The Senate
Legal and Constitutional Affairs References Committee
Australia's arrangement with Malaysia in relation to asylum seekers
October 2011
© Commonwealth of Australia
ISBN: 978-1-74229-532-9
This document was printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.
MEMBERS OF THE COMMITTEE
Members Senator Gary Humphries, Chair, LP, ACT Senator Patricia Crossin, Deputy Chair, ALP, NT Senator Sue Boyce, LP, QLD Senator Michaelia Cash, LP, WA Senator Mark Furner, ALP, QLD Senator Penny Wright, AG, SA
Substitute Member Senator Sarah Hanson-Young, AG, SA replaced Senator Penny Wright, AG, SA for the inquiry into Australia's arrangement with Malaysia in relation to asylum seekers
Participating Member Senator Alex Gallacher, ALP, SA
Secretariat Ms Julie Dennett Committee Secretary Ms Ann Palmer Principal Research Officer Ms Christina Raymond Senior Research Officer Ms Aleshia Bailey Research Officer Ms Margaret Cahill Research Officer Ms Hana Jones Administrative Officer Ms Hannah Dibley Administrative Officer
Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: [email protected]
iii
TABLE OF CONTENTS
MEMBERS OF THE COMMITTEE ...... iii
ABBREVIATIONS ...... vii
RECOMMENDATIONS ...... ix
CHAPTER 1 ...... 1 Introduction ...... 1 Referral of the inquiry ...... 1 Conduct of the inquiry ...... 2 Structure of the report ...... 2 Acknowledgement ...... 2 Note on references ...... 2
CHAPTER 2 ...... 5 Background ...... 5 Joint Prime Ministerial statement on the Malaysian Arrangement ...... 5 Signing of the Malaysian Arrangement ...... 6 High Court's decision ...... 10 Implications of the High Court's decision on other offshore processing options 13 Proposed amendments to the Migration Act ...... 14
CHAPTER 3 ...... 19 Key concerns ...... 19 Introduction ...... 19 Non-legally binding nature of the Malaysian Arrangement ...... 19 Practical implementation of the Malaysian Arrangement ...... 21 Compliance with international law obligations and human rights standards ...... 25 Conditions in Malaysia ...... 32 Unaccompanied minors ...... 37 Resettlement of 4,000 refugees in Australia ...... 39
CHAPTER 4 ...... 41 Committee view and recommendations...... 41 Non-legally binding nature of the Malaysian Arrangement ...... 41 Malaysia is not a party to the Refugee Convention ...... 42 Pre-transfer arrangements ...... 42 Conditions in Malaysia ...... 43 Identification of the 800 Transferees ...... 46 Unaccompanied minors ...... 47
DISSENTING REPORT BY GOVERNMENT SENATORS ...... 49 Importance of regional cooperation ...... 49 Deterrent effect of the Malaysian Arrangement ...... 50 Protection for asylum seekers ...... 51 Proposed amendments to the Migration Act ...... 56
ADDITIONAL COMMENTS BY SENATOR HANSON-YOUNG ...... 57 Background ...... 57 Key concerns with the agreement ...... 57
APPENDIX 1 ...... 61 SUBMISSIONS RECEIVED ...... 61 ADDITIONAL INFORMATION RECEIVED ...... 63
APPENDIX 2 ...... 65 WITNESSES WHO APPEARED BEFORE THE COMMITTEE ...... 65
vi ABBREVIATIONS
AHRC Australian Human Rights Commission
Amnesty Amnesty International Australia
Malaysian Arrangement between the Government of Australia and the Arrangement or Government of Malaysia on Transfer and Resettlement arrangement
Bill Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011
CARAD Coalition of Asylum Seekers, Refugees and Detainees
CAT Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment committee Legal and Constitutional Affairs References Committee
CRC Convention on the Rights of the Child
DASSAN Darwin Asylum Seekers Support and Advocacy Network
DIAC or Department Department of Immigration and Citizenship
EM Explanatory Memorandum
Guardianship of Immigration (Guardianship of Children) Act 1946 Children Act
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICJA International Commission of Jurists (Australia)
IOM International Organisation for Migration
Migration Act Migration Act 1958
Minister Minister for Immigration and Citizenship
NGO Non-Government Organisation
Ombudsman Commonwealth and Immigration Ombudsman
Operational Guidelines Operational guidelines to support transfers and resettlement
PNG Papua New Guinea
Refugee Convention Convention relating to the Status of Refugees
Refugee Protocol Protocol relating to the Status of Refugees
RELA Ikatan Relawan Rakyat (People's Volunteer Corps)
Transferees the 800 asylum seekers to be sent to Malaysia
UNHCR United Nations High Commissioner for Refugees
viii RECOMMENDATIONS Recommendation 1 4.27 The committee recommends that the Australian Government not proceed with the implementation of the Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement, due to the obvious flaws and defects in that arrangement.
