CHAPTER 3

Key concerns

Introduction

3.1        During the committee's inquiry, submissions and witnesses raised a number of serious concerns in relation to the Malaysian Arrangement and the Operational Guidelines; indeed, all those who provided comment on the arrangement expressed their opposition to it in absolute terms.

3.2        Some of the key concerns raised during the course of the inquiry were:

• the non-legally binding nature of the arrangement;
• problems relating to the practical implementation of the arrangement, including a lack of appropriate oversight and monitoring mechanisms;
• the non-compliance of the arrangement with international law obligations and human rights standards;
• inadequate conditions in Malaysia for asylum seekers and refugees;
• insufficient protections for unaccompanied minors transferred under the arrangement; and
• the 'swap' aspect of the arrangement that would see 800 asylum seekers going to Malaysia, in exchange for the resettlement in Australia of 4,000 refugees from Malaysia.

Non-legally binding nature of the Malaysian Arrangement

3.3        One of the overarching concerns raised in submissions and evidence related to clause 16 of the Malaysian Arrangement, which provides that the arrangement 'represents a record of the Participants' intentions and political commitments but is not legally binding on the Participants'.[1]

3.4        Human Rights Watch contended that the non-legally binding nature of the arrangement highlights the 'unwillingness of the parties to be formally bound by its provisions'.[2] Mr Rohan Anderson from the Office of the Commonwealth Ombudsman described the arrangement as 'almost aspirational' because it 'talks of commitments, not binding obligations'.[3]

3.5        A number of submissions outlined the implications that the non-binding nature of the arrangement will have on the enforceability of assurances it contains, particularly in relation to Malaysia's obligations to respect the principle of non-refoulement and accord certain standards of treatment to the 800 asylum seekers sent to Malaysia (Transferees).[4] For example, Amnesty International Australia (Amnesty) argued:

...[T]he Arrangement is not a substitute for protections offered through international legal instruments, nor is it sufficient to ensure the human rights of those transferred to Malaysia will be protected, particularly in light of Malaysia's poor human rights record.[5]

3.6        The Australian Human Rights Commission (AHRC) commented that it is 'not convinced' that there are adequate safeguards in the arrangement to ensure that Malaysia upholds its obligation to respect the principle of non-refoulement.[6] In their submission, Mr Andrew Bartlett and Ms Marianne van Galen-Dickie from the Australian National University argued that the Minister for Immigration and Citizenship 'cannot just be satisfied a country will act in a certain manner'. Instead:

...a country must be under an obligation, either under international law or within its own domestic legislation or from a legally binding agreement, to provide access and protection to all persons seeking asylum within its territory.[7]

3.7        Professor Ben Saul directed the committee to recent case law in respect of so-called 'diplomatic assurances':

In recent years there has been this practice of one state giving a diplomatic assurance to another state that a certain person, if returned to that country, will not be mistreated or treated inhumanely or in a degrading way and so forth. The UN Human Rights Committee, in numerous cases in the last few years...has said that if these kinds of political agreements or assurances are the basis underlying the return of a person where there is a risk of inhuman or degrading treatment or torture and so on there have to be sufficiently enforceable guarantees and monitoring to uphold those agreements...

In those UN Human Rights Committee cases and a number of European Court of Human Rights cases, states have been found to be in violation of international law because these assurances have not been accompanied by sufficient binding enforceable safeguards.[8]

3.8        In terms of the courses of action open to Australia in the event that Malaysia breaches the arrangement, the Refugee Council of Australia observed:

Neither the arrangement itself nor the operational guidelines stipulate a course of action should either party fail to uphold the specified standards, nor do they outline avenues for seeking recourse if transferees are subject to treatment which violates the arrangement.[9]

3.9        The Commonwealth and Immigration Ombudsman (Ombudsman), Mr Allan Asher, advised the committee that it is his expectation that the Joint Committee and the Advisory Committee to be established under the arrangement should have a role 'at the very least [in providing] a level of supervision [and] a level of scrutiny that is no less than would apply in Australia'. However, the Ombudsman conceded that because the arrangement is not legally binding, there would be no steps that could be taken by the Joint Committee or the Advisory Committee to bring about a resolution in the event of any breach of the arrangement:

At most, we could draw it to the attention of the parliament and the government that there do appear to be administrative shortfalls in the [arrangement].[10]

Practical implementation of the Malaysian Arrangement

3.10      A number of concerns were expressed during the inquiry with respect to the practical implementation of the arrangement.

