Australia, Malaysia: Refugee Swap Fails Protection Standards

(Bangkok) – Australia and Malaysia's agreement to swap 800 asylum seekers who arrive in Australia for 4,000 refugees living in Malaysia fails to meet minimal standards for refugee burden-sharing, Human Rights Watch said today in a letter to both countries' prime ministers. The Arrangement between Australia and Malaysia on Transfer and Resettlement was signed on July 25, 2011.

"The refugee swap agreement should have been rejected outright because Malaysia is not a party to the Refugee Convention and has no refugee law or procedure," said Bill Frelick, refugee program director at Human Rights Watch.  "The gap in the treatment of refugees and asylum seekers between Australia and Malaysia remains enormous."

In its letter, Human Rights Watch said that the failure of one of the two parties to accept the obligations established by the most relevant treaty regarding refugees and to apply customary standards demonstrates the hollowness of the agreement.

The protection and education of refugee children are of particular concern under the agreement, Human Rights Watch said. The agreement says nothing about "best interest" determinations or other basic principles of protection for unaccompanied children under international law, only that special procedures "will be developed."

"The agreement ignores the special needs of unaccompanied children," Frelick said.  "Saying that implementing procedures will come later is no excuse for failing to spell out basic principles in the agreement itself."

The agreement also says that school-age children will be permitted access to "private education," but adds that if "such arrangements are not available or affordable" the children should have access to "informal education." Neither private education nor informal education meet the standards for the right to free and compulsory primary education in the Convention on the Rights of the Child, to which both Australia and Malaysia are parties.

Australia's willingness to admit 4,000 more refugees for permanent resettlement was potentially a great humanitarian benefit, Human Rights Watch said. But it urged the Australian government to separate that agreement from a deal that would deflect people seeking asylum in Australia to another country.

Malaysia's willingness to recognize a group of asylum seekers as being lawfully present was also a positive development, Human Rights Watch said. However, creating an exception for 800 "swapped" people while 90,000 other refugees and asylum seekers in Malaysia remain "illegal migrants" subject to deportation is unacceptable, Human Rights Watch said.

"Unfortunately, the Australia-Malaysia refugee swap agreement is more about burden shirking than burden sharing," Frelick said.