CHAPTER 1 Introduction Referral of the inquiry
1.1 On 17 August 2011, the Senate referred Australia's agreement with Malaysia in relation to asylum seekers (Malaysian Arrangement or arrangement) to the Legal and Constitutional Affairs References Committee (committee) for inquiry and report by 22 September 2011, with particular reference to: (a) the consistency of the agreement to transfer asylum seekers to Malaysia with Australia's international obligations; (b) the extent to which the above agreement complies with Australian human rights standards, as defined by law; (c) the practical implementation of the agreement, including: (i) oversight and monitoring, (ii) pre-transfer arrangements, in particular, processes for assessing the vulnerability of asylum seekers, (iii) mechanisms for appeal of removal decisions, (iv) access to independent legal advice and advocacy, (v) implications for unaccompanied minors, in particular, whether there are any guarantees with respect to their treatment, and (vi) the obligations of the Minister for Immigration and Citizenship (Mr Bowen) as the legal guardian of any unaccompanied minors arriving in Australia, and his duty of care to protect their best interests; (d) the costs associated with the agreement; (e) the potential liability of parties with respect to breaches of terms of the agreement or future litigation; (f) the adequacy of services and support provided to asylum seekers transferred to Malaysia, particularly with respect to access to health and education, industrial protections, accommodation and support for special needs and vulnerable groups; (g) mechanisms to enable the consideration of claims for protection from Malaysia and compliance of these mechanisms with non-refoulement principles; (h) a comparison of this agreement with other policy alternatives for processing irregular maritime arrivals; and (i) any other related matters.
Page 2 1.2 On 23 August 2011, the Senate agreed to extend the reporting date of the inquiry until 11 October 2011.
Conduct of the inquiry
1.3 The committee advertised the inquiry in The Australian newspaper on 31 August 2011, and initially invited submissions by 2 September 2011. More than 200 organisations and individuals were invited to make submissions. Details of the inquiry and associated documents were placed on the committee's website.
1.4 Following the decision by the High Court of Australia on 31 August 2011 that the Malaysian Arrangement is effectively invalid,1 the committee decided that there was merit from a public policy perspective in continuing the inquiry as originally referred. A revised submissions closing date of 14 September 2011 was set, although the committee continued to accept submissions well after that date. The inquiry was advertised again in The Australian on 14 September 2011.
1.5 The committee received 37 submissions from various organisations and individuals. All public submissions and responses to questions on notice were published on the committee's website, and are listed at Appendix 1.
1.6 The committee held a public hearing in Canberra on 23 September 2011. Witnesses who appeared at the hearing are listed at Appendix 2 and the Hansard transcript is available on the committee's website.
Structure of the report
1.7 Chapter 2 provides background information on the Malaysian Arrangement – including an overview of the main clauses of the arrangement and its operational guidelines – and briefly summarises the High Court's decision, as well as subsequent proposed legislative amendments.