Oversight and monitoring

3.11      Although the Malaysian Arrangement and the Operational Guidelines provide for the establishment of the Joint Committee and the Advisory Committee,[11] submissions and evidence were critical of the oversight and monitoring provided for in the arrangement and, in particular, the practical extent to which any oversight might be conducted in Malaysia.[12]

3.12      For example, Liberty Victoria argued that the level of oversight and monitoring is 'insufficient' and would contain 'no scope for transparency, accountability or independent review of the arrangement'.[13] The Australian Human Rights Commission (AHRC) noted that the arrangement does not provide oversight and monitoring of the transit or detention centres.[14]

3.13      Several submissions expressed concerns about the level of scrutiny for offshore processing and the lack of an independent or external complaints-handling mechanism. These submissions proposed that an external Australian body should have oversight and monitoring responsibilities of offshore processing arrangements.[15] For example, the International Commission for Jurists (Australia) (ICJA) suggested:

...some level of parliamentary, Ministerial or standing committee scrutiny, that can effectively monitor compliance with proposed [offshore] arrangements...

[I]f any [offshore] arrangement is to proceed, an independent or external complaints-handling mechanism ought to be established to oversee the entire arrangement...[C]omplaints procedures should also be made widely known to asylum seekers.[16]

3.14      Mr Andrew Bartlett echoed the call to add independent oversight, suggesting that the Ombudsman or the AHRC would be an appropriate body.[17]

3.15      The Ombudsman, whose role includes oversight of immigration detention, refugee assessment, and review processing of irregular maritime arrivals, also emphasised the importance of scrutiny measures and indicated that he saw a role for his office in monitoring the arrangement:

Importantly, the jurisdiction of my office is not geographically limited; it extends to actions by Australian officials overseas as well as contracted service providers who act for and on behalf of the government. I believe my office is also well placed to provide independent advice and oversight on immigration matters including, importantly, issues relating to the treatment of irregular maritime arrivals.

...

The need for oversight is particularly important in areas of administration where opportunities for judicial review are limited and where there may be some concern within the community about how government policy will be implemented.[18]

Pre-transfer arrangements

3.16      Concerns were raised that, at the time of the signing of the arrangement, the details for the pre-transfer assessment of the vulnerability of asylum seekers to be transferred to Malaysia had not been finalised.[19]

3.17      The Ombudsman pointed to the lack of detail included in the arrangement, noting that there were a number of 'gaps' and insufficient documentation to provide assurance regarding the pre-transfer arrangements.[20] Further, the Ombudsman noted that assurances of safety are especially important in relation to circumstances 'where there are special obligations for unaccompanied minors, for victims of torture and people who have come to Australia with pre-existing mental illnesses' because they are 'exceptional vulnerable individuals'. Accordingly, relevant procedures relating to such persons need to be 'much more clearly elaborated and published'.[21]

3.18      Professor Jane McAdam explained that the principle of non-refoulement requires a case-by-case assessment of the future safety of the individual involved, and an assessment of their 'individual protection needs' prior to being transferred to Malaysia, so as to prevent direct refoulement to Malaysia.[22] However, neither the arrangement nor the Operational Guidelines provide for a proper legal assessment of individuals' claims for protection prior to removal from Australia.[23]

3.19      The Refugee Council of Australia argued that inappropriate or unsuitable pre-transfer processes may result in actual harm to vulnerable asylum seekers if they are transferred to a 'situation where their safety cannot be assured or where adequate protection and assistance may not be available'.[24]

3.20      ICJA recommended that asylum seekers should be given access to health and welfare professionals who are independent of the decision-making process:

The ICJA submits that where any arrangement involving [offshore] processing is approved, that asylum-seekers be given access to medical practitioners, psychologists and lawyers who are independent of the decision-making process. The ICJA further submits due to the vulnerabilities of asylum-seekers, advocates representing asylum-seekers are a necessity, not an option.[25]

