JAKARTA - A proposed refugee exchange agreement between Australia and Malaysia
has foundered on legal controversy and ethical questions that have put an
uncomfortable spotlight on Canberra's refugee policies.
Agreed to on July 25, the bilateral deal stipulated that Australia would send
800 asylum-seekers in its custody to Malaysia for refugee processing in
exchange for receiving over the next five years 4,000 refugees now registered
The deal, challenged by a group of refugees and awaiting a ruling by an
Australian high court, aims to curb the growing number of boat people arriving
on Australia's shores. From 2002 to 2008, a total of 25 boats with
asylum-seekers washed into Australian waters. That number has risen
dramatically in recent years, with
134 arriving last year, more than double the 61 boats recorded in 2009.
The rising number of boat people arriving in Australia is consistent with a
global spike in asylum-seekers. Since 2009, political unrest and conflict in
countries like Afghanistan, Iraq, Myanmar, Somalia and Sri Lanka has driven a
growing number of refugees to seek the safety of second countries.
Despite concerns a rising tide of refugees could cause a domestic backlash,
Australia received 8,250 asylum applicants in 2010. Compared with other Asian
countries, Australia has a liberal reputation for offering permanent
resettlement and providing opportunities for newcomers to find jobs and
These factors, including Australia's relative wealth, have attracted refugees
Down Under even though other nations in Southeast Asia are often closer to the
war-torn nations from where the refugees have fled. Even though arriving by air
is costly and by sea treacherous, enough refugees now seek asylum each year
that Australian politicians are keen to temper the country's "safe-haven"
The agreement between Australia and Malaysia is an outgrowth of the so-called
Bali Framework on Human Trafficking, which was initiated by Australia and
Indonesia and formally endorsed by 41 Asia-Pacific countries in March this
year. One of the options for action outlined in the framework is the
development of bilateral arrangements to undermine the incentives for human
While Australia's proposed arrangement with Malaysia does deal with issues of
human smuggling, it's critics say it fails to address the rights of the boat
people who will be sent to Malaysia. That's in large part because Kuala Lumpur
does not recognize the 1951 Refugee Convention, thus officially there are no
"refugees" or "asylum-seekers" in Malaysia.
Instead, all 90,000 undocumented migrants now in Malaysia are classified as
"illegal immigrants" and are subject to deportation even if the United Nations
High Commissioner for Refugees (UNHCR) determines they are refugees under
international law - namely a person who flees his or her home country "owing to
a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion."
Malaysia claims that the 800 asylum-seekers it would take from Australia will
receive "special treatment", though without any legal commitments in the deal
itself there are no guarantees. The "special treatment" envisioned by Malaysia
is reminiscent of the vow it made to Acehnese refugees that came to Malaysia in
the wake of the 2004 tsunami that devastated Indonesia's nearby Sumatra island.
In 2004, Malaysia provided Acehnese refugees with a special work permit, known
as a "tsunami card", but immigration officers and volunteer civilian police
forces rarely recognized the validity of the card. As a result, Acehnese with
the permit were regularly arrested, detained and deported. While the refugees
arriving from Australia may receive special documentation at their port of
entry in Malaysia, they may not be treated any differently than other migrants
once inside the country.
Casting off the castaways
If the terms of Australia's deal with Malaysia seem shortsighted and
potentially misguided, it may be because Malaysia was Australia's plan B
partner for a refugee deal. Australia initially pressured neighboring East
Timor for over a year to host a regional refugee processing center, but Dili
rejected the offer in July 2010. According to Dili's vice foreign minister,
Alberto Xavier Pereira Carlos, East Timor would have been burdened by a refugee
facility that it lacked the capacity to manage.
History shows East Timor's caution was justified. In 2001, Australia and Nauru
agreed to terms in which refugees arriving in Australia by boat would be
transferred to detention camps in Nauru to await processing. A portion of the
boat arrivals whose asylum applications could be quickly verified by Australian
authorities were resettled swiftly in New Zealand or Australia. For the others,
life in Nauru amounted to a form of imprisonment considering the island's harsh
The Nauru deal - part of what was then referred to as the "Pacific Solution" to
Australia's perceived refugee crisis - initially succeeded in reducing the
number of illegal arrivals in Australian waters and was seemingly favored by
the Australian population. However, in 2008, Australia closed the Nauru center
because of criticism from human-rights groups about the poor living conditions
of the refugees-in-waiting.
Still, Australia clearly has not given up on the idea of outsourcing its
refugee processing to a second country. On August 15, Australia concluded a
deal with Papua New Guinea to use its island of Manus as an alternative site to
sending asylum-seekers to Malaysia. Like Nauru, East Timor and Malaysia,
Australia apparently believes future potential refugees will be less attracted
to being parked at Papua New Guinea than Australia and thus fewer will set sail
for Australian waters.
Those who have made the voyage, however, are increasingly demanding their
rights. Nearly one month after the deal with Malaysia was signed, 42 of the
asylum-seekers in Australia challenged the legality of the agreement, arguing
that they should not be sent to Malaysia where international refugee law does
not apply. The Australian opposition, meanwhile, has also argued that
processing the refugees at home would be cheaper, more humane, and more
efficient than paying for the flights to send asylum seekers to Malaysia.
Despite clear flaws in the deal, Australian prime minister Julia Gillard and
her Malaysian counterpart Najib Razak maintain that the benefits of the
exchange deal outweigh the costs. In particular, they have argued that the
exchange would undermine the business model of human smuggling syndicates,
which often peddle their services with the allure of final residence in
Thus boat people who in future arrive in Australian waters have no guarantee of
final resettlement there. Instead, they face the prospect of paying their life
savings to a smuggler and risking their lives on the high seas to get to
Australia only to be rewarded with a plane ticket to Malaysia or further sea
voyage to Papua New Guinea.
Australian immigration minister Christopher Bowen says the Australia-Malaysia
refugee exchange deal sends a ''very strong message that if you come to
Australia by boat, you will be returned to Malaysia and you will have no
preferential treatment in your processing ... That is a tough message.''
But while Australian politicians remain averse to their country being seen as a
regional refugee "safe-haven", the desperation of asylum-seekers and the hope
of eventually being resettled in Australia via a circuitous route may be enough
to keep the boats coming.
Jacob Zenn graduated from Georgetown Law's Global Law Scholar's Program
in 2011 and earned a Certificate in Refugee Law and Humanitarian Emergencies.
He worked at UNHCR Malaysia in 2009.
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