Burma-Malaysia detainee swap absurd and unacceptable

Under Mahathir, I believe that Malaysia was certainly more caring and would not send back Burmese in Malaysia back to Burma because everyone understood the persecution and conditions in Burma  under the ruling regime - and knew that most Burmese in Malaysia, save for maybe those that came as documented migrant workers, are really refugees or asylum seekers in fact.

So, even when people from Burma were arrested and detained by reason of being 'undocumented', Malaysia did not deport them back to Burma as was being done with nationals of other countries. Malaysia took them to the Thai-Malaysia border and released them...and most of them would not go back to Burma, but stay in Thailand or just cross back into Malaysia. The preferential treatment accorded to people was Burma was just an understanding of Malaysia that it would be very wrong and unjust to just hand them who flee persecution of regime that has refused to even hand over to democratically elected Aung San Su Kyi and her party (we are not talking of that recent 'election' which really is a sham).

A few years ago, some highlighted that some immigration officers involved in the 'deportation exercise' of Burmese migrants at the Thai-Malaysian border were allegedly involved in the 'human trafficking' trade - and the victims were these migrants from Burma - Lot of attention - lot of protest. Malaysia then stopped this practice or 'special treatment' of migrants from Burma, and resorted to the same treatment - but the Burmese regime was not as enthusiastic to get their people back to Burma as other countries, and likewise many persons in detention were not at all wanting to go back to Burma (can we really blame them?) - and the Malaysian government also was not really pushing....End result was that the Burmese numbers in detention increased - and now they may be the largest number in many immigration detention centers..

Suddenly, the Malaysian government seem to have become less caring and is talking about a detainee swap deal with Burma...

This, not only, is shocking but will shatter Malaysia's image locally and internationally - this is Burma that we are talking about.... 

Prisoner exchanges - when a person breaks a law in a country - he is tried, convicted and sentenced according to the laws of that country, so taking Malaysians serving their sentence in another country to serve the remaining prison sentence is really not right, is it. Remember we are not talking about 'prisoner of war' exchanges between 2 countries at war (or were at war).... so we have to be very careful when it comes to taking a position on things like this 'detainee swap' deals...

Outcry over Myanmar-Msia detainee swap

Stephanie Sta Maria | October 18, 2011 (Free Malaysia Today)

Sending detainees back to Myanmar is akin to sending them to their possible deaths, says Human rights groups.

 

PETALING JAYA: Human rights advocates and the Myanmar community are reeling from the government’s proposal of a detainee swap between Malaysia and Myanmar.

Home Minister Hishammuddin Hussein met with Myanmar deputy foreign minister U Maung Myint in Parliament yesterday after which the proposal was announced.

The move is to reduce the number of Myanmar detainees currently in detention centres here.

The news has sent shockwaves through the Myanmar community here especially among those whose friends and family are among the 1,000 Myanmar detainees.

The Shan Refugees Organisation (SRO) has called it “terrible news” and is frantically trying to gather as much details as possible on the issue.

“It’s not supposed to be this way,” said an SRO spokesperson who asked to remain anonymous. “The possibility of persecution is awaiting those who are sent back.”

While Hishammudin said details will be discussed when the newly formed working committee between both governments meet next week, the SRO said it would be perilous to wait that long.

“We cannot afford to wait until a concrete decision is made,” said the spokesperson. “We will be meeting NGOs including Suaram, Tenaganita and the Bar Council to seek advice over the matter.”

Suaram backed up SRO’s point that sending the detainees back to their homeland was to return them to the danger from which they had fled in the first place.

“By sending them back Malaysia is giving recognition to the cruellest, most undemocratic and tyrannical regime in the region,” Suaram coordinator, Andika Abdul Wahab, told FMT.

“It’s a breach of the international customary law of non-refoulement which prohibits the return of people to places where they may face persecution or threats to their life or freedoms.”

‘End barbaric treatment of detainess’

Andika warned that following through on this proposal would bring great shame to Malaysia as a founder of ASEAN and a member of the UN Human Rights Council (UNHCR).

With such a standing, he said, Malaysia should instead be leading Myanmar in showing respect for human rights rather than endangering human lives.

Andika also dismissed Myanmar’s recent release of 120 out of 6,000 prisoners as non-reflective of human rights, freedom and peace being restored there.

