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.

142 ARE STATE PARTIES. IT IS TIME FOR MALAYSIA!

SUARAM will be organizing a launch event on our campaign “142 ARE STATE PARTIES. IT IS TIME FOR MALAYSIA!” in commemoration of the 60th anniversary of the 1951 convention this year.

The launching event will be held:

Date : 8 May 2011 (Sunday)
Place : Annexe Gallery (Central Market, Kuala Lumpur)
Time : 2.00 pm – 5.00 pm

Objectives of the campaign are:

 To remind the 60th Anniversary of the 1951 convention and to urge government to accede the both 1951 Convention relating to the Status of Refugees and its 1967 Protocol
 To urge government to establish domestic act and to protect and promote the rights of refugees, in particular, child and woman refugees, under the both conventions namely the Convention on the Rights of Children (CRC) and Convention on the Elimination and Discrimination Against Women (CEDAW)
 To widen awareness on the life and challenges of refugees living in Malaysia

Event is open to public!!!

For more details:

Contact refugee-desk SUARAM, Andika Wahab, 0163723699 or email to [email protected]

What is the 1951 Convention?

The Convention is the only international agreement covering the most important aspects of a refugee’s life. According to its terms, refugees deserve, as a minimum, the same standards of treatment enjoyed by other foreign nationals in a given country and, in many cases, the same treatment as nationals. The Convention also recognizes the international scope of the refugee phenomenon and the importance of burden sharing in trying to resolve it, and helps promote international solidarity and cooperation.

Year 2011 marks the 60th Anniversary of the 1951 Convention

28 July 2011 marks the 60-year anniversary of the 1951 Convention relating to the status of refugees. About 142 states had acceded the both convention and protocol since its establishment, but Malaysia is yet reluctant to accede the instruments.

142 are state parties: It is time for Malaysia!

Why Malaysian government should accede both the 1951 Convention and its 1967 Protocol?

To provide legal protection and promotion of the rights of refugees and asylum-seekers in accordance with internationally recognized legal and humanitarian standards.
To keep Malaysia’s positive image on the human rights issues in an international arena
To avoid conflict and/or friction between origin and hosting government over refugee questions
To demonstrate the Malaysian government’s commitment and willingness for “burden sharing” in handling global issues
To establish refugee’s effective administration and cooperation with UNHCR
To improve immigration detention centre’s capacity and treatments
To support the lack of human resource in various domestic sectors in Malaysia

RSVP to: http://www.facebook.com/event.php?eid=111562645595870

Changes to Immigration Detention Centres Must Respect Human Rights

Press Statement: 26 August 2010

SUARAM welcomes the Malaysian Government’s move to review the management and upgrade the facilities of Immigration Detention Centres. National and international human rights organisations have long raised concerns regarding the deplorable conditions and poor management of detention centres but up until now, the Government has repeatedly denied such claims. By acknowledging the dire conditions at the detention centres, it stands to reason that the Government can no longer ignore this issue.

It was announced that the Government intends to revamp the detention centres within the next 3 months. However, SUARAM is concerned about some aspects of the announced plans which are as follows:

1.      Reinstating RELA to manage security
In November 2007, when the management of immigration detention centres were transferred from the Prisons Department to the Immigration Department, RELA personnel were deployed as the Immigration Department lacked personnel. Mid-2009 onwards, RELA personnel were withdrawn from the detention centres. During the period that RELA assisted in managing the detention centres, there were many allegations of poor treatment of detainees by RELA personnel, including verbal, psychological and physical abuse.

SUARAM is disappointed that the Government has made a u-turn on this decision by now including RELA in the management of the detention centres again. We have repeatedly argued that RELA personnel should not be given powers to act as law enforcement agencies as they do not have adequate training.

2.      Explore alternatives to detention
As most migrants detained in immigration detention centres are detained for flouting immigration laws and are not criminals, detention should be used as a last resort. If there is a need for them to be held for processing purposes, alternatives to detention must be explored such as those currently practiced in Australia, including community detention or case management[1].

Detention should not be the first option particularly when it comes to refugees, asylum seekers, stateless persons, children and trafficked victims. Refugees, asylum seekers, stateless persons and trafficked victims cannot be deported, and as such should be released.

3.      Security should not be the main concern
Based on news reports, it seems like the Government is more concerned about the security aspect of immigration detention centres rather than the welfare of the detainees. SUARAM is of the view that adequate attention must be given to fulfilling the basic rights of the detainees. These include providing clothing, bedding, adequate clean water, sufficient diet, on-site access to health care, personal sanitary supplies, and daily activities.