1.8 Chapter 3 considers some of the key concerns raised in submissions and evidence; and Chapter 4 sets out the committee view and recommendations.
Acknowledgement
1.9 The committee thanks those organisations and individuals who made submissions and gave evidence at the public hearing.
Note on references
1.10 Submissions referenced in this report are to individual submissions as received by the committee, not to a bound volume. References to the committee
1 See Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship [2011] HCA 32.
Page 3 Hansard are to the proof Hansard. Page numbers may vary between the proof and official Hansard transcript.
CHAPTER 2 Background
2.1 This chapter provides an overview of the process by which the Malaysian Arrangement on asylum seekers was developed, and explains some of the arrangement's key provisions. The High Court's decision in the case of Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 of 2011 v Minister for Immigration and Citizenship1 is also examined; along with the Australian Government's subsequent introduction of legislative amendments intended to address the issues arising from the High Court's decision.
Joint Prime Ministerial statement on the Malaysian Arrangement
2.2 On 7 May 2011, in a joint statement with the Prime Minister of Malaysia, the Prime Minister announced a commitment for both governments to enter into a new arrangement to help address people smuggling and irregular migration in the Asia- Pacific region.2
2.3 The joint statement outlined the core elements of the bilateral arrangement, namely that: 800 irregular maritime arrivals (Transferees), who arrive in Australia after the date of effect of the arrangement, would be transferred to Malaysia for refugee status determination; in return, over four years, Australia would resettle 4,000 refugees already currently residing in Malaysia; Transferees would not receive any preferential treatment over asylum seekers already in Malaysia; Transferees would be provided with the opportunity to have their asylum claims considered and those in need of international protection would not be refouled; Transferees would be treated with dignity and respect, and in accordance with human rights standards; and
1 [2011] HCA 32. 2 The Hon Julia Gillard MP, Prime Minister of Australia and the Hon Dato' Sri Najib Tun Razak, Prime Minister of Malaysia, 'Joint Statement with the Prime Minister of Malaysia', media release, 7 May 2011, http://www.pm.gov.au/press-office/joint-statement-prime-minister- malaysia (accessed 24 August 2011).
Page 6 3 Australia would fully fund the arrangement.
Signing of the Malaysian Arrangement
2.4 On 25 July 2011, the Prime Minister and the Minister for Immigration and Citizenship (Minister) announced that the Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement (Malaysian Arrangement or arrangement) had been signed by Australia and Malaysia.4 Also on 25 July 2011, the Minister issued an Instrument of Declaration which purportedly provided the statutory basis for the transfer of asylum seekers to Malaysia as a 'declared' country under section 198A of the Migration Act 1958 (Migration Act).5
Key provisions of the Malaysian Arrangement
2.5 For the most part, the Malaysian Arrangement reflects the core elements outlined in the joint statement by the Australian and Malaysian Prime Ministers on 7 May 2011.
2.6 Under the Malaysian Arrangement, the Government of Malaysia will accept up to a maximum of 800 'Transferees' (clause 7(1)). Transferees are people who, after the date of the signing of the arrangement, have travelled irregularly by sea to Australia, or who have been intercepted at sea by Australian authorities while trying to reach Australia by irregular means (clause 4(1)(a)).
2.7 Transferees found to be refugees will be 'referred to resettlement countries pursuant to normal processes and criteria of the United Nations High Commissioner for Refugees' (UNHCR) (clause 6). Where a Transferee is found not to be a refugee, the arrangement states that voluntary return is the preferred option. However, where a Transferee does not agree to return to their country of origin voluntarily, then forced returns may be necessary (clause 11(1)).