“Myanmar’s on-going civil wars have forced its people to seek international protection outside the country,” he said. “As such a majority of Myanmar detainees could be refugees.”

“We urge the Malaysian government to drop the proposal and allow UNHCR immediate access to detention centres in order process asylum claims and release the genuine refugees.”

The Human Rights Watch (HRW) also had stern words for the proposal. Its deputy director for Asia, Phil Robertson, pointed out that despite the various indications of political progress in Myanmar, its government continues to abuse ethnic minorities and political dissidents.

“Before jumping forward with yet another poorly thought out swap scheme Hishammudin should publicly commit that all Myanmar detainees will be given the right to make a refugee claim if they fear being prosecuted in their country,” he said. “And the UNHCR must be given unfettered access to adjudicate those claims.”

Robertson added that if the Myanmar government really wanted to protect its nationals, then it should demand that Malaysia immediately cease caning male migrants held for violating immigration laws.

“Caning is a form of torture and the Myanmar government should call for an end to this barbaric treatment of its citizens,” he stated - Free Malaysia Today, 18/10/2011,Outcry over Myanmar-Msia detainee swap

Tuesday October 18, 2011

Myanmar and Malaysia to swap detainees

AT THE DEWAN RAKYAT
Reports by MARTIN CARVALHO, YUEN MEIKENG, RAHIMY RAHIM and CALVIN YEO

MYANMAR illegals held at Immigration depots will be sent back home in a detainee exchange programme.

Home Minister Datuk Seri Hishammuddin Hussein said the programme would also see Malaysians detained in Myanmar returning to the country.

“There are currently 1,000-odd Myanmar nationals detained in the depots. But the number to be sent back has yet to be confirmed.

“Officials from both countries will be meeting next week to start working on the details of the exchange,” he told reporters after meeting Myanmar deputy foreign minister U Maung Myint in Parliament.

Hishammuddin also said that he could not confirm the number of Malaysians to be sent back from Myanmar.

He said the joint initiative would reduce crowding in the depots and showed the close relationship between both countries.

“If we can carry out such an exchange with Myanmar, I don’t see why we can’t do the same with other countries,” Hishammuddin said.

He added that Myanmar nationals were the third highest number of immigrants registered under the ministry’s 6P programme, with a total of 257,000 in Malaysia.

A total of 2.3 million foreigners registered under the programme, of which 1.3 million were illegals.

Hishammuddin said the detainee exchange programme was important in principle as it could help combat crime across borders, among other benefits.

“We have also set up a joint working committee with Myanmar to discuss issues of concern periodically,” he said, adding that the committee would consist of relevant agencies.

On the refugee swap deal with Australia, Hishammuddin said the ministry would be meeting with Australian authorities to discuss the matter next month.Star, 18/10/2011, , Myanmar and Malaysia to swap detainees

October 17, 2011 17:10 PM

Malaysia, Myanmar Eye Swapping Immigration Detainees

 

KUALA LUMPUR, Oct 17 (Bernama) -- Malaysia and Myanmar are mulling over the possibility of implementing an exchange programme for immigration detainees, said Home Minister Datuk Seri Hishammuddin Tun Hussein.

He said there were currently around 1,000 Myanmar nationals at detention centres in this country. However, the number of Malaysian immigration detainees in Myanmar was not made available.

"It'll help reduce the numbers in our detention camps and show a good relationship between Malaysia and Myanmar in relation to immigration and movement of workers in the region," he told reporters after receiving Myanmar's Deputy Foreign Minister U Maung Myint (HE) here, today.

About 257,000 Myanmar nationals had registered under the "6P" programme, of which 144,098 were illegals immigrants. The programme is a massive legalisation and amnesty exercise for illegal immigrants conducted by Malaysian authorities.

"Since not all of them (Myanmar illegal immigants) will be employed, cooperation between both countries is important to ensure that the repatriation process runs smoothly," Hishammuddin said.

Hishammuddin said Malaysia and Myanmar would establish a joint working committee to address immigration as well as crime-related issues involving the two countries. It is expected to hold its first meeting next week.

Elaborating, the minister said Kuala Lumpur would cooperate closely with Myanmar to tackle cross-border crimes involving drugs, weapons and human trafficking.

