Australia and Malaysia sign asylum seeker deal

By Rebecca Devitt | 26 Jul 11

26 July 2011

Yesterday the Australian and Malaysian governments officially signed the agreement to send 800 asylum seekers to Malaysia in exchange for 4000 United Nation verified refugees. Human rights and refugee advocates have expressed concern that the agreement will not provide protection for those refugees going to Malaysia and is in breach of the Refugee Convention 1951.

The “people swap” agreement is designed to stop the flow of asylum seekers and send a message that “asylum seekers should not risk their lives in the hope of having their claims processed in Australia” according to Australian Prime Minister Julia Gillard. This is despite the fact that Australia only receives 2 per cent of asylum claims made in industrialised countries and takes in less asylum seekers then Germany and the UK.

Under the deal, the 800 asylum seekers sent to Malaysia will be afforded the right to work, and have access to education and healthcare services, unlike those migrants already there. However, human rights advocates have accused the Australian government of violating its international obligations under the refugee convention.  Phil Robertson from Human Rights Watch accused Australia of using “Malaysia as a dumping ground for boat people it does not want, and in the process walking away from its commitments to follow the Refugee Convention.”

Under the Malaysia deal, Australia is in breach of three of the five fundamental principles of the Refugee Convention including no mandatory detention unless for a limited time, the opportunity for refugees to work and safe guards for children and those who are vulnerable. According to the Asylum Seeker Resource Centre, the Refugee Convention is the only major UN human rights treaty that does not have an international supervisory body, meaning that when a country breaches the convention, there are no consequences for doing so.

Australia could also be in breach of its obligations under other international treaties including the International Covenant on Civil and Political Rights, the Covenant on the Rights of the Child and the Convention against Torture. Malaysia is not a party to the Refugee Convention and has a poor record when it comes to the treatment of refugees who suffer in cramped conditions, face caning and an increased risk of being returned to their country of origin, where they could face danger.

The deal, which came into effect midnight on Monday will see any asylum seekers who arrive in Australia sent to Malaysia for processing. The United Nations High Commissioner for Refugees (UNHCR) and the International Organisation for Migration (IOM) have been consulted and will assist in implementing the agreement, however the UNHCR has stated that the deal is inconsistent with the practice of allowing asylum seekers to be processed in the country in which they arrive. The UNHCR did acknowledge important protection safeguards made by Australia and Malaysia in the agreement including protection against arbitrary detention and the principle of family unity and the best interests of the child.

Prime Minister Gillard said the safeguards address concerns that some Australian’s may have stating “those sent to Malaysia will be treated with dignity and respect in accordance with human rights.” Nevertheless there are still serious doubts about the implementation of the agreement, with the president of the Australian Human Rights Commission Catherine Branson QC expressing concern about the treatment of children and the vulnerable.

“We have in mind, children, particularly unaccompanied, people who’ve been subject to torture and trauma, people who might need mental health or physical health care.” According to Ms Branson instead of processing asylum seekers in Malaysia, Australia “should process all applications for asylum on the Australian mainland under the Migration Act.”

The Law Council of Australia has also expressed its disappointment at the resettlement agreement, with the Law Council of Australia President, Mr Alexander Ward stating that the arrangement is not an appropriate solution to a complex problem. “The Law Council does not agree that the trade of asylum seekers for refugees is the solution to this substantial issue and we are very concerned over the shortcomings of this agreement and in particular a lack of detail about unaccompanied minors and legal assistance for transferees.”

The agreement has been hailed as bold and innovative by Immigration Minister Chris Bowen, who said the agreement sends a clear message that Malaysia and Australia are serious about stopping people smugglers.