From Andika Abdul Wahab, via e-mail
Malaysia will be housing more asylum seekers under poor human rights treatment with the implementation of the agreement to send 800 of them (to Malaysia) who previously attempted to make their way to Australia by boats.
The transfer deal announced by the Malaysian and Australian governments on May 7, will see the 800 sent to Malaysia in exchange for the resettlement of 1,000 registered refugees every year within four years to Australia.
This strategy undertaken by the Australian government to stop the flow of asylum seekers to its country via non-legal channels does not provide any solution to the situation of asylum seekers and refugees in Malaysia.
Even though the agreement will see the resettlement of 4,000 refugees from Malaysia to Australia, the agreement falls far from “burden sharing”, as mentioned by the Australian government. Instead, this move is more of a “burden transition” from Australia to Malaysia.
Malaysia already has an appalling track record of handling asylum seekers and refugees. As a state party to the 1951 Convention relating to Status of Refugees (1951 Convention), the Australian government is showing a bad example as Malaysia and come other states in the region have not ratified the 1951 Convention.
This arrangement also does not take into account the realities and limitations of the United Nations High Commissioner for Refugees (UNHCR) office in Malaysia. As of today, there remain thousands of asylum seekers waiting for their refugee status from the UNHCR.
The UNHCR does not have the administrative resources to effectively provide protection for refugees, including processing asylum claims as these are responsibilities that states should undertake. If the agreement takes place without any legislature and administrative reform for the recognition of refugee status and the protection of this group, it will bring greater pressure and desperation to asylum seekers in Malaysia.
Apart from that, Suaram is of the view that Australia has disregarded Malaysia’s record of poor treatment of asylum seekers and refugees, and status as a non-state party to the 1951 Convention and its 1967 Protocol. This joint agreement is “illegal” as Malaysian laws do not recognise both asylum seekers and refugees but blanket them as “undocumented immigrants” and eligible to be charged under Malaysian Immigration Act 1959/63.
Based on this, the Australian government is effectively violating the international customary law of non-refoulement, which prohibits the return of people to places where they may face persecution or threats to their life or freedoms.
Suaram is of the view that the first step to a “burden sharing” solution is for Australia to urge the Malaysian government to ratify the 1951 Convention and its 1967 Protocol and/or at least to enact domestic laws to protect and promote the rights and security of asylum seekers and refugees. The Australian government cannot combat trafficking in persons with methods that disregard and violate the rights of asylum seekers and refugees.
About 142 are state parties to the both instruments, but Malaysia remains reluctant to accede to it. This year (2011) marks the 60th anniversary of the 1951 Convention and it is the right time for Malaysia to accede to the instruments.
Suaram demands that the Malaysian government immediately accede to the convention and protocol in order to improve and demonstrate its commitment in human rights issues. Ratifying and implementing the 1951 Convention will go a long way in the management of asylum seekers and refugees in the country.
The writer is the refugee coordinator in Suaram