"The issue of fraudulent travel documents is also in our focus, with 46 cases involving Myanmar nationals detected last year as well as 13 cases up till August this year," Hishammuddin said. -- BERNAMA, 17/10/2011, Malaysia, Myanmar Eye Swapping Immigration Detainees 

 

 

Some civil society gropups have responded vide a Joint Media Statement

PRESS STATEMENT

CONCERNS OVER IMMIGRATION RELATED DEVELOPMENTS THAT JEOPARDIZE THE SECURITY OF REFUGEES AND ASYLUM SEEKERS IN MALAYSIA

We, the undersigned organizations who work closely with refugees and asylum seekers from Burma living in Malaysia, express our deep concern over two recent immigration related developments that jeopardize­­ the security of refugees and asylum seekers in Malaysia.

Firstly, whilst we laud the government for considering the issue of over-crowding at the detention centres, the detainee swap initiative between the Malaysian and Burmese government is not the appropriate solution to the problem.  In fact, it could potentially  put the lives of refugee and asylum seeker detainees at risk.

Ethnic and religious minorities in Burma have been experiencing ongoing persecution leading to the exodus of several hundreds of thousands of people  over the past twenty years fleeing oppressive conditions of forced labor, confiscation of lands/homes, systematic rape, torture and other forms of religious and ethnic persecution.  The majority of the population from Burma in Malaysia are persons fleeing such persecution.

Under the Malaysian Immigration Act 1959/1963, refugees and asylum seekers too are detained in immigration detention centres. Unlike migrants, refugees and asylum seekers have a well-founded fear of persecution in their homeland; hence they flee their country of origin and cannot return home. The principle of non-refoulement in  Article 33 (1) of the 1951 Refugee Convention states that: "No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion." The deportation arising from the swap with Burma  for immigration detainees  contravenes this principle because of  the presence of detainees in detention centres who are potentially refugees and asylum seekers.

Secondly, during the registration of the 6P programme, it was highlighted that some refugee applicants received a “Slip Pendaftaran PATI,” which contained a line that said “Tujuan :Pulang ke Negara Asal” (Intention: Return to Home Country). This is despite the fact that they are refugees who are recognized by UNHCR. We call on the government to immediately rectify this error to prevent refugees from being refouled. We urge the government to recognize that any registration of refugees must be done in full collaboration with UNHCR, within a framework that will recognize and protect the rights of refugees.

We therefore call on the government to:

 

1.       Work in close collaboration with UNHCR to ascertain and immediately release individuals who are refugees and especially asylum seekers who have yet to lodge an asylum claim with UNHCR in the detention centres.

 

2.       Provide access to lawyers and NGOs to detention centres to represent detainees who seek to lodge an asylum claim.

 

3.       Immediately rectify the errors in the 6P registration process of refugees and asylum seekers and cooperate fully with UNHCR to establish a framework for the recognition of the rights refugees. 

Endorsed by:

1. Health Equity Initiatives (HEI)

2. Lawyers for Liberty (LFL)

3. Women's Aid Organisation (WAO)

4. Tenaganita

5. SUARAM

6. Malaysian Social Research Institute (MSRI)

BAR: Government action against human trafficking must be grounded in rule of law

Press Release

 

Government action against human trafficking must be grounded in rule of law

The Malaysian Government has responded to the decision of the High Court of Australia to declare invalid the so-called “refugee swap deal” by insisting that the arrangement was, “the best way to tackle the menace of people traffickers in a way that protects the interests of Australia, Malaysia and, above all, the immigrants involved”.

If protecting the interests of the immigrants involved is indeed the goal, the Malaysian Bar then questions the decision of the Malaysian Government to deport 11 Chinese nationals of Uighur ethnicity back to China on 18 August 2011.  According to Minister of Home Affairs Dato’ Seri Hishammuddin Tun Hussein, these 11 Uighurs were involved in human trafficking and were wanted by the Chinese Government.

