Malaysia in Focus as Refugee Deal Stalls

Illegal immigrants arrested in Kuala Lumpur after not having travel documents. Australia transfer arrangement with Malaysia may help improve conditions for asylum seekers in Malaysia but whether it goes ahead and can stop the boats remains to be seen. Jimin Lai/AFP/Getty Images

The Government’s asylum seeker transfer deal will highlight the terrible conditions refugees endure in Malaysia, but it may not solve the problem of “boat people” – or even go ahead.

Minister for Immigration and Citizenship Chris Bowen has proposed to send 800 asylum seekers who arrive in Australian waters to Malaysia, in return accepting 4000 processed refugees from Malaysia over the next four years.

The arrangement was signed last month by Mr Bowen and Malaysia’s Minister of Home Affairs, Dato’ Seri Hishammuddin bin Tun Hussein, both saying the deal will help stop human trafficking to Australia.

“The arrangement demonstrates the resolve of Australia and Malaysia to break the people smugglers’ business model, stop them profiting from human misery and stop people risking their lives at sea,” a joint statement said.

Professor Helen Ware, a former Australian diplomat and human rights official, said the goals are worthwhile, but whether the ministers can achieve their aim is questionable.

“Although they have a reasonable goal, the question is whether the Malaysia deal will have a significant impact and what they are going to do when they have 800 people arrive here, and more boat people are still arriving,” said Professor Ware.

Another 50 asylum seekers arrived by boat last weekend and have since been taken to the detention centre on Christmas Island, the ABC reported.

The new arrivals make a total of 105 asylum seekers to have arrived by boat since the Government’s Malaysia solution came into effect July 25.

Mr Bowen says new arrivals are to be expected as people smugglers test the new rules, but noted that the number of arrivals is already down from last year.
“We will pull the rug out from under the people smugglers’ trade and business model,” he told Paul Bongiorno on Channel Ten’s Meet the Press.

Conditions a Concern

Professor Ware says the Labor and the Liberal parties have made the issue of asylum seekers a political “football”, with neither party handling it very well.

However, the current attention on Malaysia may go some way towards improving conditions for the 90,000 refugees already living in Malaysia, she said.

“I think if people are indeed sent back there, we are going to hear more detail on how Malaysians actually treat refugees, the beatings and so on,” she said, adding that most of her Malaysian friends believe the arrangement is a “disastrous idea”.

“They don’t think that Malaysia, for a whole variety of reasons, treats refugees very well,” she said.

Malaysia is not a signatory to the 1951 United Nations Refugee Convention or its Protocol.

The UNHCR says it is the sole assessor of refugees in Malaysia, and without legislative or administrative frameworks, asylum seekers have few if any rights in the country.

“They are therefore vulnerable to arrest for immigration offences and may be subject to detention, prosecution, whipping and deportation,” the UNHCR notes in a statement.

Ninety-two per cent of refugees currently in Malaysia are Burmese asylum seekers.

Under the Australia-Malaysia agreement, the 800 asylum seekers from Australia will be treated differently from other refugees in Malaysia.

The asylum seekers from Australia will be allowed to move freely in the community with “work rights and access to education and healthcare”, the joint ministerial statement said.

Next ... High Court Challenge

High Court Challenge

While the first of the 4000 refugees from Malaysia are due to arrive this week, it remains to be seen whether the plan will go ahead.

Last Monday, the Government was due to send 16 of the first 42 asylum seekers from Australia’s Christmas Island detention centre to Malaysia, but a last minute legal case in Australia’s High Court challenged the legality of the transfer plan.

David Manne, principal solicitor for the Refugee and Immigration Legal Centre, argued that under Australia’s Migration Act, the Australian Government must offer protection to asylum seekers and given the conditions for refugees in Malaysia, that could not be guaranteed.

Mr Manne said the group feared religious persecution in Malaysia and the injunction dealt with “life and death matters”.

Extending the injunction on Monday, High Court Judge Justice Hayne said the issue would go before the full bench on Aug 22.

Concerns have also been raised about unaccompanied minors travelling from Australia to Malaysia.

Speaking at a press conference following the injunction, Mr Bowen said he would like to move the court hearings forward if possible, but was confident that the plan would meet “not only our domestic legal requirements, but our international obligations”.

Shadow Minister for Immigration Scott Morrison said the High Court’s action shows the chaos surrounding the Government’s asylum seeker policy.

“The High Court decision demonstrates once again that the Government has simply failed to think through their Malaysia people swap policy,” Mr Morrison said in a statement.