APRRN Joint statement on the Australia – Malaysia refugee swap agreement

The Asia Pacific Refugee Rights Network is very concerned about the proposed Australia-Malaysia bilateral agreement under which Australia plans to transfer 800 individuals seeking asylum to Malaysia in return for resettling an additional 4,000 refugees from Malaysia over the next 4 years.

As civil society organisations working with refugees in the Asia Pacific region and committed to the advancement of refugee rights, we wish to express our opposition to this transfer. Although the final terms of the transfer remain unclear, it is likely to violate Australia’s obligations towards refugees and to lead to the violation of the rights of the individuals transferred to Malaysia. Furthermore, we are concerned about the role that UNHCR will play in this transfer.

 

AUSTRALIA’S OBLIGATIONS TO REFUGEES

 

Australia’s international obligations are engaged in relation to all asylum seekers who enter its territory or come within its effective control, including individuals interdicted by its vessels at sea.. These obligations stem from Australia’s treaty commitments under the Convention Relating to the Status of Refugees (“Refugee Convention”) and various international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Under the Refugee Convention Australia may not, generally speaking, transfer to another country any refugee who is lawfully present within Australian jurisdiction. Australia is also prohibited from transferring even those refugees who are not lawfully present where the transfer might result in their refoulement or a violation of the other rights to which they are entitled as refugees. These other rights include protection from discrimination; access to the courts; right to education; provision of identity documents; and, protection from punishment for illegal entry. Australia may also only lawfully transfer refugees to states where, over time, refugees may also gain access to the full range of social and economic rights to which they are entitled.

[blockquote class=”alignright”]Australia may also only transfer refugees to states where there are fair, effective and efficient procedures for the recognition of their status as refugees and appropriate reception conditions. Malaysia has no domestic process in place for the recognition of status.[/blockquote] Australia may also only transfer refugees to states where there are fair, effective and efficient procedures for the recognition of their status as refugees and appropriate reception conditions. Malaysia has no domestic process in place for the recognition of status. UNHCR’s process for recognizing status in Malaysia relies upon procedures which do not meet the minimum standards it sets for states. More specifically, UNHCR’s status determination procedures lack procedural fairness; do not adequately allow for representation by counsel; fail to provide for and often prohibit the disclosure of information or documents upon which the decision is made; do not require written reasons for decision; and, do not provide for an independent appeal mechanism. We are concerned that UNHCR’s status determination procedures may lead to the improper rejection of refugees. Also, UNHCR’s determination procedures do not result in any formal legal status in Malaysia.

Even if all of the foregoing requirements are met in general, any deal between Australia and Malaysia must provide individuals who are affected by the deal to with an opportunity, in an individual procedure, to rebut the presumption that he or she will receive protection in Malaysia. There may be circumstances peculiar to particular individuals that Australia seeks to transfer to Malaysia that may place them at risk in Malaysia even if the deal otherwise fulfills Australia’s international obligations.

MALAYSIA’S RECORD OF VIOLATING REFUGEE RIGHTS

It is deeply problematic that Malaysia is neither a party to the Refugee Convention nor does its domestic legal framework give legal recognition to refugees. This compromises the ability of refugees to claim their rights through domestic courts and is indicative of Malaysia’s indifference to the rights of refugees in Malaysia. Any good faith empirical assessment of Malaysia’s treatment of refugees must conclude that Malaysia regularly subjects refugees in Malaysia to numerous and severe rights violations, including arbitrary arrest; indefinite detention; unfair trial; cruel and inhuman punishment; expulsion; and refoulement.

Malaysia does not live up to its current obligations towards refugees. Based on past performance it is unlikely to live up to future obligations towards transferred refugees. For example, Malaysia has already been found in breach of its obligations under the Convention on the Elimination of Discrimination Against Women (CEDAW) to refugee women and under the Convention on the Rights of the Child (CRC) to refugee children. In addition, Malaysia neither fully cooperates with the United Nations High Commissioner for Refugees (UNHCR) nor fulfills its obligations to refugees under numerous labour treaties and customary international law. At a minimum, refugees transferred to Malaysia would need formal recognition of both their status and their rights under Malaysian law and meaningful access to domestic remedies for violations of their rights. This is not the case for any refugee in Malaysia at present and is unlikely to be the case for those transferred to Malaysia pursuant to the proposed deal.

Even if these minimum requirements were met, we remain concerned that the rights of refugees would be violated by the independent actions of local officials and police. International and domestic jurisprudence has regularly found that the “assurances” of states that have a past record of either the deliberate violation of rights or the inability to control officials who violate rights are manifestly unreliable.

UNHCR’S ROLE IN ENSURING INTERNATIONAL PROTECTION

Under the terms of its statute, UNHCR is mandated to provide for the international protection of refugees and, under Article 35(1) of the Refugee Convention, has the task of supervising the application of the rights of refugees in that treaty. We note that part of UNHCR’s core mandate is the promotion of “the admission of refugees, not excluding those in the most destitute categories, to the territories of States.” We call on UNHCR to campaign more vigorously for the admission to Australia of all refugees within the territory of Australia and intercepted on the high seas by Australia.

