NEGOTIATIONS over the refugee swap with Malaysia are stuck on Australia’s insistence that asylum-seekers sent to Malaysia be given identity papers to ensure they are not harassed by police and that Kuala Lumpur give an explicit commitment not to send refugees back to the country they fled.
As both houses of federal parliament yesterday passed a historic motion condemning the Gillard government’s deal to transfer 800 asylum-seekers to Malaysia in return for 4000 proven refugees, The Australian was told several sticking points had arisen, slowing negotiations between the two countries.
Australian and Malaysian negotiators sat down again yesterday to hammer out the final terms of their deal, which was expected to have been concluded early last week.
It is understood Malaysia has resisted key elements of the deal. Whereas Australia wants an explicit undertaking from Malaysia not to return asylum-seekers to their country of origin, Kuala Lumpur is understood to favour a more hedged commitment.
“One side wants it black and white; the other wants it more nuanced,” said a source familiar with the negotiations.
The issue is crucial for Australia, which has a lawful obligation under the UN Convention on Refugees not to return genuine asylum-seekers to the country they fled.
Malaysia is not a signatory.
Details of the sticking points holding up an agreement with Malaysia came as a High Court challenge was lodged yesterday against the possible deportation of a Kurdish mother and her four-year-old son to Malaysia.
The pair arrived on Christmas Island on May 16 after making the journey to Australia to be reunited with the woman’s husband, who came by boat 18 months ago and was found to be a refugee.
The man is being held in the Maribyrnong detention centre in Melbourne and previously, he would be entitled to be reunited with his family but the Malaysian deal has ruled out the possibility.
Refugee lawyer David Manne told ABC’s Lateline last night that the prevention of family reunification was illegal. “Essentially, what we’re arguing is whether the government can in fact expel a wife and a child in a situation where the husband has already found to be a refugee in Australia,” he said.
Concerns about Malaysia trying to return asylum-seekers to their homelands were reinforced yesterday by Renuka Balasubramaniam, who works for Malaysian group Lawyers for Liberty. She said she was aware of at least one case where Malaysian authorities had sought to return an asylum-seeker to their home country.
“I have evidence of a detainee who had been recognised by the UNHCR as a refugee,” Ms Balasubramaniam said. “Because of the mere fact that he was suspected of a criminal offence, they were trying to return him to Afghanistan. I was trying to stop it but he died in custody.”
There is also disagreement on identity papers, which have emerged as a significant issue in negotiations. Ensuring asylum-seekers are issued the right type of identification is seen as a key safeguard against harassment and abuse by local police. A source said the identification had to be “issued by the host government” to secure the asylum-seeker’s lawful status.
Ms Balasubramaniam said the only form of identity document asylum-seekers in Malaysia received at present was a UNHCR card recognising them as a refugee. Even then, the only protection offered by a UNHCR card was an undertaking not to deport cardholders or detain them.
Julia Gillard yesterday vowed to press ahead with the asylum-seeker swap with Malaysia despite both houses of parliament yesterday voting to condemn the plan.
Rejecting opposition claims she was defying the will of the legislature, the Prime Minister cited the right of executive government.
Ms Gillard said it provided the best opportunity to smash the business model of people-smugglers and prevent asylum-seekers risking their lives on dangerous sea voyages.
Earlier, the House of Representatives supported a motion put by Greens MP Adam Bandt condemning the deal by a margin of 70 votes to 68.
Independents Andrew Wilkie and Bob Katter supported the motion, which was already approved by the Senate.
Tony Abbott seized on the development to demand the government accept the will of parliament.
Ms Gillard said that as the leader of a minority government, she expected there would be times the parliament would not support decisions of the executive.
“It falls to executive government to make important policy decisions,” Ms Gillard said.
Mr Abbott attempted to win parliament’s support for a censure motion against the government for refusing to scrap the deal, but the bid failed.
EXCLUSIVE Paul Maley, National security correspondent, The Australian, June 17, 2011 12:00AM
Additional reporting: Matthew Franklin, Joe Kelly