CHAPTER 4

Committee view and recommendations

4.1        In the committee's view, the terms of the Malaysian Arrangement and the associated Operational Guidelines, along with their practical implementation, are fundamentally and irreversibly flawed. In particular, the committee strongly believes that the Malaysian Arrangement is lacking in significant detail and, most importantly, fails to address serious human rights issues.

Non-legally binding nature of the Malaysian Arrangement

4.2        At its most basic level, the arrangement is inadequate and unacceptable because it is extraordinarily imprecise in nature, and includes the use of vague language and terms which are not defined and which appear only to reflect the 'political commitments' of the parties. Since the Malaysian Arrangement is non-legally binding, there is absolutely no means to enforce the obligations of the parties under the arrangement.

4.3        Malaysia has apparently undertaken major obligations in relation to the principle of non-refoulement of asylum seekers; to treat asylum seekers with dignity and respect and in accordance with human rights standards; and to deal with the special needs of vulnerable cases, including unaccompanied minors.[1] However, the Australian Government is powerless in the event that Malaysia does not comply with the arrangement. As the Ombudsman highlighted to the committee, there are no steps which can be taken by the Joint Committee or the Advisory Committee – the only bodies likely to be providing any form of oversight or monitoring of the arrangement – in the event that there is any breach of the arrangement.

4.4        The committee is not satisfied with assertions made by the Department that 'a number of the arrangements and understandings that Australia has entered into are not in fact legally binding',[2] and that '[i]t is not in the interest of either government that the arrangement not be successfully implemented' because both governments entered into the arrangement in good faith with the intention of meeting their respective commitments.[3] The arrangement itself needs to include sufficient, binding and enforceable safeguards. A clause providing for the resolution of differences ('to be resolved as soon as reasonably practicable by consultation between the parties') – which is apparently how the Australian Government envisages breaches by Malaysia will be addressed – is simply not adequate.

Malaysia is not a party to the Refugee Convention

4.5        In terms of selecting Malaysia as the location to process the protection claims of the 800 Transferees, the Australian Government has completely ignored that Malaysia is not a party to the Refugee Convention.

4.6        The committee accepts the advice of the Department that it is a 'long understood position' that the Refugee Convention does not confer upon asylum seekers a right to 'demand' that the particular contracting state in which they arrive must process their claim and, if upheld, grant them a right to re-settle.[4] However, at a minimum, the Australian Government should meet the Prime Minister's previous commitment to 'rule out' sending asylum seekers who travel to Australia by boat to countries which are not a signatory to the Refugee Convention.[5].

Pre-transfer arrangements

4.7        The Department placed significant emphasis on the pre-removal assessment in terms of ensuring:

• the non-refoulement of a potential Transferee where that person fears persecution in Malaysia;
• the identification of vulnerabilities and heightened risks, particularly focusing on unaccompanied children; and
• confirming fitness to travel.[6]

4.8        The Department noted in its supplementary submission that 'pre-removal/transfer guidelines' (Pre-removal Guidelines) have been developed.[7] However, for reasons which are not apparent to the committee, the Pre-removal Guidelines were not been included in the arrangement. Further, the Department did not see fit to provide a copy of the Pre-removal Guidelines to the committee as part of its submission, nor was the Department able to provide a copy at the hearing to enable the committee to consider the document during the course of the hearing.[8] In the committee's view, given the importance of the procedures set out in the Pre-removal Guidelines, this document should have been provided to the committee as soon as possible after the hearing. Instead, the document was not provided to the committee until a week after the hearing, as part of the Department's responses to questions taken on notice.[9]

4.9        The committee also notes that the Commonwealth and Immigration Ombudsman has requested a copy of the Pre-removal Guidelines and has not been provided with a copy, even though the Ombudsman's request was made more than a month ago.[10] The Department's reluctance to provide the Pre-removal Guidelines to the Ombudsman comes in spite of the fact that the Ombudsman's office has a statutory responsibility for work in this area.[11]

4.10      In the absence of the Pre-removal Guidelines being available to the committee at the hearing, members of the committee were forced to spend considerable time questioning officers of the Department to determine the processes provided for in the document, and how pre-removal assessments would apply in specific scenarios.[12]

Conditions in Malaysia

4.11      According to the Malaysian Arrangement, Malaysia is obligated to treat the Transferees with 'dignity and respect and in accordance with human rights standards'.[13] Further, pursuant to the Operational Guidelines, 'Transferees will enjoy an adequate standard of treatment, including having access to the same support as other asylum seekers and refugees in the community'.[14]

4.12      Aside from the obvious issue that, due to the non-binding nature of the arrangement, the Australian Government has no way of ensuring that these standards of treatment are upheld in Malaysia, the committee has a number of other concerns regarding the treatment of the asylum seekers transferred to Malaysia.

4.13      Conditions for refugees and asylum seekers in Malaysia are nothing short of appalling with harassment and violence part of the refugee community's daily experience, and the threat of arrest a constant.[15] In particular, the committee is gravely concerned at the past involvement of RELA, the volunteer citizens' police force, in immigration matters, particularly in light of RELA's well-documented history of extortion, intimidation, harassment and abuse of asylum seekers and refugees.

4.14      The committee is somewhat encouraged by evidence from the UNHCR that 'the activities of RELA have been scaled back and that the Malaysian Government is involved in a significant initiative (6P Programme) to regularise the legal status of all illegal migrants'. Further:

Many persons of concern to UNHCR stand to benefit from this Programme by having their status regularised.  It would mean all refugees in Malaysia would, in addition to their registration and ID documents for UNHCR, be registered within the Government's immigration data base and thus protected from arbitrary arrest and detention. It would also mean that all refugees in Malaysia would have the right to work on a par with legal migrants in the country. This would also entitle them to the same insurance and health schemes as documented, legal migrant workers...

