Immigration Advice & Rights Centre Inc.

The Senate Inquiry into the Malaysian Arrangement proposed by the Australian Federal Government began 17 August 2011, and a report was produced 11 October 2011. The result of the report was a recommendation from the Senate Committee that the Australian Government not proceed with implementation of the Arrangement. In making its recommendation, the Committee considered thirty-seven submissions on the Arrangement from various organizations and individuals. It also held a public hearing in Canberra in September 2011, where fifteen individuals appeared, including Government representatives from the Department of Immigration and Citizenship. A full list of those submissions and appearances which were relied on can be found at http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/report. The Committee’s reasoning for its recommendation is summarised below:

Non-legally binding nature of the Malaysian Arrangement

The Senate Committee identified three main issues with the non-legally binding nature of the Malaysian Arrangement.

Firstly, it found that the language and terms of the Arrangement are very vague, which means rather than expressing solid obligations, they tend to merely express the ‘political commitments’[1] of the parties to the Arrangement.

Secondly, it found that the non-legally binding nature of the Arrangement means that the Australian Government is completely powerless to take any sort of action or enforce any sort of obligation in the event that Malaysia does not comply with the terms of the Arrangement.

Thirdly, the Committee found that the conflict resolution clause contained within the Arrangement, which stipulates merely that in the case of a conflict the parties consult to resolve said conflict as soon as is reasonably practicable, is completely inadequate at providing an effective resolution to conflict between the parties to the Arrangement.

Malaysia is not a Party to the Refugee Convention

The Committee found that the Australian Government should honour the commitment made by the Prime Minister in a radio interview in July 2010 that countries which are not signatories to the Refugee Convention will be disqualified from consideration as possible offshore processing destinations for asylum seekers travelling to Australia by boat.

Pre-transfer Arrangements

The Committee made strong note of the reluctance of the Government to ensure ease of access for the Committee or the Commonwealth and Immigration Ombudsman to the Pre-removal Guidelines, which stipulate the assessments that must be made on an asylum seeker prior to transfer to Malaysia under the Arrangement. The Committee emphasised the difficulties this reluctance posed for their decision making process.

Conditions in Malaysia

The Committee expressed grave concern at the conditions asylum seekers currently face in Malaysia, including harassment, violence, and the constant threat of arrest. It expressed special concern regarding the volunteer Malaysian citizens’ police force, RELA, which it stated would be difficult to regulate or control, and has a “well-documented history of extortion, intimidation, harassment, and abuse of asylum seekers and refugees.”[2]

A further concern for the Committee was the use of caning in Malaysia, not just as a penalty for being found to be an illegal immigrant, but for approximately forty other crimes under Malaysian law. Although the Committee was pleased that the Malaysian Government has launched an initiative which will give some form of legal status to illegal immigrants, asylum seekers, and refugees, the Committee also noted that the Australian Government has no way of ensuring any legal rights or human rights standards are upheld in Malaysia. The Government had stated during the public hearing in September 2011 that they accept a moral obligation to ensure that transferred asylum seekers receive reasonable standards of treatment, but the Committee found that a transfer of asylum seekers to Malaysia would fail to fulfil any such moral obligation.

Identification of the 800 Transferees

The Committee found that the proposed security safeguards to ensure identification documents for the transferred asylum seekers, consisting of the use of an identification card bearing a Nexcode sticker, are inadequate to guarantee the safety of the transferred asylum seekers in Malaysia. The Committee highlighted the fact that technology to read the Nexcode stickers will only be accessible to normal Malaysian law authorities, meaning RELA citizen police will not have the means to identify the transferred asylum seekers as being genuine and protected by law. The Committee further highlighted the fact that asylum seekers currently residing in Malaysia are subject to sub-standard treatment, even when bearing a UN granted refugee registration card. Therefore, the Committee found that the proposed identification documents to be issued to asylum seekers transferred under the arrangement would accord no guarantee of safety for the transferred asylum seekers.

Unaccompanied Minors

The Committee found that unaccompanied minors’ rights failed to be met by the Arrangement in two key areas.

Firstly, the Committee found that the Arrangement did not make provisions for an unaccompanied minor to have the requirement of an adult present at their pre-removal interview whose purpose is to advocate for the child’s legal rights. The Committee found that, because all children require a legal guardian, an asylum seeker who is an unaccompanied minor requires an adult legal advocate to be compulsorily present during their pre-removal interview to fulfil such a role.

Secondly, the Committee found that the Arrangement is deficient in an “explicit provision”[3] that would transfer the legal guardianship of unaccompanied minors upon arrival in Malaysia from the Australian Minister for Immigration, to an appointed Malaysian official. The Committee called attention to the fact that the Arrangement in its current state makes no provision for legal guardianship of unaccompanied minors once they are transferred to Malaysia.