This action is questionable, given that we have an Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 that is capable of dealing with foreign nationals allegedly involved in people trafficking or migrant smuggling.  There was no pressing need for the Malaysian Government to deport the 11 Uighurs back to China if it genuinely wanted to address the issue of people trafficking or migrant smuggling.  They should have been prosecuted here instead, and their victims of human trafficking safeguarded in Malaysia.  However, they have been deported to China, and nothing has been heard about protecting their human trafficking victims.  There is also no information about the whereabouts of the 11 Uighurs, what has happened to them, or indeed whether or not they are still alive.  One of the 11 is married to a Malaysian.

In the Australian situation, the Malaysian Government wanted to have an arrangement with the Australian Government even though Malaysia did not have the requisite legal regime.  In the Chinese situation, even though the necessary legislation is in place, the Malaysian Government chose instead to relinquish legal jurisdiction over the 11 Uighurs and hand them back to China.  The inconsistent actions raise questions about the purpose and motive of the act of deportation. 

The Uighurs, who are predominantly Muslim, rebelled against Chinese Government rule in their native Xinjiang Province in July 2009.  From that perspective, the deportation of the 11 Uighurs back to China raises grave concerns whether the Malaysian Government refouled potential refugees or asylum seekers in violation of international law.  We are given to understand that the Office of the United Nations High Commissioner for Refugees in Kuala Lumpur was denied access to these 11 Uighurs and was therefore unable to ascertain whether they were in a position to make an asylum claim.  

This follows the decision by the Malaysian Government to release eight immigration officials who were said to have been involved in a human trafficking ring.  These officers were arrested under the Internal Security Act 1960 in October 2010 and then subsequently released in August 2011 without charge.  Again, nothing has been mentioned about protecting their human trafficking victims.  By its very failure to take further legal action, the Malaysian Government is placing in jeopardy its integrity in respect of human trafficking.

The public is left with little choice than to view the Malaysian Government’s dithering action in respect of human trafficking as being dictated more by foreign and domestic political considerations rather than a sincere desire to do what is right.  

Lim Chee Wee

President

Malaysian Bar

 

2 Sept 2011

Australian High Court decision uphold human rights for Australian asylum seekers

The Australian High Court Judgment is to be found below...first read the report in the Australian media.

You can also follow this link to The High Court's judgment

1)   The country must be legally bound by international law or its own domestic law to: 
2)   provide access for asylum seekers to effective procedures for assessing their need for protection; 
3)   provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country. 

In addition to these criteria, .... that the country meet certain human rights standards in providing that protection.

It is time for Malaysia to enact laws for the recognition of refugees and asylum seekers - in which there would also be clear provisions how Malaysia will deal with people who come to Malaysia claiming refugee status...or political/social/economic/... asylum status.

Better still if Malaysia could ratify the UN Declaration and related conventions on refugees, maybe even migrant workers and their families - but Malaysia, really is not likely to do this - so the very least that Malaysia should do is to have its own laws to deal with refugees/asylum seekers...

No deal: High Court kills off Malaysian asylum seeker plan

• By Malcolm Farr, National Political Editor
• From: news.com.au
• August 31, 2011 6:28PM

The ruling could spell the end of the government's plans for off-shore processing. Picture: Stephen Cooper Source: The Daily Telegraph

 

THE High Court has vetoed the Malaysian asylum seeker swap in a ruling that has smashed the Government's entire strategy to halt people smugglers.

It also could spell the end of its plans to set up any off-shore processing of refugee applications.

The Full Bench, in an expedited judgment, found by six to one that Malaysia was not bound to look after the human rights of the 400 asylum seekers now under Australian care.

It found Immigration Minister Chris Bowen could not declare Malaysia to be a country where people could be sent to be processed as refugees.

The court ruled that no country could receive asylum seekers from Australia unless it was legally bound by international law or its own domestic law to provide access for asylum seekers to protection pending processing of their applications for refugee status.

Malaysia is not a signatory of the United Nations conventions on refugees.

“Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims,'' said a statement from the court.

“After an expedited hearing before the Full Bench, the court by majority made permanent the injunctions that had been granted earlier and restrained the minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.''

The matter came before the nation's superior court after an application made on behalf of a 16-year-old boy and a 24-year-old Afghan man who, their lawyer said, were petrified with fear about being sent to Malaysia.

The High Court spent a day-and-a-half considering the issue before reserving its ruling until today.

