They went to Australia to seek asylum - but Australia, rather than processing their application, decided to 'export' - no, deport them - or rather 'dump' them back to Malaysia, and they did this vide an agreement signed between Australia and Malaysia, whereby Australia, on their part, agreed to accept 1,000 UNHCR recognized refugees per year for 4 years, from Malaysia.
Is Malaysia going into the business of accepting asylum seekers, being the processing center for those applying to be recognized refugees, and thereafter making arrangements for them who qualify to be placed in 3rd countries? What is most odd is that Malaysia does not recognize 'asylum seekers' and 'refugees' in law - and they lump asylum seekers and refugees into the category of 'illegal immigrants' (undocumented migrants) - and there is continuous active enforcement against these 'illegal immigrants' (undocumented migrants) who are arrested, detained, charged, convicted, whipped, deported...
Australia, on the other hand have an obligation as a member of the United Nations, to take in and accept refugees who will ultimately be their citizens. Australia has a duty to deal with asylum seekers in accordance to Australian law - but sadly, they have been doing all they can do to make sure that asylum seekers that arrive in Australia - never get to Australia or are detained elsewhere (not in Australia) and as such deprive these asylum seekers from being covered by Australian law - this new deal with Malaysia is just another such attempt.
Will these 'asylum seekers' from Australia be treated any differently from the other 100,000 over asylum seekers (or the 2 - 5 million undocumented migrants in Malaysia) in Malaysia? Malaysia's Federal Constitution guarantees equality to all persons (not just citizens) in Malaysia - so there cannot really be any preferential treatment to there 'asylum seekers from Australia'.
Will Australia be leasing a piece of land, and housing these asylum seekers. What happens to them if they do not refugee status? Will they be sent to our immigration authorities to be detained and deported back to their home country? Will Australia be paying for this? Remember, they never broke any Malaysian law - but now when Malaysia willingly accepts them, will they be treated of people who have broken Malaysian law? Is not Malaysian government a willing party in the breaking of Malaysian law? Do they want to come to Malaysia? Or are they unwillingly sent by Australia to Malaysia - is this not 'trafficking in human persons'? Are not Australia and Malaysia 'human traffickers' in this instance? If they do consent, will not the bringing of these persons who do not have a valid passport/travel documents 'human smuggling'?
At the end of the day, it is sad that both the Malaysian and Australian government seem to forget that they are dealing with human persons - not commodities(to be imported and exported) as part of some agreement which the said asylum seekers are just not parties to?
Really, Malaysia needs to enact a law that clearly acknowledges asylum seekers and refugees, that sets out clear procedures of dealing with them, and also their rights when they are in Malaysia applying for asylum or refugee status.
Related posts in this blog:-
Australian Parliament condemns Malaysian-Australian asylum-refugee swap dealHow can Malaysia arrest and detain persons who never broke Malaysian laws?
800 Australian asylum seeker brought into Malaysia to be detained in Semenyih - Is this legal?
The trade of asylum seekers for refugees between Malaysia and Australia (Law Council of Australia)
Press Release (28 July 2011)
Asylum Swap Deal & the 60th Year Anniversary of the 1951 Refugee Convention:
Ratify First, Arrange Later
Today, 28th of July, 2011, will mark the 60th year anniversary of the 1951 Refugee Convention - the first and main international agreement that protects the fundamental rights of refugees across the world. 142 nations have ratified the convention. This number does not include Malaysia.
Asylum Swap deal signed
On Monday, 25th June 2011, Australian and Malaysian governments together signed the controversial asylum swap deal. The deal to send 800 asylum seekers to Malaysia in return for 4,000 recognized refugees to Australia comes into effect immediately at midnight.
As a human rights organization, SUARAM strongly condemns the decision to continue the deal, which is constantly criticized by additional various quarters including the UN as well as Malaysian and Australian activists.
SUARAM is of the view that this is a gross denial of freedom and the right to seek asylum in Australia, a country that is signatory to the 1951 Refugee Convention. SUARAM rejects the elucidation that this deal would be a win-win situation for the both governments and a total loss for the smugglers. What about the subjects involved (asylum seekers or transferees)? Do the governments believe this deal will benefit them (asylum seekers)? Do they think this deal will confine asylum seekers to a boat sailing to Australia? This deal does not meet its justification of stopping human trafficking and the smuggling business model.