In line with these serious concerns, SUARAM calls on the Government to:

  • Stop the use of RELA in the management of immigration detention centres.
  • Stop the detention of refugees, asylum seekers, stateless persons, trafficked victims and children.
  • Explore alternatives to detention as a method to minimise the use of detention as first resort for those who have violated immigration laws.
  • Ensure that the Standard Operating Procedures (SOP) for the management of immigration detention centres complies with international human rights standards such as the UN Standard Minimum Rules for the Treatment of Prisoners and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
  • Hold regular consultations with civil society and stakeholders to openly discuss and receive recommendations on how to improve the management of immigration detention centres.

Released by,
Temme Lee
Coordinator

[1]International Detention Coalition (2009) “Case management as an alternative to immigration detention: The Australian Experience”, at http://idcoalition.org/wp-content/uploads/2009/06/casemanagementinaustralia.pdf, accessed 25 April 2010.

Press Statement: 21 June 2010 Gov’t Must Act Immediately on UN’s Call for the Repeal of Detention-without-Trial Laws and End to Detention of Refugees & Asylum Seekers

The initial findings and recommendations of the United Nations Working Group on Arbitrary Detention (WGAD) from its country visit to Malaysia from 7 to 18 June 2010 have added to the long list of recommendations and concerns pertaining to the Malaysian government’s legislations, policies and practices of arbitrary detention.

“Classic Cases of Arbitrary Detention” under ISA, EO, DDA, RRA
Among its initial findings of its visit, the WGAD stated that it is “seriously concerned” about the existence and enforcement of laws which provide for detention without trial in Malaysia, namely the Internal Security Act (ISA), the Emergency (Public Order and Prevention of Crime) Ordinance (EO), the Dangerous Drugs (Special Preventive Measures) Act (DDA), and the Restricted Residence Act (RRA).

The WGAD stated that these laws “deny the detainee the right to a fair and public hearing” and “severely restrict detainees’ access to legal counsel”.

During the press conference held by the WGAD on 18 June 2010, its Chairperson-Rapporteur El Hadji Malick Sow stated that detentions under the ISA, the EO, the DDA, and the RRA are “classic cases of arbitrary detention”. The WGAD also noted with concern that “thousands of people” are being detained under the EO and the DDA.

“Systematic” Detention of Refugees
Also of concern to the WGAD is the detention of refugees and asylum seekers. The WGAD’s Chairperson-Rapporteur described the detention of refugees as “systematic”, noting that even refugees who are in possession of identity cards issued by the United Nations High Commissioner for Refugees are not exempted from arrests and detentions.

Malaysia’s non-ratification of the 1951 Convention relating to the Status of Refugees and non-recognition of the status of refugees and asylum seekers have resulted in the detention of many refugees under immigration laws in Malaysia for their alleged “illegal presence” in Malaysian territory. The WGAD noted that detainees who have served prison sentences under immigration laws are often held in immigration detention centres for an indefinite period while awaiting deportation to their countries of origin.

Recommendations Not New, No Reason for Delay in Implementation
While the WGAD’s final report will only be submitted to the UN Human Rights Council in March 2011, its initial recommendations are clear enough for the government to make immediate efforts for improvements.

Furthermore,similar recommendations have already been made in the past by other bodies – such as the Human Rights Commission of Malaysia (SUHAKAM), the Royal Commission to Enhance the Operation and Management of the Royal Malaysian Police, and various UN member states. As such, there is no justification for the government not to implement the WGAD’s recommendations immediately, especially in view of its status as an elected member of the UN Human Rights Council. Moreover, since it was the Malaysian government that invited the WGAD for this visit, it must also be consistent with such commitment by implementing the recommendations made.

Repeal All Detention-without-Trial Laws
On detention-without-trial laws, the WGAD recommended that the ISA, the EO, the DDA, and the RRA be repealed. The WGAD further noted that even if these laws are not repealed, the government must ensure that they are amended to the extent that they are in conformity with Article 10 of the Universal Declaration of Human Rights. Article 10 of the Universal Declaration of Human Rights spells out the guarantees of the right of every individual to a fair trial.

In other words, even if the government wishes to amend the detention-without-trial laws instead of repealing them, the amendments must ensure that all persons must be accorded a fair trial before being detained. This effectively means that the government must end its practice of detaining
individuals without trial.

Hence, while the government has announced its intention to amend the ISA, the EO, and the DDA, any changes which will merely reduce the periods of detention – including the initial investigative period of detention (currently 60 days) and the subsequent detention order by the Home Ministry (currently 2 years) – would not adequately fulfill the recommendations of the WGAD.

SUARAM thus strongly calls upon the government to immediately re-look into the proposed amendments to all the detention-without-trial laws with additional consideration of the WGAD’s recommendations to do away with the practice of detaining individuals without trial. Ultimately, the ISA, the EO, the DDA, and the RRA must be repealed.

