Refugees Not the Focus in Australia – Malaysia Asylum Deal

In a previous blog post, I suggested that attempts to promote ‘managed migration’ through the Bali process to curb human trafficking and smuggling was a progressive anti-trafficking measure. The 2011 Regional Cooperation Framework outlined that consistent assessment processes for asylum seekers be established and anti-trafficking measures developed with greater sensitivity to economic, social and political root causes of irregular migration. Adopting a ‘managed migration’ approach ensures a deeper analysis to understand the various clusters and circumstances of irregular migrants. This avoids conflation of all irregular migrants as illegal migrants in immigration and trafficking laws.

Following the Bali Dialogue, Australia and Malaysia made an asylum deal, which is intended to dampen irregular maritime arrivals through tackling “human trafficking” and “human smuggling” into Australia. The use of trafficking and smuggling syndicates by asylum seekers to reach Australia has gained significant media attention, since the Tampa Affair in 2001. Furthermore, most illegal maritime migrants into Australia are given refugee protection. According to Australian Immigration Minister Chris Bowen, most refugees heading to Australia first fly to Kuala Lumpur before starting their boat journey to Australia via Indonesia. However, other asylum seekers without proper documentation utilize illegal maritime migration as their only option to reach Australia, as a preferred destination place for asylum. Australia’s signatory status may be an incentive. Nevertheless, the agreement between the Australian and Malaysian governments for refugee status determination to be undertaken in Malaysia is intended to thwart the business model of human smuggling/trafficking syndicates. The prospect of return to Malaysia aims to discourage risky journeys by illegal maritime migrants.

However, the transfer of 800 asylum seekers to a non-signatory state like Malaysia to the Refugee Convention is controversial. Malaysia’sapproach towards asylum seekers includes arbitrary detention and minimal integration into society after processing. Similarly, although a signatory to the Refugee Convention, Australia’s approach reflects little regard for the rights and protection of asylum seekers or refugees. For example, the Refugee Convention prohibits discrimination based on the migration means of asylum seekers (para 28, pp. 9; para 98, pp. 33). Despite their illegal entry, Australia has an obligation to ensure the rights of asylum seekers are protected by allowing them access to be processed in Australia. Instead, by diverting these persons to Malaysia, Australia could be refouling asylum seekers. However, Australia refutes this through a narrow reading of the Convention. Without an independent and robust mechanism to determine ‘refoulement’, this remains open to interpretation.

There are ongoing calls for Malaysia to ratify the Refugee Convention as a prerequisite to the asylum deal. Malaysian Convention Ratification and adherence would create employment and welfare access for refugees and recognition as juridical subjects. However, convention ratification does not guarantee fulfillment of obligations by the State. For example, Australia, despite its signatory status, maintains a questionable detention policy and culture. This policy violates international human rights law as encapsulated by The Refugee Council of Australia.

If similar approaches to the Refugee Convention produce such bargains, and are not tackled, similar future deals will encourage a lower standard among states towards their Convention obligations.

Overall, the Australian – Malaysian asylum deal concentrated on treating asylum seekers as prima facie illegal maritime migrants overshadows states’ commitments at the Bali Dialogue to broaden their conception of and response to irregular migrants.