The failure to look into human rights principles
SUARAM believes that the failure to take into consideration human rights principles is the most crucial and overlooked element in the arrangement. Poor human rights protection has been encouraging asylum seekers to flee from Malaysia and sometimes use whatever means they deem necessary to seek protection.
Both governments must respect the rights of all individuals seeking asylum in Australia and not gamble their fates by transferring them to Malaysia, a country that has not ratified the 1951 Refugee Convention. The failure to look into human rights principles may lead to the failure to consider those on the losing end: the asylum seekers who will be transferred to Malaysia.
Verbal commitment, insubstantial pact
Ministers Hishamuddin Hussein and his Australian counterpart, Chris Bowen had both officially signed the agreement promising that the 800 asylum seekers will be treated in “dignity” and “respect”. This included their rights to work, access to education and health care, and freedom to move. At the same time, the details of the agreement do not ensure any concrete proposal to enforce the guarantees and promises made by the ministers. If the official arrangement does not guarantee concrete protection to the 800 asylum seekers, how can a verbal commitment claim to ensure concrete protection to the 800 asylum seekers? We believe that these 800 asylum seekers will melt into the 100,000 refugees who suffer and enjoy almost “zero” tolerance and fundamental rights protection.
Ratify first, arrange later
Until now, Malaysia has showed no intention of ratifying the 1951 Refugee Convention and its 1967 Protocol. Yet Malaysia is interested getting involved with refugee-related arrangements such as the asylum swap.
Malaysia maintains a blanket policy that all undocumented migrants including refugees and asylum seekers are considered illegal migrants. As such, they can be arrested, deported, and even punished by judicial caning under the immigration act.
SUARAM urges the Malaysian government to first ratify the 1951 Refugee Convention and/or at least to develop an effective domestic act and administrative mechanisms before dealing with any arrangements regarding refugees and asylum seekers.
Why should Malaysia ratify?
SUARAM launched its campaign to urge the Malaysian government to ratify the 1951 Refugee Convention in May 2011. In conjunction with the 60th year anniversary of the convention on 28th July, we once again urge the government to ratify it in order to provide legal protection and promotion of the fundamental rights of the refugees in accordance with internationally recognized legal and humanitarian standards.
Ratification would also demonstrate the Malaysian government’s commitment for genuine “burden sharing” in handling global issues: developing effective administration and cooperation with UNHCR, reducing the capacity of immigration detention centres, as well as supporting the lack of human resources in various domestic sectors in Malaysia.
Released by,
Andika Wahab
Refugee Coordinator
Suara Rakyat Malaysia (SUARAM)
0163723699
Australia, Malaysia: Refugee Swap Fails Protection Standards
‘Arrangement’ Opts For Burden Shifting Over Burden Sharing
(Bangkok, July 27, 2011) – Australia and Malaysia’s agreement to swap 800 asylum seekers who arrive in Australia for 4,000 refugees living in Malaysia fails to meet minimal standards for refugee burden-sharing, Human Rights Watch said today in a letter to both countries’ prime ministers. The Arrangement between Australia and Malaysia on Transfer and Resettlement was signed on July 25, 2011.
“The refugee swap agreement should have been rejected outright because Malaysia is not a party to the Refugee Convention and has no refugee law or procedure,” said Bill Frelick, refugee program director at Human Rights Watch. “The gap in the treatment of refugees and asylum seekers between Australia and Malaysia remains enormous.”
In its letter, Human Rights Watch said that the failure of one of the two parties to accept the obligations established by the most relevant treaty regarding refugees and to apply customary standards demonstrates the hollowness of the agreement.
The protection and education of refugee children are of particular concern under the agreement, Human Rights Watch said. The agreement says nothing about “best interest” determinations or other basic principles of protection for unaccompanied children under international law, only that special procedures “will be developed.”
“The agreement ignores the special needs of unaccompanied children,” Frelick said. “Saying that implementing procedures will come later is no excuse for failing to spell out basic principles in the agreement itself.”
The agreement also says that school-age children will be permitted access to “private education,” but adds that if “such arrangements are not available or affordable” the children should have access to “informal education.” Neither private education nor informal education meet the standards for the right to free and compulsory primary education in the Convention on the Rights of the Child, to which both Australia and Malaysia are parties.