3.21      The Coalition for Asylum Seekers, Refugees and Detainees (CARAD) argued that departmental officers may not have suitable qualifications to assess the vulnerability of asylum seekers, and proposed that decisions made about the status of asylum seekers should be made by medical and child protection professionals.[26]

Mechanisms for appeal

3.22      Submissions criticised the lack of provision in the Malaysian Arrangement of mechanisms to appeal removal decisions. Liberty Victoria, among others, condemned this omission, arguing that it is 'clearly unacceptable'.[27]

3.23      The Law Council of Australia noted that Article 13 of the International Covenant on Civil and Political Rights (ICCPR) provides that any person, prior to being expelled from a country, should be able to have their expulsion reviewed and to be represented in such a review:

The fact that the [Malaysian Arrangement] makes no reference to any such review process or to access to representation indicates that it is inconsistent with Australia's obligations under the ICCPR. It also appears to be inconsistent with the Refugee Convention.[28]

3.24      The Hon John Dowd AO QC, President of the ICJA, also condemned the lack of appeal or review measures, and the consequent risk of refoulement:

...[T]his arrangement does not protect non-refoulement. In fact, it gives the right to Malaysia, under the arrangements, to send people back to their country of origin if they are not assessed to be refugees, and there is not necessarily a proper appeal mechanism, because there are mechanics that need to be worked out. Many of the people that are sent back to countries such as Sri Lanka, Afghanistan or wherever they come from will be subjected to torture, detention and in some cases death.[29]

Access to independent legal advice

3.25      Submitters also commented on the lack of information available as to whether Transferees would be able to access independent legal advice under the arrangement.[30]

3.26      For example, Professor Ben Saul cited access to a lawyer, and recording of any interviews, as one of the safeguards necessary to adhere to international law.[31] The Law Council of Australia highlighted the continuing need for Transferees to have access to legal assistance in Malaysia if they are found not to be refugees by the UNHCR and are subject to deportation from Malaysia.[32]

3.27      Australian Lawyers for Human Rights noted that asylum seekers are only afforded access to lawyers pursuant to section 256 of the Migration Act if they ask for them, and there is no obligation to advise detainees of their rights under section 256.[33]

Compliance with international law obligations and human rights standards

3.28      The arrangement is expressed as being 'subject to the respective Participant's relevant international law obligations, in accordance with the applicable international law instruments or treaties to which the Participant is a Party'.[34]

3.29      Australia's international legal obligations relevant to the arrangement arise principally under treaties to which Australia is a party, and which have been ratified by Australia.[35] The major international law obligations identified by submitters and witnesses[36] are contained in the Convention relating to the Status of Refugees (Refugee Convention)[37] and the Protocol relating to the Status of Refugees (Refugee Protocol).[38] Key obligations are:

• the obligation of non-refoulement, which prohibits the expulsion or return (refouler) of a refugee, in any manner whatsoever, to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality or membership of a particular social group or political opinion;[39] and
• the obligations of non-discrimination and non-penalty for unlawful arrival, which prohibit:
• discrimination against refugees on the basis of race, religion or country of origin;[40] and
• the imposition of penalties upon refugees who arrive in Australia unlawfully, provided that they have come directly from a territory in which their life or freedom was threatened, and they present themselves without delay to the authorities in Australia.[41]

3.30      The process of transfer and the conditions in Malaysia were highlighted as areas in which Australia may be in breach of human rights standards and international law obligations.[42] These obligations arise principally under treaties which require that certain minimum treatment standards are afforded to refugees or asylum seekers who arrive in Australia. These include:

• specific obligations under the Refugee Convention, including to provide access to the courts, primary education, work, housing, freedom of religion, non‑discrimination on the basis of race, religion or country of origin in the application of the Convention, freedom of association and movement, and the provision for identity documentation including a refugee document in passport form;[43]
• obligations under covenants of general application, such as the International Covenant on Civil and Political Rights (ICCPR)[44] and the International Covenant on Economic, Social and Cultural Rights (ICESCR),[45] which include affording rights of non-discrimination, access to remedies for current and potential breaches of recognised rights, the entitlement to commence court proceedings in respect of deprivations of liberty by way of arrest or detention,[46] and rights to housing, healthcare and education;[47]
• obligations in respect of physical and psychological treatment, including under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);[48] and
• specific obligations concerning the treatment of minors (Transferees under 18 years), including unaccompanied minors, under the Convention on the Rights of the Child (CRC).[49]