UNHCR has publicly outlined the criteria which should be considered in determining whether deals such as that between Australia and Malaysia are appropriate; the present deal satisfies none of these criteria. Furthermore, UNHCR has publicly outlined the legal standards and procedural safeguards that any deal between states to transfer must meet; the present deal does not appear likely to meet these standards and to include these safeguards.[blockquote class=”leftalign”]We insist that refugees in South East Asia and Australia have the same rights as those in Europe and that UNHCR has the same duty to oppose deals which will lead directly to the violation of these rights.[/blockquote]

UNHCR has recently intervened in human rights litigation in Europe opposing the transfer of refugees between Belgium and Greece. UNHCR based its objection to that transfer on its belief “it was still not the case that the reception of asylum seekers in Greece complied with human rights standards or that asylum seekers had access to fair consideration of their asylum applications or that refugees were effectively able to exercise their rights under the Geneva Convention.” All of these objections apply to the deal between Malaysia and Australia. We insist that refugees in South East Asia and Australia have the same rights as those in Europe and that UNHCR has the same duty to oppose deals which will lead directly to the violation of these rights.

It has been suggested that UNHCR should play a role in monitoring the deal. We believe that the ability of both UNHCR and other organisations, including civil society, to monitor the deal will require as a condition precedent unhindered access to the individuals affected by the deal. As with other deals to transfer refugees between states, we call on any monitoring by UNHCR to be continuous and published in full. Unfortunately, while we support a rigorous regime of monitoring, this will not automatically prevent or result in redress for any violations of rights.

We are further deeply concerned by the conflict of interest between UNHCR’s operational role in Malaysia and its potential supervisory and monitoring role with respect to the rights of refugees affected by the deal. Operationally, UNHCR conducts the determination of status of refugees in Malaysia that will be a key element of the deal. As noted earlier, UNHCR’s refugee status determination in Malaysia falls short of the standards it sets for states and lacks significant procedural safeguards. It is impossible for UNHCR to both conduct status determination and provide independent monitoring of the deal.

DEVELOPMENT OF BETTER REGIONAL POLICIES ON REFUGEES

The deal includes an agreement by Australia to resettle an additional 4,000 refugees from Malaysia. We support the resettlement of refugees from Malaysia and elsewhere in the region to Australia and recognize that the resettlement of refugees is a significant way in which Australia can share responsibility for refugee protection with other states of the region. The resettlement of refugees from Malaysia under the deal also implicitly recognizes that one of the principal determinants of refugee flows to Australia is the lack of protection available in the region.

We support mechanisms that will accomplish a more equitable distribution of the burdens of refugee protection amongst states in the South East Asian and Australasian regions. However, no ‘greater good’ can justify the violation of rights of refugees. Furthermore, such an approach, as exemplified by the Australia-Malaysia deal, will only result in temporary and illusory gains that will disappear once the self-interest of the states involved shifts.

While the transfer of refugees may occur lawfully in certain limited circumstances, the preconditions for such a transfer do not yet exist either between Australia and Malaysia or within the region more generally. Although the details of the deal remain incomplete, it is impossible to see how any deal could fulfill all of Australia, Malaysia or UNHCR’s obligations to refugees.

The more appropriate task of Australia, Malaysia and UNHCR is to build the infrastructure for refugee protection within the region by strengthening international commitments to the rights of refugees, domestic legal frameworks which guarantee the rights of refugees, and the practical ability of refugees in the region to access their rights and to remedies for violations of their rights. As civil society organisations dedicated to protecting the rights of refugees, we commit to working with any state or organisation seeking to realize these goals.

Signatures:

Name of organization Country
1 Myanmar Youth Knowledge Initiative Malaysia
2 Fahamu Refugee Programme UK
3 Malaysian Social Research Institute Malaysia
4 Thai Committee for Refugees Foundation Thailand
5 Inhured International Nepal
6 New Zealand National Refugee Network New Zealand
7 Korean Public Interest Lawyers Group Korea
8 Asylum Access Thailand Thailand
9 Advocates for Public Interest Law Korea
10 Migrant & Refugee Rights Project, UNSW Law School Australia
11 Christian Action Hong Kong
12 Khmer Kampuchea Krom Human Rights Association Cambodia
13 SUARAM Malaysia
14 SANRIM Sri Lanka
15 NANCEN Korea
16 CSLG/J. N. U. New Dehlhi India
17 The Other Media India
18 HRWG Indonesia
19 Inform Human Rights Documentation Centre Sri Lanka
20 Lawyers for Liberty Malaysia
21 The National Human Rights Society (HAKAM) Malaysia
22 Forum Asia Thailand
23 Health Equity Initiatives Malaysia
24 Ezra Ministries Tanzania Tanzania
25 WARBE Development Foundation Bangladesh
26 Tenaganita Malaysia
27 Women’s Aid Organisation Malaysia
28 Global Alliance Against Traffic in Women Thailand
29 Committee for Asian Women Thailand
30 Edmund Rice Centre Australia
31 Fundacion Arcoiris pro el respeto a la diversidad sexual Mexico
32 Malaysian Liaision Council Mexico
33 Migrant Forum in Asia Regional
34 Chin Human Rights Organization Canada
35 Kenya Refugee Network Kenya
36 3cr Radio Australia
37 Asylum Seeker Resource Centre Australia

38 Individual Korea
39 Individual Australia
40 Individual India
41 Individual Indonesia
42 Individual Thailand
43 Individual Egypt
44 Individual Myanmar
45 Individual Malaysia
46 Individual USA
47 Individual Malaysia
48 Individual Australia
49 Individual Australia

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