The Minister for Immigration and Citizenship Chris Bowen has conceded that implementing the recently announced Malaysian agreement relating to asylum seekers will be tough. He has already seen resistance from the refugee sector and is likely to get the protests and legal challenges that he anticipates.
But there are opportunities in the announcement that may also deliver good news for some asylum seekers and the refugee sector.
Firstly, for years refugee advocates have lobbied for an increase in the annual quota of refugee and humanitarian entrants from the current rate of 13,750 to 20,000 or more. While the increase in resettlement places that accompanies the Malaysian agreement falls well short of this, nonetheless it is an increase.
It also couldn't come at a better time. With the linking of offshore and onshore places within the humanitarian program, increasingly the numbers arriving in Australia by sea is limiting those places available for offshore resettlement. Family members and community groups trying to bring refugees to Australia who are languishing in camps around the world have been frustrated by the shrinking proportion of offshore places available for applicants to enter Australia.
While the increase will specifically target those in Malaysia, it is at least a step in the right direction for Australia to continue to expand what is a highly valued offshore re-settlement program.
Secondly, while the conditions for asylum seekers in Malaysia have been a human rights concern for many years, not much has happened to create positive change. Minister Bowen has made a commitment that the Australian Government will have oversight with the Malaysian Government, UNHCR and International Organisation for Migration, and that the Prime Minister of Malaysia has given a firm commitment that asylum seekers sent by Australia will be treated with dignity and respect.
There is no question these commitments mean little without evidence in what is a very concerning protection environment for asylum seekers in Malaysia. However, with Australia providing such oversight and the public exposure of the human rights context for asylum seekers in Malaysia, opportunities could come for change.
If this announcement could create a model for effective and safe care of asylum seekers in Malaysia it could also engage a greater proportion of civil society in community based care. Such a model may have positive flow on effects for other asylum seekers not involved in the Australian agreement as civil society in Malaysia is empowered and funded to establish expertise in asylum support services.
This will take time and will not extend to all the 90,000 or more asylum applicants currently feeling unsafe in Malaysia, but it could be the small beginnings of alternative care arrangements in a vexed environment.
Thirdly, there is, to date, no mention of detention for those who will be transferred to Malaysia. If such plans do emerge in the details being formulated by Australia and Malaysia, this should be widely criticised.
Yet unlike other options canvassed by both sides of government, which involve closed detention centres in offshore locations with few resources and even less access to quality legal advice, if done well, this could be the beginning of community based support and monitoring that should form the nexus of any regional cooperation agreement.
I recognise there are lots of 'if's in this review of the Malaysian announcement and any opportunities will only come to fruition with honest and careful planning by both governments.
However, just as it should be the role of lawyers and refugee advocates to analyse the disadvantages and possible unlawful elements of this announcement, we must also consider the opportunities. After all, without a serious legal challenge, it would seem the agreement is forging ahead and opportunities are best captured early.
Caz Coleman is the former Director of the Hotham Mission Asylum Seeker Project and current member of the Council for Immigration Services and Status Resolution (CISSR). Opinions are her own.
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13 May 2011
I do love a bit of optimism. But this is optimism gone right off its head.
13 May 2011
Thanks, Caz, for highlighting the good possibilities of an agreeement with Malaysia. I believe it is important for Australia to encourage negotiation with nations that are not signatories to the Convention in order to ensure the welfare of asylum seekers in the region. My difficulty is with engaging in this particular pilot scheme.
My lesser objection is on the grounds that no agreement should be made until the negotiations have led to explicit and binding commitments to safeguard the human dignity of asylum seekers in respect of security, legal status, food, shelter, access to medical care, etc. Hope and promises are not enough.
But the real difficulty is that to send to Malaysia asylum seekers who claim protection in Australian territory seems to evacuate of any binding force the commitment that Australia has made in the Convention and embedded in its own legal system to protect those found to be refugees. To make human beings the objects of trade, whether for the purpose of solving political difficulties in
Australia or making Malaysia more humane, contradicts the commitment we have made to them as human beings who flee persecution.
If the legitimacy of this move is accepted, there would seem to be no principled reason why it should not be extended to cover any treatment of refugees thought expedient.
Timeo Danaos et dona ferentes
13 May 2011
Thanks Caz for this timely article.Your positive outlook and hopeful interpretation of the Malaysian 'solution' is quite infectious. However, I do wonder how much credence should be given to the Malaysian government's assurance that they would treat our offloaded asylum seekers with dignity and respect when the lash and other harsh punishments are freely administered in that country? Would our government really go all out to check on and ensure the safety and well being of these hundreds of people when we have abrogated our own responsibilities to them?
After all, we've turned a blind eye to the welfare of so many of our detainees after sending them back to their homelands, often to the same life-threatening situations that caused them to flee.
Anyway, I hope your strong optimism carries through. You've shone a bright light into a very dark tunnel!
13 May 2011
Even if all the 'if's came true, its still a really stupid idea that aims to circumvent Australia's convention obligations. Why cant Australia just increase its yearly resettlement quota out of Malaysia and Indonesia? Wouldn't this create trust and burden-sharing between our countries and show our neighbours that signing the Convention and treating refugees in accordance with international law actually meant something?
17 May 2011
If Australia is willing to take 4,000 UNHCR-approved refugees from Malaysia (albeit by exchanging them for 800 new ones), why can it not accept all UNHCR-approved refugees languishing in Indonesia and undercut the people smugglers by shipping them directly to Australia in safe Australian boats at low cost?