MEMORANDUM to the Australian High Commission in Malaysia on the Australia-Malaysia Agreement on the Transfer of Asylum Seekers

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.

Endorsed by:
Health Equity Initiatives (HEI)
Lawyers for Liberty (LFL)
Malaysian Social Research Institute (MSRI)
Suara Rakyat Malaysia (SUARAM)
TENAGANITA

Concerns over the Proposed Australia-Malaysia Refugee Transfer Arrangement

Concerns over the Proposed Australia-Malaysia Refugee Transfer Arrangement

For Release: 12 May 2011

The Migration Working Group is deeply concerned to hear about the possibility of a bilateral agreement between Australia and Malaysia in which 800 asylum seekers arriving by boat to Australia will be transferred to Malaysia for refugee status determination in return for Australia resettling 4,000 UNHCR-recognised refugees over 4 years.

Australia, as a state party to the 1951 Convention Relating to the Status of Refugees (1951 Convention) and its 1967 Protocol, should not violate its obligations under the 1951 Convention. It is surprising that Australia would even consider Malaysia as an ally in refugee protection. Malaysia has shown no positive signs of considering accession to the 1951 Convention. Worse still, Malaysia has one of the most appalling records for the abuse, torture and detention of asylum seekers and refugees.

Most asylum seekers and refugees in Malaysia live in squalid conditions, poverty and insecurity. Without the formal right to reside and work in Malaysia, most are forced to obtain jobs in the informal economy, where many suffer from violations of labour rights, including unpaid wages and forced labour. They are in constant danger of arrest, detention, punishment for immigration offences (including whipping) and deportation, leading to refoulement. When arrested, they face months of detention in immigration detention depots, many of which are overcrowded and unhygienic with poor sanitation. Refugee children are not provided with access to education.

We are concerned that the 800 asylum seekers transferred to Malaysia will suffer from the same conditions currently faced by asylum seekers and refugees in Malaysia. What procedural safeguards and measures will Australia and Malaysia put in place to ensure that the rights of asylum seekers and refugees under the 1951 Convention are protected? How will Australia and Malaysia ensure that they will have access to fair refugee status determination procedures and will not be subject to indefinite detention, punishment for immigration offences, and refoulement? While in Malaysia, will they have the right to reside, to work, and, for children, the right to education?

We urge Australia and Malaysia to live up to their existing human rights obligations as members of the United Nations, and for Malaysia to accede to the 1951 Convention and the 1967 Protocol without further delay. Without a domestic legal framework in place for refugee protection that meets the standards of the 1951 Convention, Malaysia should not be considered a safe place for asylum seekers and refugees.

For more information, please contact Daniel Lo, Co-Coordinator of the Migration Working Group at 012 218 6051 (mobile) or [email protected] (email)

Endorsed by the following members of the Migration Working Group:

Building and Woodworkers International (BWI) Asia Pacific
Coalition to Abolish Modern-Day Slavery in Asia (CAMSA)
Coordination of Action Research on AIDS and Mobility (CARAM Asia)
Foreign Spouse Support Group (FFSG)
The National Human Rights Society (HAKAM)
Health Equity Initiatives (HEI)
Justice, Peace & Solidarity In Mission Office, Congregation of the Good Shepherd Sisters, Province of Singapore-Malaysia
Lawyers for Liberty (LFL)
Malaysian Social Research Institute (MSRI)
Malaysian Trades Union Congress (MTUC)
Penang Office for Human Development (POHD)
Pusat Kebajikan Good Shepherd (PKGS)
Suara Rakyat Malaysia (SUARAM)
Tenaganita
Women’s Aid Organisation (WAO)

About the Migration Working Group:

The Migration Working Group (MWG) is a network of Malaysian civil society groups and individuals who advocate for the rights of migrants, refugees, stateless persons, trafficked persons and foreign spouses.