Australia-Malaysia asylum seeker transfer agreement

Parliament house flag post

Australia-Malaysia asylum seeker transfer agreement

Posted 27/07/2011 by Harriet Spinks

 On 25 July 2011 the Governments of Australia and Malaysia signed an agreement concerning the transfer and resettlement of asylum seekers and refugees between the two countries.

The agreement was first announced on 7 May 2011 when Prime Minister Julia Gillard released a Joint Statement with the Prime Minister of Malaysia stating that the two countries would enter into a bilateral arrangement concerning the transfer of asylum seekers and refugees. The signing of the final agreement follows months of negotiations between the two countries, also involving the International Organization for Migration (IOM) and the Office of the United Nations High Commissioner for Human Rights (UNHCR), both of which will be involved in the operation of the arrangement.
Under the agreement, Malaysia will accept the transfer of up to 800 asylum seekers from Australia. In return, Australia will resettle 4000 recognised refugees from Malaysia over four years. The agreement will apply to asylum seekers who have travelled, or been intercepted by Australian authorities while attempting to travel, irregularly to Australia by sea after the date of signing. Notably, the agreement provides for a significant level of discretion by both Governments in determining who will be subject to transfer. People to be transferred will be those who ‘the Government of Australia determines should be transferred’ following a pre-transfer assessment to ensure fitness and suitability for transfer, and for whom ‘the Government of Malaysia provides consent and approval for the transfer’.

The deal provides that transferees will not be detained, but will be held in transit accommodation for up to 45 days for initial processing, following which they will be released into the community. They will receive support from the UNHCR and the IOM, but will not be given preferential treatment in the processing of asylum claims. For those found not to be refugees, Australia will assist Malaysia in returns to the country of origin or a third country.

The agreement has been reached under the Regional Cooperation Framework which was agreed to by participants of the Bali Process Ministerial Conference on People Smuggling, Trafficking in Persons and Related Transnational Crime in March 2011.

The arrangement is being fully funded by Australia, and the costs have been budgeted for in the 2011–12 Budget. The total cost is estimated at $292 million over four years, comprising $216 million to cover the increase in the humanitarian program and $76 million to cover the operational costs of transferring people from Australia to Malaysia.

The stated aim of the agreement is to 'break the people smugglers’ business model' by denying them a product to sell. The Government claims the agreement will send a message that getting on a boat to Australia is not worth the risk, as people will simply find themselves transferred to Malaysia with no possibility of resettlement in Australia. Indeed, the Immigration Minister has linked the announcement of the Joint Statement in May to a ‘dramatic reduction in the number of boat arrivals’.

Since the 7 May announcement over 500 people have arrived in Australia unauthorised by boat. The Government had repeatedly stated that these people would not be processed in Australia, but would be held in detention pending removal to a third country. However, it has been clear since the May 7 announcement that the agreement would apply only to those who arrived in Australia after signing of the agreement. This meant that the post-7 May arrivals were being held in limbo with no certainty about when or where they would be processed. This question has now been answered, with the Prime Minister’s press release stating that these people will now be processed in Australia – a major shift from the previously stated position that they would be transferred to a third country.

Since its announcement the agreement has attracted criticism from several quarters, including the Opposition, the Greens, and refugee and human rights advocates. The primary criticism has concerned human rights standards and the treatment refugees and asylum seekers in Malaysia, which is not a signatory to the Refugees Convention.

In its country operation profile for Malaysia UNHCR states that asylum seekers and refugees are ‘vulnerable to arrest for immigration offences and may be subject to detention, prosecution, whipping and deportation’. In June 2010 Amnesty International released a report chronicling human rights abuses suffered by refugees and asylum seekers in Malaysia, including the lack of work rights, and threat of possible arrest, caning, detention and deportation.

The Australian Greens have been particularly vocal in their criticism of the proposed agreement, stating that they do not believe the human rights of transferees will be protected. The Opposition has also expressed concern at the human rights implications of the agreement. It also argues that the deal is an admission by the Government that its border protection policies have failed, and that it will do little to deter boat arrivals.

