Dear Prime Minister,

I write on behalf of Amnesty International Australia’s 125,000 members to express our grave concerns for the fate of asylum seekers who will be sent to Malaysia under the new transfer agreement.

In July 2009 and March 2010, Amnesty International conducted two fact-finding missions to Malaysia to examine first-hand the detention conditions endured there by illegal migrants including asylum seekers and refugees. The subsequent reports, A Blow to Humanity: Torture by Judicial Caning in Malaysia and Abused and Abandoned: Refugees denied rights in Malaysia, highlight serious human rights abuses against asylum seekers and refugees in Malaysia.

Asylum seekers transferred to Malaysia will face lengthy status determination times, inhumane detention conditions and torture.

The UNHCR estimates that there are approximately 90,000 refugees and asylum seekers in Malaysia. Malaysian law does not distinguish refugees and asylum seekers from undocumented migrants. It is unlikely the transferees will have access to adequate health care, schooling or employment opportunities. They may be forced to join the 1 million undocumented migrant workers working in dangerous and dirty jobs, subject to exploitation, and risking arrest by police and immigration officials or by state-sanctioned vigilante groups.

Those transferred who found in breach of Malaysia’s immigration laws may be detained in overcrowded centres in appalling conditions. In one instance, Amnesty International representatives saw a facility where 120 men were detained in a building no larger than a tennis court for 24 hours a day. Former detainees interviewed by Amnesty International reported malnutrition, disease, violence and suicide attempts inside the detention centres. Those who were unable to pay various fines were detained for months on end. Amnesty International is concerned that transferees to Malaysia could be subjected to inhumane conditions in detention.

The assurances by the Malaysian Government that asylum seekers are treated humanly and with dignity cannot be substantiated and contradict the dire circumstances in which asylum seekers and refugees are detained and treated in reality.

Asylum seekers transferred to Malaysia from Australia may also face torture, in the form of caning. In 2002, the Malaysian Parliament made immigration violations punishable by “whipping of not more than six strokes.” Under international human rights law, corporal punishment in all its forms constitutes torture or other cruel, inhuman or degrading punishment, which is prohibited in all circumstances.

This agreement puts Australia at serious risk of breaching the fundamental principle of non-refoulement which dictates that people cannot be sent to back to countries where they are at risk of persecution or torture. Malaysia is not a signatory to the United Nations Refugee Convention, nor has it ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, or the International Covenant on Civil and Political Rights (ICCPR).

We were absolutely dismayed at the reference to sending people to “the back of the queue”. For 99% of people who need protection, seeking asylum in another country is their only choice. Resettlement through the UNHCR in no way resembles a queue and, in any case, is only available for a very small group. The resettlement program exists to support the asylum system, not to replace or distort it.

It is completely nonsensical to take asylum seekers who have entered Malaysia's territory to claim asylum, but not those who are trying to enter Australia's territory - when we are the country that has signed the Refugee Convention.

Amnesty International welcomes the move to resettle 4,000 extra refugees from Malaysia, but believes this should not come at the expense of the right to seek asylum in Australia.

Lastly, the Government should note that the number of refugees coming to Australia is low by international standards. The UNHCR’s latest report, Asylum Levels and Trends in Industrialised Countries 2010, indicates that Australia receives only 2 per cent of the industrialised world’s asylum claims. Amnesty International does not believe the situation warrants sending 800 asylum seekers to Malaysia, in what is a serious breach of Australia’s obligations under the United Nations Refugee Convention.

Amnesty International remains concerned about the Government’s recent policy directions in relation to asylum seekers and refugees. We urge the Government to adhere to Australia’s international obligations to protect these vulnerable people from further harm.


Claire Mallinson

Claire Mallinson
National Director
Amnesty International Australia