Obligation of non-refoulement

3.31      The incompatibility of the Malaysian Arrangement with Australia's non-refoulement obligations was the subject of considerable evidence during the inquiry.[50] Submitters and witnesses identified areas of major inconsistency between the arrangement, and the risks of both direct and indirect refoulement. Direct refoulement refers to the risk that Transferees may be exposed to persecution in Malaysia. Indirect refoulement refers to the risk that Transferees may be returned to their country of persecution following their transfer to Malaysia.[51]

3.32      In addition to the obligation in Article 33(1) of the Refugee Convention, submitters and witnesses identified further non-refoulement obligations to which Australia is subject, which extend beyond threats to a person's life or liberty, including:

• a prohibition on refoulement under Article 3 of CAT, where there are substantial grounds for believing that a person would be in danger of being subjected to torture on his or her return;[52]
• a prohibition on refoulement arising from Articles 6 and 7 of the ICCPR and Article 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination,[53] which have been interpreted by the United Nations Human Rights Committee as prohibiting the removal of a person to another country in circumstances where there is a real risk that his or her rights under those covenants will be violated;[54] and
• a prohibition under the CRC on the return of a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child.[55]

Direct refoulement

3.33      On the basis of evidence received, it is clear that the arrangement may contravene Australia's obligations to prevent the direct refoulement of Transferees since the blanket designation of Malaysia as a 'safe' third country under section 198A of the Migration Act is inconsistent with Article 33(1) of the Refugee Convention. The committee was informed that the obligation of non‑refoulement requires a case-by-case determination that a particular country is safe for a particular individual.[56]

3.34      Provisions of the arrangement which purport to discharge Australia's obligations to avoid direct refoulement do not appear to guarantee that an appropriately rigorous approach will be taken in making case-by-case determinations as to whether Malaysia is a safe country for individual Transferees. For example, the group of academics specialising in refugee law (Australian Refugee Law Academics) were critical of clause 9(3) of the arrangement and Item 1 of the Operational Guidelines. Clause 9(3) provides that Australia will implement 'appropriate pre-screening mechanisms in accordance with international standards before a transfer is effected', and item 1 of the Operational Guidelines sets out certain pre-screening and assessment tasks.[57]

3.35      The Australian Refugee Law Academics argued that these provisions are inadequate because they do not provide transparent or comprehensive assessment criteria. The academics also noted that 'the Operational Guidelines stipulate only the gathering of biodata, basic security checks and fitness to travel assessments' and do not provide for 'a proper legal assessment of individuals' claims for protection'.[58]

3.36      Several submitters and witnesses also expressed the view that the following factors create a real risk that Transferees may be subjected to direct refoulement in Malaysia – that is, treatment in breach of their rights under treaties including the Refugee Convention, CAT, the ICCPR, the ICESCR and the CRC:

• the arrangement is not legally binding on Malaysia, meaning that there are no enforceable safeguards against the risk of refoulement.[59]
• Malaysia is not a signatory to the same treaties as Australia which contain non-refoulement obligations – in particular, Malaysia is not a signatory to the Refugee Convention, CAT, the ICCPR or the ICESCR and, although Malaysia is a signatory to the CRC, it has made substantial reservations in respect of many Articles;[60]
• Malaysia lacks domestic legislation which provides equivalent legal rights and protections to Transferees, to those contained in the relevant treaties;[61] and
• Malaysia has a documented history of ill-treatment and discrimination towards asylum seekers and refugees.[62]

3.37      The Australian Human Rights Commission (AHRC) expressed concern that there are inadequate provisions in the arrangement for Transferees who are found by Malaysia not to satisfy the criteria in the Refugee Convention, but who may have complementary protection needs: that is, such persons may be in need of protection under other human rights conventions to which Australia is a party. The AHRC's view was that the arrangement contains inadequate operational details as to how claims for protection in these circumstances would be assessed,[63] and this lack of detail fails to safeguard against the risk of refoulement of such Transferees.[64]

