Debate continues on the Australia Malaysia asylum swap

Updated June 17, 2011 12:52:52

Australian Prime Minister Julia Gillard is determined to push on with her plan to send 800 unprocessed asylum seekers to Malaysia, despite both houses of Australia’s Parliament condemning the policy.

The details are still being hammered out, with reports of sticking points around whether Malaysia will give explicit assurances the asylum seekers will not be sent back to the country they’ve fled.

There is also apparent disagreement over whether to issue special identity papers to the 800 asylum seekers to try to protect them from harassment and abuse by police that has been widely documented by rights groups.

They say that because Malaysia is not a signatory to the refugee convention, asylum seekers have no legal status in the country and are vulnerable to exploitation, arbitrary arrest and trafficking.

Presenter: Liam Cochrane
Speaker: Renuka Balasubramaniam a director with Lawyers for Liberty in Malaysia

BALASUBRAMANIAM: Well I think many of the issues you’ve highlighted earlier, it’s just Malaysia’s appalling human rights track record, especially with regard to refugees, but it’s really mainly about that and we have doubts as to whether or not the Malaysian government would be able to implement its assurances to the Australian government, given the existing mechanisms for law enforcement.

COCHRANE: Well let’s tease that out a little bit. What kind of history does Malaysia have in keeping promises regarding refugees and I’m thinking in particular about sending refugees back to countries they’ve fled from?

BALASUBRAMANIAM: Well, in so far as promises, Malaysia really hasn’t made any official promises. All it has is a discretionary ad hoc, discretionary arrangement with the UNHCR to cooperate with providing protection. However that’s not a legally binding obligation and it’s subject to amendment or even withdrawal if the government sees fit and so UNHCR’s operation in Malaysia is subject to this general discretion on the part of the Malaysian government or I suppose does that answer your question?

COCHRANE: It partly does, but let me pick up on another aspect of the disagreements that have been reported in trying to get this deal done in regards to the special identity papers that Australia apparently wants for the 800 asylum seekers. Do you think that will protect them from extortion and abuse?

BALASUBRAMANIAM: The thing is even with the UNHCR refugee card, many refugees face harassment by authorities, because there are apparently doubts to the authenticity of those cards. So I’m of the opinion that it doesn’t matter what kind of document or card or papers are issued to these 800, they will always be susceptible to doubt because of the fact that I think it’s virtually impossible over a short period of time for law enforcement officials across the 13 states in Malaysia for their awareness to be raised about present documentation that’s being extended to such a small group of asylum seekers. There are 90,000 registered refugees in Malaysia supposedly under the protection of the UNCHR who’ve been issued cards and these people are facing harassment, arrest and detention. I find it just logically impossible that some fresh documentation is going to make that much of a difference.

COCHRANE: Now 90,000 registered refugees in Malaysia awaiting resettlement. How long do they normally wait?

BALASUBRAMANIAM: Let me correct that perception. All 90,000 are not going to get resettled, that’s a fact. The numbers for resettlement are not that many and so many of them will have to find a way to integrate locally unless conditions in their countries of origin change and they’re able to be repatriated. So no, there is no certainty that 90,000 will be in fact it’s quite a well, almost an impossibility I would say.

COCHRANE: Certainly, certainly, thank you for correcting me on that, but of those who are looking to be resettled and who could potentially, for example, come to Australia or go to other countries who do take on refugees as a third country. How long do they wait?

BALASUBRAMANIAM: That’s hard to say. I know many people who are able to be resettled in as short as three to four years, but there are many who wait 10-20 years, so it’s really the luck of the draw I would say.

COCHRANE: Now getting back to the issue of the 800 asylum seekers who are to be transferred under this deal from Australia. Just practically speaking, where would they live and what would they do with their time?

BALASUBRAMANIAM: Based on my experience, I would say they would virtually disappear into society. The fact is refugees in Malaysia are urban refugees, not camped-based and what they do upon arrival and who are waiting for their claims to be registered and actually obtaining the cards. They really just disappear into Malaysian urban society, trying to eke out a living with jobs, trying to find may be UNHCR partner schools to send their children to and basically informal work sector. And so many of them are isolated in their communities and one of my concerns is that once they arrive and begin to blend into society, what assurances would they have that any kind of special treatment would be extended to them, given the fact that they really are no different from or even in a more disadvantaged position than the 90,000 with refugee cards.

COCHRANE: With that isolation within the community that you’re referring to and as well as the uncertain legal status of them perhaps. Does that make them more vulnerable to exploitation and I’m thinking particularly of trafficking?

BALASUBRAMANIAM: Does the fact that they blend into society make them more vulnerable to trafficking? I don’t know if I’m coming through clearly enough when I say that I would say that all the risks are spread out to the extent that they become vulnerable to all risks.

Let me give you an example. I have an asylum seeker who has arrived in Malaysia, has been living for the past two years without any kind of registration, unable to access UNHCR and in order to keep himself safe has chosen to live in a remote hill where he’s been able to get a job in a rubber plantation and he made his home, he made his own hut I would say and lives in the jungle with a kerosene lamp and whatever food he can eke out merely because he’s so afraid of being arrested. On his previous attempt to enter Malaysia, he entered Malaysia, was working as an electrician, but managed to get arrested and was in detention for a year after spending time in imprisonment and being whipped and was deported back to Burma, was arrested there again and managed to escape and found his way back into Malaysia again and it’s not a surprise that on this occasion, he’s hoping to keep himself as safe as possible and the option has been open to him is to make himself a little hut in the hills, working in a rubber plantation and I think that’s a really sorry state of affairs.

COCHRANE: And so are you saying that the people transferred from Australia would face a similar situation and similar choices?

BALASUBRAMANIAM: The risks certainly are very, very high, the risks of that happening are certainly very, very high. A lot of course will depend on exactly how tightly the arrangement between the two governments are made and whether the key concerns of the realities on the ground are taken into account of.

COCHRANE: Just finally, the prime minister of Australia and senior officials have repeatedly said that the purpose of this people swap is to break the business model of people smugglers. Do you think that that will work?

BALASUBRAMANIAM: I really wonder about whether that as a priority or to supersede legally binding obligations of states to render protection, that’s my concern, that’s the framework within which I look at this entire refugee swap process. As to whether it would break the people smuggler business model. I have serious doubts about that. The demand is just too high and this one and the advantage of actually risking it and succeeding is just too much to resist for those in this kind of desperate situation. So I have my doubts about that.