On 7.5.2011, Australia and Malaysia announced a bilateral agreement which sought to transfer up to 800 asylum seekers who have arrived in Australia by sea to Malaysia while their asylum claims are being processed by the UNHCR. In return, Australia will resettle 4,000 refugees currently residing in Malaysia over a period of four years.

While Australia’s agreement to accept more refugees for resettlement is commendable, Lawyers for Liberty is however extremely shocked and concerned with Australia’s plan to forcefully deport asylum seekers and “outsource” its international obligation to protect refugees as defined under international law including the 1951 Refugee Convention which Australia is a party to.

Let there be no doubt: Malaysia has a horrendous track record – infamous for its ill and brutal treatment of refugees and other undocumented migrants and has been consistently ranked as one of the world’s worst place for refugees to be in.

Malaysia is not a state party to the Refugee Convention and in the absence of a comprehensive national legal and administrative framework for the protection of refugees, this transfer deal will certainly violate the rights of the refugees including the right not to be forcefully deported; the right to life, liberty and security of the person; and the right to freedom from torture or cruel, inhuman, or degrading treatment or punishment.

In Malaysia, refugees and asylum seekers are still treated as undocumented migrants and subjected to harsh immigration laws and policies. Without documents, they are unable to work legally and live in perpetual fear of raids, arrest and harassment. Consequently, they live in the margins of society, constantly in hiding and living in poverty.

When arrested they are detained at detention centres for several months (sometimes even years) before being charged, jailed, whipped (men only) and deported, mainly to the Thai border – and some find themselves sold to human traffickers.

In May and September 2009, eight Burmese detainees died in two detention centres due to Leptospirosis, an infectious disease caused by water or food contaminated with animal urine. Detention conditions are deplorable and inhumane – overcrowding, sweltering, lack bedding, poor hygiene and sanitation, insufficient and poor quality food, irregular access to clean water and medical treatment, all of which fall far short of minimum international standards. Serious abuse by detention centre staff is also common, including arbitrary beatings.

The then Home Minister Datuk Seri Syed Hamid Albar reported to Parliament that between 1999 and 2008, there were 2,571 detainee deaths in prisons, rehabilitation centres and immigration detention centres. In December 2008, former Suhakam Commissioner Datuk Siva Subramaniam said 1,300 foreigners died in detention during the past six years due to lack of medical treatment and neglect.

How can the Australian government be blind to Malaysia’s severe and brutal treatment of undocumented migrants and refugees and “outsource” its responsibility, without seriously undermining the rights, well being and safety of the refugees?

Australia, being a state party to the Refugee Convention, instead of working hand in hand with Malaysia to punish and deter refugees, should strive to formulate policies that are protective of refugees and consistent with its international obligation. It can start by calling off this terrible outsourcing deal.

Issued by Lawyers for Liberty

9 May 2011