For present purposes, the Arrangements would have involved a legal status (and documentation proof) for transferees and this, subject to adequate monitoring and other safeguards, would have served as a significant safeguard against any exposure to RELA or arbitrary arrest.[16] 

4.15      The committee also notes the Department's advice that 'RELA are not responsible for in any way imprisoning or incarcerating these people in Malaysia'; and that the Undersecretary International Division, Malaysian Ministry of Home Affairs indicated during the course of negotiations on the Malaysian Arrangement that 'RELA are no longer involved in immigration matters', instead 'now focussing on a new direction for the agency'.[17]

4.16      However, it is unclear what this 'new direction' is and the committee is of the view that RELA's continuing involvement in the enforcement of immigration matters is possible, particularly given that it is unknown how many RELA there actually are in Malaysia. In May 2007, Human Rights Watch reported that the Malaysian Government had authorised 'almost half a million RELA volunteers to help maintain public order'.[18] In August 2010, Amnesty International noted that RELA aimed to expand its membership from 1.6 million to 2.6 million by the end of 2010.[19] Such figures are extraordinary and the committee considers that it would be extremely difficult, if not impossible, to regulate or control all aspects of RELA's activities.

4.17      The risk to refugees and asylum seekers of being caned in Malaysia is also a serious concern for the committee. The committee appreciates the advice of the Department that the exemption granted under Malaysian immigration laws to the 800 Transferees means that they will not have committed an offence, and therefore will not be subject to caning, in relation to entering Malaysia without appropriate documentation.[20]

4.18      However, as Amnesty has pointed out, caning is not only used for immigration offences, it is a supplementary punishment for approximately 40 other crimes.[21] On the risks to Transferees of being punished by caning for non-immigration related offences, a departmental representative told the committee:

As per normal for anyone who goes to a country like Malaysia, or to the US or wherever, if you commit an offence you will be subject to their criminal laws.[22]

4.19      In response to concerns raised during the inquiry about the treatment of asylum seekers in Malaysia, another representative from the Department told the committee:

Australia does not accept that it has a legal obligation that persons outside our territory have to be accorded with the same standards of treatment in all respects as they would have received had they remained in Australia. In the case of transfers to countries for processing outside Australia, we have, however, accepted a moral obligation to ensure that such people are accorded reasonable standards of treatment.[23]

4.20      In the committee's view, if the transfer of asylum seekers to Malaysia proceeds then the Australian Government will have failed dismally in fulfilling any so-called 'moral obligation'. Further, it is astonishing that the Department 'is satisfied with assurances provided by the Malaysian [G]overnment' that caning will not occur, at least partly on the basis that the arrangement was 'negotiated in good faith and freely entered into by Malaysia'.[24]

Identification of the 800 Transferees

4.21      In relation to the ability of the 800 Transferees to be identified in Malaysia as subject to the Malaysian Arrangement, the Department detailed the operation of the Nexcode (Foreign Identification) label which will be affixed to the identification cards of individuals.[25] However, the Department made several significant concessions in relation to the operation of the card. First, the Department was unable to give the committee any assurances in relation to the safeguards built into the card to ensure the security of the document system. Instead the Department referred to measures such as 'special printing, design and laminar surfaces that are put over the top of the card that reflect in certain kinds of light' and concluded, on the basis of these measures, that it was 'satisfied that there are reasonable safeguards in place to protect the use of the card'.[26]

4.22      Second, the Department indicated that, despite the emphasis placed on the presence of the Nexcode sticker on the card for identification purposes, only 'normal Malaysian law enforcement and immigration authorities' will have access to the card readers necessary to read the Nexcode sticker. The Department then went on to advise that 'this has been structured such that you do not actually need a card reader to identify the person as being subject to the Arrangement'.[27] It is therefore not clear to the committee why the Department has placed such an emphasis on the Nexcode sticker as a means of identifying the 800 individuals who are subject to the arrangement, if the card reader for the sticker is not readily available, nor in fact necessary.

4.23      In the committee's view, the identification card and Nexcode sticker measures are manifestly inadequate to ensure the identification of the 800 individuals that are being transferred to Malaysia and to guarantee the standard of treatment which they are to be accorded under the arrangement. This is particularly the case given the evidence that the committee received as to the disregard which is shown for refugees in Malaysia who have managed to be granted a UN registration card.

Unaccompanied minors

4.24      In the committee's view, the provisions made under the Malaysian Arrangement with respect to unaccompanied children are completely unacceptable.

4.25      Specific provision needs to be made for unaccompanied minors to have representation with respect to their legal rights during any pre-removal interview. The committee does not take any comfort in the fact that unaccompanied children will be accompanied at interview by an 'independent observer'.[28] Nowhere in the list of roles fulfilled by the independent observer will that person be required to advocate for the legal rights of the child. That is the role of the child's legal guardian and, in the committee's view, it is necessary that a person representing the child's legal interests be present at the interview.

4.26      Further, explicit provision needs to be made for the transfer of guardianship of children in Malaysia. The Australian Government simply cannot rely on an expectation that an official of the Malaysian Government will become the guardian to unaccompanied children. To send unaccompanied minors to Malaysia without making detailed provision for their guardianship on arrival is a dereliction in the Minister's duty as legal guardian of these children.

Recommendation 1

4.27      The committee recommends that the Australian Government not proceed with the implementation of the Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement, due to the obvious flaws and defects in that arrangement.

Senator Gary Humphries

Chair

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