Indirect refoulement

3.38      Submitters also argued that the arrangement fails to safeguard against the risk that Malaysia may return Transferees to their countries of persecution. In particular, Australia's obligations to prevent indirect refoulement require it to ensure that Transferees have access to 'fair and efficient procedures' in Malaysia for determining their refugee status. The arrangement fails to establish such procedures because:

• Malaysia lacks an adequate domestic procedure, guaranteed by law, for making refugee status determinations, and its undertaking to respect the principle of non-refoulement in clause 10(2) of the arrangement is not legally binding;[65]
• under the arrangement, the UNHCR is merely permitted, at the grace of the Malaysian Government, to conduct such determinations. As a non-state party, the UNHCR lacks the resources of government to conduct assessments and is unable to guarantee that the Transferees whom it assesses as meeting the criteria of the Refugee Convention will not be refouled by the Malaysian Government;[66] and
• notwithstanding that the principle of non-refoulement is part of customary international law, Malaysia has a history of non compliance. For example, the Australian Refugee Law Academics referred to reports of the refoulement of Uighurs from Malaysia, after the signing of the arrangement.[67]

Obligations of non-discrimination and non-penalty for unlawful arrival

3.39      Several submitters and witnesses argued that the arrangement is inconsistent with Australia's obligations under Articles 3 and 31 of the Refugee Convention not to discriminate against refugees on the basis of race, religion or country of origin; or to penalise refugees and – by extension – asylum seekers, for the unlawful manner of their arrival in Australia.[68]

3.40      In particular, the arrangement subjects Transferees to conditions less favourable than those afforded to persons whose protection applications are processed in Australia, which may constitute a penalty under Article 31.[69] Specific instances of less favourable treatment include:

• the mandatory detention of Transferees in Australia pending their transfer to Malaysia, and the refusal of the Australian Government to process their applications for protection in Australia;[70]
• the removal of Transferees from Australia for processing (and potentially long‑term residence) in Malaysia (which, as noted above, has a history of ill‑treatment towards refugees and asylum seekers);[71] and
• the potential liability of certain Transferees to criminal sanctions under Malaysian law because they have travelled through Malaysia illegally on their way to Australia.[72]

Conditions in Malaysia

3.41      According to the UNHCR, there are approximately 90,000 refugees and asylum seekers currently in Malaysia.[73] Several submissions provided the committee with evidence of the conditions for, and treatment of, refugees and asylum seekers in Malaysia.[74]

3.42      Amnesty International Australia (Amnesty) and Dr Judyth Watson, a CARAD Board member, provided detailed information on the conditions and issues which confront asylum seekers and refugees in Malaysia:

• Malaysian law does not distinguish between illegal migrant workers and asylum seekers/refugees as there is no legislative framework with respect to refugees. Asylum seekers and refugees have no right to do paid work are often forced to work in dangerous and dirty jobs, subject to exploitation, and risk arrest by police and immigration officials in order to survive.
• Asylum seekers and refugees are at risk of detention or arrest. People in breach of Malaysia's immigration laws are detained in overcrowded centres, then sentenced to jail. They are also often forced to pay fines.
• Regular immigration raids and arrests are carried out by state agents and by a volunteer citizens' police force, the People's Volunteer Corps (Ikatan Relawan Rakyat or RELA).
• Refugees and asylum seekers in Malaysia are regularly subjected to mistreatment in Malaysian detention centres.
• Malaysian authorities engage in the practice of caning. In 2002, the Malaysian Government passed a law endorsing caning as a form of punishment for immigration violations. With no option but to violate immigration laws (such as having to work), asylum seeker and refugees in Malaysia regularly risk being caned.
• Refugees and asylum-seekers in Malaysia are vulnerable to abuse and violence in their homes, in public, and at their places of work because they have no rights and little protection.[75]

3.43      Amnesty has produced a report which details the torture and other mistreatment that refugees and asylum seekers are subjected to in Malaysia. In particular, Amnesty notes the risk of, and injuries sustained from, caning:

Illegal entry and re-entry to Malaysia after deportation are punishable by caning. Refugees and asylum seekers...are at risk of caning.