Australia’s willingness to admit 4,000 more refugees for permanent resettlement was potentially a great humanitarian benefit, Human Rights Watch said. But it urged the Australian government to separate that agreement from a deal that would deflect people seeking asylum in Australia to another country.
Malaysia’s willingness to recognize a group of asylum seekers as being lawfully present was also a positive development, Human Rights Watch said. However, creating an exception for 800 “swapped” people while 90,000 other refugees and asylum seekers in Malaysia remain “illegal migrants” subject to deportation is unacceptable, Human Rights Watch said.
“Unfortunately, the Australia-Malaysia refugee swap agreement is more about burden shirking than burden sharing,” Frelick said.
For more information on the Australia-Malaysia refugee swap, please see:- The May 26, 2011 letter to Prime Minister Gillard: http://www.hrw.org/en/news/2011/05/26/letter-prime-minister-gillard-regarding-refugeeasylum-seeker-exchange-agreement-mala
- The June 13, 2011 letter to Prime Minister Najib: http://www.hrw.org/en/news/2011/06/13/letter-prime-minister-najib-razak-regarding-refugeeasylum-seeker-exchange-agreement-
- The June 13, 2011 letter to UN High Commissioner for Refugees Guterres: http://www.hrw.org/en/news/2011/06/13/letter-unhcr-regarding-refugeeasylum-seeker-exchange-agreement-between-australia-and
For more Human Rights Watch reporting on Malaysia, please visit:
http://www.hrw.org/en/asia/malaysia
For more Human Rights Watch reporting on Australia, please visit:
http://www.hrw.org/en/asia/australia
For more information, please contact:
In Washington, DC, Bill Frelick (English): +;1 202 612 6344; or +;1 240 593 1747 (mobile); or frelic@hrw.org
In Bangkok, Phil Robertson (English, Thai): +66-85-060-8406 (mobile); or robertp@hrw.org
IOM Witnesses Australia-Malaysia Asylum Seeker Swap Agreement http://www.iom.int/jahia/Jahia/media/press-briefing-notes/pbnAS/cache/offonce/lang/en?entryId=30100
IOM yesterday witnessed the signing of an agreement between Australia and Malaysia designed to combat people smuggling and discourage asylum seekers from risking their lives in small boats to reach Australia.
Under the agreement, which was signed by Malaysian Home Affairs Minister Dato' Seri Hishamuddin bin Tun Hussein and Australian Immigration Minister Chris Bowen in Kuala Lumpur, over the next four years Malaysia will send 4,000 recognized refugees to be resettled in Australia, and Australia will send 800 newly arrived "boat people" to Malaysia, where their asylum claims will be processed.
IOM will play an important role in helping both nations to implement the agreement, notably by facilitating the movement of the 4,000 refugees from Malaysia to Australia.
"We already move around 7,000 mainly Burmese refugees every year from Malaysia. These are people who are referred by UNHCR and accepted for resettlement by third countries. This deal will increase our caseload by about 1,000 people a year for the next four years - something that we welcome," says IOM Malaysia Head of Office Valerie Dourdin-Fernandez.
IOM provides medical screening, cultural orientation and makes all the necessary travel arrangements for refugees leaving Malaysia to start new lives abroad.
IOM is also planning to expand its activities in Malaysia, in close collaboration with the government and UNHCR, to help Malaysia to provide adequate care and maintenance for the 800 "transferees" arriving from Australia.
"We are currently looking into ways to complement services already provided by UNHCR, NGOs and the government to ensure that these people's stay in Malaysia is safe and dignified," says Dourdin-Fernandez.
The services will include an option that will allow any transferee who decides to abandon his or her asylum claim to voluntarily return home to their country of origin with IOM. IOM will arrange travel documents, air tickets, exit permits and, depending on the destination country, reintegration assistance.
IOM doctors will also screen new arrivals at a Malaysian government reception facility to identify vulnerable individuals who may need special help.
Transferees will be expected to move out of the reception facility and into the community after a maximum of six weeks and IOM is looking into how it can help them to find affordable housing, health care, jobs and education for their children.
For more information please contact Chris Lom at IOM's Regional Office for Asia & the Pacific in Bangkok, Tel: +66.819275215, Email: clom@iom.int
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