One issue raised by the legal team for the detainees on Christmas Island was the ability of Australia to guarantee the human rights of the 800 asylum seekers sent to Malaysia.

Commonwealth Solicitor-General Steven Gagler told the court the agreement and declaration of Malaysia as a suitable destination was legal and met the obligations Australia has under the UN refugee convention.

Liberal immigration spokesman Scott Morrison said before the ruling was handed down that a victory for the Government would not mean endorsement of the merits of the swap deal.

“If the Government is successful today in the High Court then that would basically just be an acknowledgment by the court that the minister has the power to make this decision,'' Mr Morrison told ABC Radio.

“It won't be any reflection of whether it's a good policy or a bad policy or whether it's a policy that provides protection to refugees. It will simply be a decision by the court about the minister's powers under the act."

Mr Morrison later called the ruling “a devastating blow for a grossly incompetent government’’.

“This is part of a continuing pattern of failure from a Government that just can’t get anything right,’’ Mr Morrison said.

Legal experts said the Government’s only option might be to change legislation, but it would be unlikely to get the backing of the Greens and Liberals to pass legal changes.

“It’s difficult to see how this situation could be rectified,’’ ANU law professor Penny Matthews told SkyNews.

“Malaysia would have to become party to relevant treaties in an awful hurry and they are not necessarily going to do that.

“So I think this means it’s the end of the Malaysian swap.’’

Prof Matthews said the Government might be able to continue with plans to set up a processing centre on Papua-New Guinea’s Manus Island if it can overcome the country’s approach to human rights.

“With Papua-New Guinea it is a party to the refugee convention although it does have significant reservations,’’ she said.

“When countries become party to a treaty they can say there are certain provisions they will not abide by.

“So Papua-New Guinea for example has significant reservations about the right to liberty in the refugee convention.’’

The Opposition denies the decision would also undermine its chief option of re-opening the detention centre in Nauru.

The court was specific about that in their commentary in the judgement, and Nauru is set to sign the convention, Mr Morrison told news.com.au.

Immigration Minister Chris Bowen this afternoon said people smugglers will capitalise on the court decision.

He said the High Court had applied “a new test to how protection should be demonstrated''.

“Clearly, that is something that had not been understood before,'' he said, defending the Government's legal advice.

Mr Bowen declined to rule out sending people to Nauru but said urgent legal advice was needed with regard to other off-shore processing proposals.

He added it “is a significant blow'' to the Government's efforts to stop people smugglers, who had been in retreat since the Malaysian plan was announced on May 7.

“You can expect people smugglers to be capitalising on this arrangement, and to say, You can come to Australia now because the Malaysia agreement has been ruled invalid by the High Court,'' the minister told reporters.

He said Cabinet would consider the fate of the 330 boat people who were to have been sent to Malaysia.

Australia will take all the 4000 processed refugees to come from Malaysia, but might reduce the overall humanitarian intake to fit them in.

“I have a responsibility to see this job through,'' said Mr Bowen.

“It's a difficult job. It's perhaps, it would be fair to say, the hardest job I've ever done.

Read more: http://www.news.com.au/national/high-court-rules-malaysian-swap-deal-unlawful/story-e6frfkvr-1226126528979#ixzz1WbDkdVmW

31 August 2011

PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

PLAINTIFF M106 OF 2011 BY HIS LITIGATION GUARDIAN, PLAINTIFF M70/2011 v MINISTER FOR IMMIGRATION AND CITIZENSHIP

Today the High Court held invalid the Minister for Immigration and Citizenship's declaration of Malaysia as a country to which asylum seekers who entered Australia at Christmas Island can be taken for processing of their asylum claims.  After an expedited hearing before the Full Bench, the Court by majority made permanent the injunctions that had been granted earlier and restrained the Minister from taking to Malaysia two asylum seekers who arrived at Christmas Island, as part of a larger group, less than four weeks ago.

The Court also decided that an unaccompanied asylum seeker who is under 18 years of age may not lawfully be taken from Australia without the Minister's written consent under the Immigration (Guardianship of Children) Act 1946 (Cth).  The Court granted an injunction restraining the Minister from removing the second plaintiff, an Afghan citizen aged 16, from Australia without that consent.