...

Those who are convicted of illegal entry are normally caned up to three times, although the law allows for them to be caned up to six times. The cane cuts through the skin and leaves scars that are visible months later.[76]

3.44      Amnesty's report also highlights the involvement of RELA in immigration raids and checks:

RELA's approach is particularly problematic, consisting of crude profiling based on apparent race or ethnicity, and a general attitude of "arrest now, investigate later". These largely untrained RELA agents frequently subject the people they arrest to humiliation, physical abuse, theft and extortion.[77]

3.45      The Darwin Asylum Seeker Support and Advocacy Network (DASSAN) provided an account from refugee, R, who is now living in Darwin, of his experiences in Malaysian detention camps:

...R experienced raids by Malaysian authorities during which he was physically abused, with excessive punching and kicking, and was arrested.

...

In relation to conditions in the detention camps in Malaysia, R reports that there was overcrowding, physical abuse by the authorities directed toward the refugees, sexual harassment and insufficient food and drinking water. These conditions lead to malnutrition, mental damage and some detainees contracting tuberculosis.[78]

Standards of treatment

3.46      Pursuant to the arrangement, the Malaysian Government has made certain commitments with respect to asylum seekers transferred from Australia, including:

• facilitation of the lawful presence of Transferees in Malaysia;[79] and
• acknowledgement that Transferees will enjoy standards of treatment consistent with those set out in the Operational Guidelines.[80]

3.47      The Operational Guidelines provide that the lawful presence of the Transferees in Malaysia will be facilitated through an exemption under the Malaysian Immigration Act.[81]

3.48      The arrangement provides that 'Transferees...will be treated with dignity and respect and in accordance with human rights standards'.[82] The Operational Guidelines provide that, following departure from the Transit Centre, 'Transferees will enjoy an adequate standard of treatment including having access to the same support as other asylum seekers and refugees in the community'. In limited circumstances, 'modest' backup safety-net provisions will be available through IOM on an 'as needs' basis.[83] The Operational Guidelines make specific provisions for accommodation,[84] self-reliance opportunities,[85] education,[86] and medical services.[87]

Compliance with human rights standards

3.49      A number of submissions highlighted the lack of enforceability of the standards of treatment contained in the Malaysian Arrangement and the Operational Guidelines, because neither the arrangement nor the Operational Guidelines are legally binding.[88]

3.50      Aside from the lack of enforceability of the standards of treatment, submitters also remarked that the standards provided for in the arrangement and the Operational Guidelines do not meet international law obligations or human rights standards.[89]

3.51      In relation to the provision of education, the Refugee Council of Australia argued that the standard under the Malaysian Arrangement falls well short of obligations under the Refugee Convention:

...[T]he operational guidelines stipulate that transferees of school age will have access to private education (presumably at their own cost) or, where such arrangements are not available or affordable, to informal educational arrangements.

This is a far lower standard than that required by the Refugee Convention, which stipulates that refugees should have access to elementary education on the same basis as nationals.[90]

3.52      Human Rights Watch noted that '[n]either private education nor informal education meet the standards for the right to free and compulsory primary education in article 28 of the Convention on the Rights of the Child, to which both Australia and Malaysia are parties'.[91]

3.53      With respect to the standards for the provision of healthcare, the AHRC referred to the provisions in the ICESCR and the CRC which provide that all people have a right to the highest attainable standard of physical and mental health:

Despite this, the operational guidelines state simply that 'Transferees will have access to basic medical care under arrangements UNHCR has for asylum seekers and refugees with some private clinics' and that 'existing IOM arrangements with a private hospital' will be used when emergency medical assistance is required.

