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.
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.