The Court held that, under s 198A of the Migration Act 1958 (Cth), the Minister cannot validly declare a country (as a country to which asylum seekers can be taken for processing) unless that country is legally bound to meet three criteria.; The country must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country.  In addition to these criteria, the Migration Act requires that the country meet certain human rights standards in providing that protection.

The Court also held that the Minister has no other power under the Migration Act to remove from Australia asylum seekers whose claims for protection have not been determined.  They can only be taken to a country validly declared under s 198A to be a country that provides the access and the protections and meets the standards described above.  The general powers of removal of "unlawful non-citizens" given by the Migration Act (in particular s 198) cannot be used when the Migration Act has made specific provision for the taking of asylum seekers who are offshore entry persons and whose claims have not been processed to another country, and has specified particular statutory criteria that the country of removal must meet.

On the facts which the parties had agreed, the Court held that Malaysia is not legally bound to provide the access and protections the Migration Act requires for a valid declaration.  Malaysia is not a party to the Refugees Convention or its Protocol.  The Arrangement which the Minister signed with the Malaysian Minister for Home Affairs on 25 July 2011 said expressly that it was not legally binding.  The parties agreed that Malaysia is not legally bound to, and does not, recognise the status of refugee in its domestic law.  They agreed that Malaysia does not itself undertake any activities related to the reception, registration, documentation or status determination of asylum seekers and refugees.  Rather, the parties agreed, Malaysia permits the United Nations High Commissioner for Refugees ("UNHCR") to undertake those activities in Malaysia and allows asylum seekers to remain in Malaysia while UNHCR does so. 

The Court emphasised that, in deciding whether the Minister's declaration of Malaysia was valid, it expressed no view about whether Malaysia in fact meets relevant human rights standards in dealing with asylum seekers or refugees or whether asylum seekers in that country are treated fairly or appropriately.  The Court's decision was based upon the criteria which the Minister must apply before he could make a declaration under s 198A.

This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court’s reasons.

High Court puts brakes on first sending of 'Australian asylum seekers' to Malaysia

They went to Australia, not Malaysia, to seek asylum - but Australia made a deal to 'export' these asylum seekers to Malaysia - and Malaysia accepted them. But, then these 'Australian asylum seekers' will be treated like 'undocumented migrants' in Malaysia. But they never broke any Malaysian laws - and the Malaysian government has openly arranged for their coming and stay in Malaysia - they are 'legal' guests - and Malaysia really cannot use any of their immigration laws against these people, can they? So, what will these 'Australian Asylum Seekers' become when they arrive in Malaysia - Permanent Residents ?  Malaysian citizens? - for certainly the government cannot define this group as 'illegal immigrants' - for they did not 'illegally' enter the country or 'over-stay beyond the expiry of their visas/passes.  Malaysia did not invite and they accepted and came situation - this is a situation where Malaysia 'forcefully' brought them into the country. Wonder what will happen if and when some of these asylum seekers do not get their 'refugee status' or gets it and does not get send to a 3rd country. Lawyers should be at hand to fight for the rights of these 'Australian Asylum Seekers'

 

High Court puts brakes on first Malaysia swap

Updated August 08, 2011 10:06:01

 

Photo: Reprieve: The asylum seekers arrive on Christmas Island last week (ABC TV)

Audio: High Court puts Government's Malaysian solution on hold (AM)

Related Story: AFP arrive on Christmas Island

Related Story: Malaysia bound asylum seekers 'on hunger strike'

Related Story: UN warns of children's trauma in Malaysian deal

Related Story: 19 children among group destined for Malaysia

Related Story: Malaysia swap to be shown on YouTube

The High Court has granted a temporary reprieve to the first group of asylum seekers due to be transferred to Malaysia under the Government's people-swap deal.

The Government had been preparing to send the first group of 16 asylum seekers to Malaysia at 11:30am today.

But in a special hearing of the High Court on Sunday, Justice Kenneth Hayne ordered a temporary injunction, stopping their removal until at least 4:15pm.

Refugee lawyer David Manne, who heads the legal team involved in the case, says the injunction gives them time to argue that sending asylum seekers to Malaysia is unlawful.

He says the group fears religious persecution in Malaysia.