Neither the arrangement nor the guidelines make mention of timeframes for the provision of health services; provision of specialist medical care; access to dental care; access to mental health care; or access to torture and trauma counselling.[92]

3.54      In addition, the AHRC highlighted concerns that it has regarding standards of housing and employment for Transferees to Malaysia:

International human rights standards provide that everyone is entitled to an adequate standard of living for themselves and their families, including adequate food, clothing and housing. It is not clear whether appropriate provision will be made in this regard for people transferred to Malaysia. The operational guidelines state that people who are transferred will be provided with basic accommodation and a subsistence allowance for one month, after which time they are expected to become self-sufficient through employment and move into private accommodation. While the guidelines provide for some assistance to be provided to needy asylum seekers by the [IOM and the UNHCR] after this initial period, there is a lack of clarity about the circumstances in which such assistance will be provided and the form that it will take...[I]t also appears that asylum seekers transferred to Malaysia may not receive formal work permits which would ensure their legal right to employment. In these circumstances, it is unlikely that people transferred to Malaysia would have any industrial safeguards or avenues or recourse, for example, in the event that their employer refuses to pay them.[93]

Other issues

3.55      Mr Andrew Bartlett commented on the role that the UNHCR and IOM will be required to fulfil in assisting the 800 Transferees, expressing concern that these organisations may not have adequate resources in Malaysia to engage in this role.[94] The group of Australian Refugee Law Academics also observed:

Much of the assistance provided for by the [Operational] Guidelines is to be delivered by UNHCR or IOM. Indeed, the Arrangement was concluded 'on the basis that UNHCR and [IOM] can fulfil the roles and functions envisaged in the Operational Guidelines'. The resources of these organisations, particularly UNHCR, are extremely limited.[95]

3.56      Concerns have been expressed that the Malaysian Arrangement creates a 'two tiered refugee system' in Malaysia.[96] Dr Judyth Watson from CARAD, for example, has noted that the 800 Transferees are already being referred to as 'gold card' holders.[97] Similarly, Human Rights Watch, while welcoming the Malaysian Government's recognition of asylum seekers as being lawfully present in that jurisdiction, nevertheless articulated its opposition to the arrangement:

[I]t is unacceptable to create a special exception for 800 people because they are being swapped when some 90,000 other refugees and asylum seekers living in Malaysia—with similar claims and vulnerability—remain as 'illegal migrants' under Malaysian law, subject to arrest, detention, and deportation.[98]

Unaccompanied minors

3.57      Several submitters raised concerns about the implication of sending unaccompanied minors to Malaysia, describing the situation variously as 'dire',[99] 'grim',[100] and a 'real threat to the welfare of child transferees'.[101] The welfare of unaccompanied minors at both the pre- and post-transfer stages was of greatest concern.

3.58      For example, the AHRC submitted that – in addition to the possibility that such a transfer may breach certain fundamental rights of the child, including those relating to non-refoulement, liberty, and access to healthcare and education – the arrangement does not clearly detail the guardianship arrangements for unaccompanied minors in Malaysia:

The operational guidelines anticipate that people transferred under the arrangement will be 'handed over' to Malaysian authorities upon arrival in Malaysia. From that point, unaccompanied minors will be beyond the care and custody of the Minister for Immigration and Citizenship, who is their guardian under Australian law. In contrast to Australian law, Malaysian law permits, but does not require, the appointment of a guardian in respect of persons seeking asylum who are unaccompanied minors. It is unclear what arrangements have been made for the appointment of a guardian for any children transferred under the arrangement.

In short, unaccompanied minors transferred under the arrangement would be sent to a country with a poor record for the treatment of asylum seekers and refugees, in the absence of clear, mandated arrangements for their guardianship, care and custody. The [AHRC] is gravely concerned about the fate of any unaccompanied child placed into these circumstances.[102]

3.59      Submitters identified additional weaknesses in the detail of the Malaysian Arrangement concerning unaccompanied minors, such as:

• the arrangement does not – and cannot, on account of its non-legally binding nature – provide a guarantee that Malaysia will adhere to its international and domestic legal obligations in respect of unaccompanied minors;[103] and
• Malaysia is not, in any event, under a domestic legal obligation to appoint a guardian to unaccompanied minors who are transferred under the arrangement, but is merely invested with the discretion do so.[104]

3.60      Some submitters and witnesses also argued that the Minister has conflicting roles in relation to unaccompanied minors, due to the Minister's role as their legal guardian on the one hand, and as immigration decision-maker on the other.[105]

