In May, Australia and Malaysia announced an agreement to transfer up to 800 asylum seekers in Australia to Malaysia while their asylum claims are processed by the United Nations’ refugee agency, the UNHCR. The announcement declared, among others, that the “transferees will not receive any preferential treatment over asylum seekers already in Malaysia.” 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, the plan to illegally and forcefully deport asylum seekers and “outsource” its international human rights obligations to a country like Malaysia is shocking and irresponsible to say the least.
Let there be no doubt: Malaysia has a horrendous track record — infamous for its brutal treatment of refugees and other undocumented migrants and consistently ranked as one of the world’s worst places to be a refugee. Registration with the UNHCR only affords them a small measure of protection as the Malaysian government does not generally recognize refugees but instead treats them like any other “illegal” migrant present in the country. They are thus subjected to the same harsh immigration laws and policies that include arrest, detention, prosecution, fine, jail, whipping and deportation.
Malaysia is not a state party to the 1951 Refugee Convention (to which 144 countries have signed up, including Australia) and in the absence of a 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.
Without government documentation, refugees in Malaysia are unable to work legally and live in perpetual fear of raids, arrest, harassment and extortion by the police, RELA (the Home Ministry’s civil volunteer corps) and the immigration authorities. Consequently, they live in the margins of society, working “illegally” when they can find work, constantly in hiding, living in poverty with no access to social services including health care and education for their children. They have to scrape together whatever they can find, living day-to-day in order to feed, clothe and shelter themselves and their families.
When arrested, irrespective of whether they are men, women or children, they will be taken away from their families and friends and detained at Malaysia’s infamous detention centers for several months, sometimes even years, before being charged, jailed, whipped (men only) and deported, mainly to the Thai border. The abuse doesn’t stop there as the US Senate Foreign Relations Committee found in a report several years ago — because some of the deportees are then sold at the border into slavery to human traffickers.
Typically, immigration detention conditions are deplorable and inhumane. Those detained face severe overcrowding, sweltering heat, no bedding, poor hygiene and sanitation, insufficient and poor quality food, and irregular access to clean water and medical treatment. The conditions fall far short of minimum international standards for places of detention. Serious abuse by detention center staff is also common, including arbitrary beatings. Poor detention conditions have led to serious illness and in some instances, death.
In May 2009, two Burmese detainees died in a detention center due to leptospirosis, an infectious disease caused by water or food contaminated with animal urine. In September 2009, another six Burmese detainees in another center died of the same disease. These should not be read as isolated incidents as detention death is an everyday reality. According to the Malaysian Human Rights Commission, 1,300 “foreigners” died in detention over a six-year period due to lack of medical treatment and neglect.
Despite overwhelming criticism from Australian and Malaysian civil society groups, and international agencies like the OHCHR, the UN’s human rights agency, and Human Rights Watch, current discussions on the viability of the refugee swap deal or the deal breaker seem to revolve around whether the UNHCR will sign off on the deal.
Although UNHCR involvement would certainly be important and preferable to noninvolvement, the view that the deal stands or falls with the UNHCR is very narrow and seems to overestimate that agency’s influence on the Malaysian government. The UNHCR’s presence in Malaysia is not based on any legally binding agreement with the Malaysian government. Instead, it works on the basis of arbitrary “general understandings” with government ministries and law enforcement agencies. And since it does not appear to be in the cards there will be any comprehensive and groundbreaking reforms in Malaysia’s immigration laws and policies, the international community should not overestimate what the UNHCR can do there.
In certain circumstances, refugees in Malaysia with UNHCR documents may be released from police arrest due to better document recognition. They may also be exempted from prosecution for immigration offenses. But intervention remains difficult in detention centers as the UNHCR must obtain release letters from the various authorities, and that can take months or years.
Refugees are real people with real needs. They should not be treated like a political football to be kicked around from Nauru, Christmas Island, Papua New Guinea and now to Malaysia in order to obtain a perceived political advantage. Australia should look into its international and national human rights obligations on how best to treat refugees with dignity and respect while at the same time deal with human trafficking.
Eric Paulsen is a co-founder of Lawyers for Liberty, a human rights and law reform organization based in Malaysia.