The Government has argued that asylum seekers who are transferred under the arrangement will be treated in accordance with human rights standards, have their asylum claims properly considered, and those in need of protection will not be refouled. The Government has also repeatedly pointed out that UNHCR will be involved in the operations of the arrangement, pointing to this as evidence that human rights standards will be respected. However, the UNHCR is not a signatory to the agreement, and while it will work with both Governments to ensure the rights of transferees are protected, its stated preference is for asylum seekers arriving in Australia to be processed in Australia.

The detail of the agreement offers some assurance that the rights of asylum seekers will be protected. In particular, those transferred under the arrangement will be given work rights, and limited access to health care and education. Of particular significance is the fact that transferees will be lawfully present in Malaysia, and therefore, theoretically, not subject to the threats faced by asylum seekers whom Malaysia considers to be ‘illegal’. Whether this proves to be the case in practice remains to be seen.

Reactions to the agreement have not all been negative. Some commentators have cautiously welcomed it, suggesting that it could be beneficial for both Australia and asylum seekers in the region. John Menadue, a former Secretary of the Immigration Department, argues that it could help strengthen refugee protection in the region, pointing to the fact that Malaysia played a significant role in the processing of Indochinese refugees in the 1970s and 1980s.

Now that the detail of the agreement is finally known some criticisms, such as those concerning the lack of work rights, may recede. However, until transfers of asylum seekers begin and the arrangement can be scrutinised in operation, there is no way of knowing either whether the deal will ensure asylum seekers’ rights are protected, or if it will prove to be the death knell for the people smuggling trade the Government is clearly hoping for.

Thank you for your comment. If it does not require moderation, it will appear shortly.
Facebook LinkedIn Twitter Add | Email Print


Flagpost is a blog on current issues of interest to members of the Australian Parliament