At the same time, the government should immediately end the arrests made under the detention-without-trial laws, and release all individuals who are currently detained under these laws or charge them in a fair and open court.

End Detention of Refugees, Asylum Seekers and Other Vulnerable Migrants On the detention of immigrants, the WGAD stated that “detention of immigrants should be decided upon by a court of law, on a case by case basis, and pursuant to clearly and exhaustively defined criteria in legislation”. The WGAD stressed that immigrants should have an effective remedy to challenge the necessity and legality of their detention at any time.

The WGAD also stressed that immigration detention should not be applied to refugees, asylum seekers and vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breast-feeding mothers, elderly persons, persons with disabilities, or people with serious and/or chronic physical or mental health problems.

The Malaysian government has also been urged by the WGAD to ratify the 1951 Convention relating to the Status of Refugees, a recommendation which has already been made on numerous occasions by SUHAKAM as well as UN member states during the Universal Periodic Review of Malaysia in February 2009.

SUARAM strongly urges the government to immediately implement these recommendations, especially in refraining from the arrests of refugees, asylum seekers and other vulnerable groups of migrants. The government should also immediately provide a concrete timeframe for the ratification of the 1951 Convention relating to the Status of Refugees.

Invite UN Experts in Other Areas Too
Lastly, while the WGAD expressed its gratitude towards the Malaysian government for its invitation which made the visit possible, and while being fully aware of the fact that the visit of the WGAD as well as other Special Procedures Mandate Holders of the UN Human Rights Council cannot be made without the host government’s invitation, SUARAM wishes to point out that the WGAD had in fact made a request for a country visit to Malaysia way back in 2008. It was only in early 2010 that the Malaysian government officially and publicly confirmed its acceptance of the WGAD’s request to visit Malaysia.

To date, the Malaysian government still has not responded to eight pending requests by other
Special Procedures Mandate Holders, namely the Special Rapporteur on Human Rights Defenders (request made in 2002); the Special Rapporteur on Indigenous Peoples (2005); the Special Rapporteur on Freedom of Religion (2006); the Special Rapporteur on the Human Rights of Migrants (2006); the Special Rapporteur on Human Rights and Counter-Terrorism (2005); the Independent Expert on Minority Issues (2007 and 2009); the Special Rapporteur on Racism (2008); and Special Rapporteur on the Independence of Judges and Lawyers (2009).

SUARAM therefore calls upon the Malaysian government to extend standing invitations to all Special Procedures Mandate Holders of the UN Human Rights Council, with particular urgency in responding to the eight mandate holders which have made requests for country visits to Malaysia.

Released by,
John Liu
Coordinator

Resume water supply at Lenggeng Immigration Detention Centre

(Press Statement: 14 June 2010 )

SUARAM has been informed that detainees at Lenggeng Immigration Detention Centre have been on a hunger strike since evening of Saturday, 12 June, as a protest against the lack of water supply in the detention centre. The hunger strike started when immigration officers denied the detainees drinking water when asked by the detainees. There has been no water supply at the detention centre for the past 5 days.

According to our source, there are an estimated 1,500 detainees at Lenggeng Immigration Detention Centre. The estimated 500 Burmese asylum seekers in the detention centre will continue the hunger strike until they are given access to the United Nations High Commissioner for Refugees (UNHCR).

SUARAM has previously expressed our deep concern with regards to the deplorable conditions of Immigration Detention Centres. This is not the first time that we have received complaints that water supply to detention centres is irregular and inadequate. Denying the detainees access to drinking water is an outrageous violation of a basic human right. Even persons in detention have fundamental right to adequate standard of living, which includes adequate and constant supply of water for consumption and maintenance of personal hygiene, as enshrined in Article 25 of the Universal Declaration of Human Rights.

Detainees at immigration detention centres often fall ill due to the poor conditions that often cause malnourishment and poor immune system amongst detainees. The non-supply of water, coupled with the deplorable conditions of the detention centres could potentially cause the increase the risk of illnesses amongst the individuals.

SUARAM demands that the Government immediately restores water supply to Lenggeng Immigration Detention Centre and to ensure that water supply to all detention centres are regular, adequate and clean. The Government must ensure that conditions in all detention centres comply with minimum international standards for places of detention.

SUARAM urges the Immigration Department to immediately provide the asylum seekers access to UNHCR and to allow the UNHCR to process their asylum claims. Upon verification of their asylum claims, the Government must immediately release the asylum seekers in to UNHCR’s official care.

Released by,
Temme Lee
Coordinator
Suara Rakyat Malaysia (SUARAM)