement,” says Commissioner Datuk Dr Khaw Lake Tee. (Hopes and fears of a novel refugee deal, NST, 6 June 2011).

Such words are meaningless and valueless. While we understand that Suhakam aims to work constructively with the Malaysian government, it however must not be complicit and to seemingly accept such words without incorporating any concrete commitments or changes into the agreement or into the immigration laws, regulations, policies and administrative framework. It is essential for Suhakam to demand that any changes or reforms made should be done in a comprehensive, transparent and coherent manner rather than the present ad hoc, secretive and incoherent approach.

Recommendations to Suhakam

* Urge the Malaysian government to immediately withdraw from the agreement until comprehensive discussions are held with UNHCR, Suhakam and civil society organisations;

* Urge the Malaysian government to establish domestic legislation and policies to protect and promote the rights of refugees and asylum seekers who are already in the country and to ratify the 1951 Refugee Convention and its 1967 Protocol;

* Urge the Australian government to respect its international obligations to refugees including under the Refugee Convention, the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);

* Urge the Australian and Malaysian governments to ensure that future bilateral or regional cooperation concerning human trafficking and smuggling includes respect for the human rights of the trafficked and smuggled persons, asylum seekers and refugees;

* Urge the Australian government to actively defend and promote human rights obligations instead of condoning human rights violations.

Submitted by:

1. Lawyers for Liberty (LFL)
2. Suara Rakyat Malaysia (Suaram)
3. Tenaganita
4. Malaysian Social Research Institute (MSRI)