Parliamentary Library Logo showing Information Analysis & Advice




refugees asylum immigration Australian foreign policy Parliament elections climate change social security women welfare reform taxation Indigenous Australians Australian Defence Force welfare policy school education higher education private health insurance health financing emissions trading Senate Australian Bureau of Statistics employment people trafficking Asia statistics Middle East illicit drugs gambling health reform federal election 2010 Australian Public Service income management Medicare disability Sport United Nations environment industrial relations constitution transport politics criminal law Afghanistan health forced labour food public service reform aged care aid Australian Sports Anti-Doping Agency World Anti-Doping Agency United States federal budget Carbon Pricing Mechanism dental health international relations governance regulation Fair Work Act voting law enforcement electoral reform OECD Australian Electoral Commission WADA child protection poker machines Australia in the Asian Century steroids National Disability Insurance Scheme detention 43rd Parliament slavery health system leadership domestic violence parliamentary procedure International Women's Day accountability defence capability multiculturalism ASADA Australian Federal Police labour force people smuggling debt New Zealand Australian Crime Commission pharmaceutical benefits scheme political parties coal seam gas Human rights crime China Census election results UK Parliament Papua New Guinea banking corruption pensions children's health Aviation federal election 2013 foreign debt gross debt net debt Senators and Members ALP Newstart Parenting Payment Youth Allowance sea farers United Kingdom energy food labelling Australian economy violence against women vocational education and training military history by-election High Court skilled migration mental health Federal Court terrorist groups science social media Higher Education Loan Program HECS federal state relations youth paid parental leave same sex relationships customs planning doping health risks Gonski Review of Funding for Schooling sex slavery Special Rapporteur Northern Territory Emergency Response social policy ANZUS Rural and regional trade unions Foreign affairs election timetable Indigenous royal commission Productivity firearms public policy Population ADRV terrorism transparency research and development welfare ASIO intelligence community Australian Security Intelligence Organisation carbon tax mining employer employee renewable energy regional unemployment fishing European Union family assistance United Nations Security Council forestry Drugs welfare systems Indonesia children Constitutional reform local government codes of conduct terrorist financing homelessness Parliamentary remuneration money laundering Trafficking in Persons Report social inclusion paternalism environmental law US presidential election nutrition ODA Defence sitting days electoral divisions Southeast Asia administrative law universities TAFE Ireland citizenship asylum seekers early childhood education Canada Financial sector national security fuel disability employment Tasmania integrity standards NATO Australian Secret Intelligence Service sexual abuse World Trade Organization Australia public health housing affordability bulk billing water health policy Governor-General US economy export liquefied natural gas foreign bribery question time speaker superannuation public housing expertise climate Intergovernmental Panel on Climate Change Department of Agriculture Fisheries and Forestry Pacific Islands reserved seats new psychoactive substances synthetic drugs UNODC carbon markets animal health middle class welfare constitutional recognition of local government referendum consumer laws PISA competition policy US politics language education baby bonus Leaders of the Opposition citizen engagement policymaking Australia Greens servitude Trafficking Protocol forced marriage alcohol entitlements ministries Hung Parliament social citizenship maritime Iran regional students school chaplains federal budget 2011-12 salary Medicare Locals primary care Building the Education Revolution marine pollution sustainability prisons police deaths in custody electoral margins electoral pendulum electoral redistribution redistribution NSW redistribution WA redistribution ACT electoral boundaries ASEAN Sustainable Development Goals Double dissolution Senators safety vehicles MYEFO Pathology tertiary education Taiwan Xi Ma meeting family violence government financial advisers financial planners Financial System Inquiry Murray Inquiry China; Economic policy; Southeast Asia; Africa housing Speaker; House of Representatives; Parliament High Court; Indigenous; Indigenous Australians; Native Title ACT Indigenous education Norfolk Island External Territories emissions reduction fund; climate change child care funding refugees immigration asylum procurement Indigenous health e-voting internet voting nsw state elections 44th Parliament 2015 ABS Age Pension Death penalty capital punishment execution Bali nine Bali bombings Trade EU China soft power education Fiji India Disability Support Pension Antarctica Diplomacy by-elections state and territories Bills anti-corruption fraud bribery corporate ownership whistleblower G20 economic reform innovation Members of Parliament Scottish referendum Middle East; national security; terrorism social services Criminal Code Amendment (Misrepresentation of Age to a Minor) Bill 2013 online grooming sexual assault of minors ACT Assembly smoking plain packaging tobacco cigarettes Asia; Japan; international relations Work Health and Safety Migration; asylum seekers; regional processing China; United States; international relations fiscal policy Racial Discrimination Act; social policy; human rights; indigenous Australians Foreign policy Israel Palestine asylum refugees immigration political finance donations foreign aid Economics efficiency human rights; Racial Discrimination Act employment law bullying Animal law; food copyright Australian Law Reform Commission industry peace keeping contracts workplace policies same-sex marriage disorderly conduct retirement Parliament House standing orders prime ministers First speech defence budget submarines workers Somalia GDP world heritage political engagement leave loading Trade; tariffs; safeguards; Anti-dumping public interest disclosure whistleblowing Productivity Commission limitation period cancer gene patents genetic testing suspension of standing and sessional orders live exports infant mortality honorary citizen railways disciplinary tribunals standard of proof World Health Organisation arts international students skilled graduate visas temporary employment visas apologies roads Italy national heritage NHMRC anti-dumping Rent Assistance obesity evidence law sacrament of confession international days DFAT UN General Assembly deregulation Regulation Impact Statements small business Breaker Morant regional engagement social determinants of health abortion Members suspension workplace health and safety marine reserves hearing Victoria astronomy resources sector YMCA youth parliament Korea rebate Australian Greens presidential nomination Racial Discrimination Act political parties preselection solar hot water Financial Action Taskforce Horn of Africa peacekeeping piracy Great Barrier Reef Stronger futures political financing political education Social Inclusion Board early childhood National Quality Framework for Early Childhood Education and Care Murray-Darling Basin sanctions Norway hospitals republic President Barack Obama Presidential visits qantas counselling Korean peninsula Work Choices biosecurity hendra federalism federation preselection therapeutic goods Therapeutic Goods Administration plebiscites computer games pests suicide nuclear COAG Ministerial Councils floods ADHD stimulant medication advertising electricity extradition conscience votes poverty preventative health rural health coastal erosion Parliamentary Budget Office work-life balance

Show all
Show less
Back to top