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Understanding the Australia-Malaysia Refugee Swap

August 24, 2011

On July 25, 2011, Australia and Malaysia signed an agreement on the transfer and resettlement of refugees and asylum seekers. Over the next four years under the arrangement, Australia will send 800 unprocessed asylum seekers who land on its shores to Malaysia where they will be administered by the United Nations. In turn, Australia will accept 4,000 already United Nations-certified refugees from Malaysia.

According to Australia’s Immigration Minister, Chris Bowen, the program is designed to send a clear signal that Malaysia and Australia are serious about reducing people smuggling. Immediate rerouting to Malaysia is intended to deter asylum seekers from boarding boats in the first instance because it will dash their hopes of being processed in Australia.

The issue of asylum seekers is a hot political topic in Australia. Australia is ranked 15 out of 44 industrialized countries that receive asylum seekers and receives 0.5 percent of the world’s refugee seekers. This is modest compared to countries like the United States, France, and Canada. In 2010, the number of refugee boat arrivals in Australia actually declined. Despite this, a significant percentage of the Australian public and electorate maintain the belief that people arriving illegally by boat are on the increase and that Australia is losing control of its borders. In fact, most Australian asylum seekers actually arrive by plane, but the media tend to hype up the stories of the “boat people” instead. Regardless of what is myth and fact, Australian Prime Minister Julia Gillard, who quickly defended the swap deal, calling it a “blow to people smugglers who prey on people desperate to flee from countries like Afghanistan, Iraq, and Myanmar,” is determined to assuage the Australian public’s anxiety over the economic and cultural implications surrounding the issue.

The deal is complicated and far from sealed, however. On August 8, the same day that Australia was to send its first group of asylum seekers from Christmas Island to Kuala Lumpur, Australian refugee lawyer David Manne challenged the agreement in court, arguing that the Australian government did not have the right to deport asylum seekers and that their claims should be heard in Australia under the UN Refugee Convention. As a result, after a day-and-a-half-long hearing on Wednesday, the High Court decided to reserve its decision on the swap agreement until next week.

The root of the controversy stems from the fact that Malaysia is not a signatory to the 1951 UN Convention relating to the Status of Refugees, nor is it a signatory to its 1967 Protocol (the Refugee Convention). Malaysia is home to more than 90,000 refugees, mostly from Burma, but also from Sri Lanka, Somalia, Iraq, and Afghanistan. Without a law to govern the treatment of refugees or outline the obligations of host nations, refugees in Malaysia have the same status as illegal immigrants under Malaysian law – subject to arrest, detention, and deportation – without assistance or recognition. Malaysia’s record on the treatment of Burmese refugees in particular has come under heavy criticism from both national and international human rights organizations. Given the gulf between the two countries in human rights standards for asylum seekers, it is surprising that Australia would agree to join hands with Malaysia on such a deal. For Malaysian Prime Minister Najib Razak, the swap eases Malaysia’s refugee burden and fosters positive relations with an important regional ally. On the positive side, 4,000 refugees whose claims have been administered in Malaysia by the UN will get a chance to settle in Australia.

Malaysian human rights advocates are criticizing the deal. By accepting the swap, Malaysia will create a two-tiered system – one serving the 800 Australian-funded asylum seekers and another serving the other 90,000 refugees already in Malaysia. Australia has agreed to pay $300 million over four years to support the swap program. This provides special treatment for the 800 asylum seekers who will be sent to Malaysia. The refugees will be administered in a dedicated Australian-funded holding centre, issued identity tags, and subsequently released into the community where they will be provided with access to healthcare and education and will be allowed to work. The 90,000 others who are outside the program, however, have no such benefits. The double standard is therefore seen by many as discriminatory and could polarize refugee communities in Malaysia. Irene Fernandez with Tenaganita, a refugee support and advocacy NGO based in Malaysia, has argued alongside others that Australia should have pushed Malaysia to ratify the convention before agreeing to the deal. In her view, this would have provided greater assurance that the rights of all refugees would be protected.

Anthea Mulakala is The Asia Foundation’s country representative in Malaysia and regional advisor for donor relations. She can be reached at amulakala@asiafound.org. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation.

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