3.61      Liberty Victoria commented on the apparently conflicting nature of the Minister's duties as guardian – that is 'nurturer and protector' – and Immigration Minister – that is, 'detainer, immigration decision-maker [and] deporter'.[106] Australian Lawyers for Human Rights expressed similar concerns:

In the course of the proceedings before the High Court, it became clear that there was little in place in Malaysia to respond to the particular needs of unaccompanied minors. Given the onerous responsibilities that the Minister for Immigration holds as legal guardian of unaccompanied minors, any attempt at legislative amendments to relieve him of those responsibilities in order to effect the transfer of unaccompanied minors manifestly not in their best interests would itself conflict with his 'best interests' responsibilities under article 3 of the Convention on the Rights of the Child. In any other event, it would seem inconceivable that transfer could ever be regarded as being in the best interests of a child.[107]

3.62      A number of submissions also noted the implications of the High Court's decision, namely:

• an unaccompanied minor may not lawfully be taken from Australia without the Minister's written consent provided specifically under the Guardianship of Children Act; and
• administrative decisions made under the Guardianship of Children Act concerning the transfer of unaccompanied minors are amenable to judicial review.[108]

Resettlement of 4,000 refugees in Australia

3.63      Submitters and witnesses generally welcomed the provision in clause 5 of the Malaysian Arrangement for the resettlement of 4,000 refugees from Malaysia to Australia over a four-year term. However, many were critical of the 'swap' effected by this provision when operating in combination with clause 4, which enables the transfer of 800 asylum seekers to Malaysia.[109] For example, Amnesty argued:

While increasing resettlement numbers directly from Malaysia is a welcome move, there is no need for Australia to link this increase with the expulsion of 800 asylum seekers who have arrived here by boat.[110]

3.64      The Refugee Council of Australia described the resettlement of 4,000 refugees in Australia as a 'potentially positive aspect of the arrangement', but expressed concern that the 'swap' effected by clauses 4 and 5 'sets a number of problematic precedents'. In particular, it argued that this aspect of the arrangement fails to adopt a protection-centred approach to resettlement:

The arrangement with Malaysia undermines the principle that resettlement, while it can be used strategically, is first and foremost a mechanism for protection. UNHCR maintains that, even in cases where resettlement is used as a strategic tool, 'the first purpose of resettlement must always be the provision of individual protection for those who cannot be provided secure asylum in a first asylum country'.

The provisions of the arrangement, however, do not reflect this principle. The operational guidelines stipulate that the 4,000 persons resettled 'must be able to establish they entered Malaysia and were registered by UNHCR prior to the date of signing of the Arrangement and have remained in Malaysia'. The resettlement allocation will not, therefore, include refugees who arrived in Malaysia after the arrangement was finalised or any of the 800 transferees – even if they are considered by UNHCR to be priority cases for resettlement.[111]

3.65      The committee also heard evidence about the Department's approach to counting the number of refugees to be resettled in Australia under clause 5 of the Malaysian Arrangement. An officer from the Department stated that the arrangement operates in tandem with Australia's existing humanitarian resettlement program, explaining that the 4,000 refugees resettled from Malaysia under the arrangement (at a rate of 1,000 refugees per year) will be additional to intakes under the existing resettlement program from Malaysia (currently 200-500 refugees per year).[112] According to the Department, this means that Australia will offer a global total of 14,750 resettlement places annually over the term of the Malaysian Arrangement.[113]

3.66      The departmental officer advised the committee that the government has not put in place any process to identify the refugees resettled pursuant to the arrangement (that is, the additional 1,000 places per year).[114] Rather, the 1,000 new places are added to the existing resettlement intake of around 200-500 places, to create a total figure in respect of Malaysia. The officer stated that the Department will report figures on the number of refugees being resettled out of Malaysia, and anticipates that the annual total 'will be somewhere between 1,300 and 1,500 depending on what UNHCR global priorities and processing deliver'.[115]

3.67       Due to this intermixing of resettlement numbers, departmental representatives were unable to provide the committee with any information at the public hearing on how many refugees – if any – have been resettled pursuant to the arrangement.[116] An officer of the Department advised that the first 1,000 refugees resettled from Malaysia will be deemed to be the 1,000 resettled under the Malaysian Arrangement.[117]

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