"All of those that we are acting for want to be able to stay in Australia, which is a signatory to the refugees convention, and to be able to have their claims for refugee protection considered here, rather than being expelled to Malaysia where they fear they would not be protected and where they fear they would face the real risk of harm," he said.

Mr Manne's team represents 40 asylum seekers, including six minors, but the temporary injunction only affects 16 men who were set to leave for Malaysia today.

The lawyers also argue that Immigration Minister Chris Bowen is the legal guardian of the unaccompanied minors in the group, and sending them to Malaysia would not be in their best interests.

Mr Manne says many of the asylum seekers are extremely fearful and distressed.

"This case is really about some very vulnerable people, asking the court whether the Australian Government has the legal power to expel them to Malaysia, where they fear that they will not be protected and they'll be at real risk of harm," he said outside the court.

A spokesman for Mr Bowen says the Government is not surprised at the legal challenge.

"No-one should doubt our resolve in this. We're committed to breaking the people smugglers' business model and deterring people from taking that very dangerous boat journey to Australia," the spokesman said.

The injunction came on the same day a boat with 50 asylum seekers on board was intercepted north-east of Christmas Island - the second to arrive since the Malaysia agreement came into effect.

'Another boat arrival'

Opposition immigration spokesman Scott Morrison says Sunday's arrival shows the Government's Malaysian people swap deal is not working.

"We have a situation where we have, once again, another boat arrival, and another example of how this Government has driven itself into a very acute policy catch-22, as they are unable to make any decision about what they will do with the fate of the children who are on board these vessels," he said.

"I mean our policy was that everyone goes to Nauru and there are no exceptions because we can provide the facilities. 

"Now the Government has found itself in a position if they make one exception then that will become the rule. And that will actually encourage kids to get on boats.

"And that's why this is an ill-thought-through policy. They've led themselves in their own cul-de-sac here and whichever way they go I think the position is worse off."

Mr Bowen says nobody will doubt the Government's resolve once the arrangement is implemented.

"For this arrangement to ... have its full effect, people smugglers and asylum seekers need to see it in operation," he told Channel 10.

"Nobody will be able to doubt this Government's resolve after they have seen this arrangement implemented."

 

Video: Government faces human rights scrutiny (Insiders)

However, he says the policy will not immediately deter all people smugglers.

"I've said that we should expect people smugglers to test this arrangement, of course we should," he said.

"One signature doesn't provide that sort of outcome. We have already seen some effect, we've had about 1,000 less arrivals by boat that the same period last year."

Greens Senator Sarah Hanson-Young sent her "congrats" to Mr Manne and his legal team via Twitter.

"Many Aust are shocked that the Govt is prepared to sink this low to compete with heartless policies of the Libs," she tweeted.

She had earlier made an eleventh-hour appeal to the Government to abandon plans to send asylum seeker children to Malaysia.

"We have an immigration minister who is trying to be as tough as he possibly can. Being so tough he wants to beat up on children," she said.

"Now this is a really appalling state of affairs when we see a government willing to put the lives and welfare of vulnerable children at risk simply to make a political point."

Meanwhile, residents on Christmas Island are calling on Mr Bowen to come to the island to witness the forced removal of asylum seeker children.

About 20 residents protested at the Phosphate Hill Detention Centre on Sunday.

"These people are totally disempowered by these nonsensical decisions of our Government," Christmas Island resident Kaye Bernard said.

"It happened in 2001 with the Tampa and it's about to happen again." - ABC News, 8/8/2011,High Court puts brakes on first Malaysia swap 

See earlier posts on this issue - where human beings(asylum seekers) are being treated liked commodities in a business arrangement between 2 countries...

Malaysia signed that agreement to 'import' asylum seekers seeking asylum in Australia

Australian Parliament condemns Malaysian-Australian asylum-refugee swap deal

How 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)

Malaysia signed that agreement to 'import' asylum seekers seeking asylum in Australia

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 deal

How 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 60^th Year Anniversary of the 1951 Refugee Convention:

Ratify First, Arrange Later

Today, 28^th of July, 2011, will mark the 60^th 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, 25^th 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 60^th year anniversary of the convention on 28^th 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)

refugee.suaram@gmail.com

0163723699

http://www.hrw.org/news/2011/07/26/australia-malaysia-refugee-swap-fails-protection-standards

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