2.8 Pursuant to the arrangement, the Australian Government will resettle 4,000 refugees, currently residing in Malaysia, over a four-year period at a rate of approximately 1,000 people per year (clause 7(2)). In order to be resettled in
3 The Hon Julia Gillard MP, Prime Minister of Australia and the Hon Dato' Sri Najib Tun Razak, Prime Minister of Malaysia, 'Joint Statement with the Prime Minister of Malaysia', media release, 7 May 2011, http://www.pm.gov.au/press-office/joint-statement-prime-minister- malaysia (accessed 24 August 2011). 4 The Hon Julia Gillard MP, Prime Minister of Australia and the Hon Chris Bowen MP, Minister for Immigration and Citizenship, 'Australia and Malaysia sign transfer deal', media release, 25 July 2011, http://www.pm.gov.au/press-office/australia-and-malaysia-sign-transfer-deal (accessed 24 August 2011). 5 Instrument of Declaration of Malaysia as a declared country under subsection 198A(3) of the Migration Act 1958, 25 July 2011, http://www.comlaw.gov.au/Details/F2011L01685 (accessed 7 October 2011).
Page 7 Australia, a person must hold a UNHCR card and must have entered Malaysia and been registered with the UNHCR prior to the date of signing of the Malaysian Arrangement. Such persons must have remained in Malaysia since the date of signing (clause 5(1)(a)).
2.9 The Malaysian Arrangement also sets out a number of commitments by the Governments of Australia and Malaysia. The joint commitments include that Transferees and persons to be resettled in Australia 'will be treated with dignity and respect and in accordance with human rights standards' (clause 8(1)). There is also a commitment to develop specific procedures to deal with the special needs of vulnerable cases, including unaccompanied minors (clause 8(2)).
2.10 The arrangement sets out a list of costs that the Australian Government has committed to cover, including costs related to (clause 9(1)): any interdiction and Transferee management costs involved in the actual transfer from Australia to Malaysia, and any Australian detention costs; transportation costs incurred to transfer Transferees to Malaysia, including the costs of any escorts and interpreters; costs related to the health and welfare (including education of minor children) of Transferees in accordance with UNHCR's model of assistance in Malaysia; and additional 'safety net' costs related to meeting any special welfare needs of Transferees (especially vulnerable cases), drawing also on the services of the International Organisation for Migration (IOM) as necessary.
2.11 There is also provision for the Australian Government to cover other costs, as agreed (clause 9(1)(k)).
2.12 The Australian Government has made commitments with respect to the return of Transferees found not to be in need of international protection (clause 9(4)). Specifically, the Australian Government will assist the Government of Malaysia in the return of a Transferee to their country of origin, including assistance with financial costs, administrative arrangements through the use of a service provider such as IOM, and liaison with the country of origin.
2.13 The Government of Malaysia has committed to providing Transferees with the opportunity to have their asylum claims considered by the UNHCR and 'will respect the principle of non-refoulement' (clause 10(2)(a)). However, the arrangement provides that the benefit of non-refoulement may not be claimed by a Transferee who is a refugee where (clause 10(2)(b)): there are reasonable grounds for regarding the person as a danger to the security of Malaysia or the person has been convicted by a final judgement of a 'particularly serious crime that constitutes a danger to the community of Malaysia'.
Page 8 2.14 Clause 12 sets out a number of agreed terms of the arrangement, including: operations under the arrangement are to be carried out in accordance with the domestic laws, rules, regulations and national policies from time to time in force in each country, and in accordance with the parties' respective obligations under international law (clause 12(1)); and Transferees should not be given 'any preferential treatment in the order of processing their claims in Malaysia' and should 'receive no processing advantage as a result of having undertaken irregular migration to Australia' (clause 12(2)).
2.15 The Malaysian Arrangement also provides for a Joint Committee and an Advisory Committee (clause 13).
2.16 The Joint Committee will be made up of one representative each from the Malaysian Ministry of Home Affairs and the Australian Department of Immigration and Citizenship (and such other representatives as may be agreed) (clause 13(2)), and will have the following responsibilities (clause 13(1)): management of the transfer arrangements; oversight of the welfare of Transferees; ensuring that funding is expended appropriately; and engagement with service providers.
2.17 The Advisory Committee will provide advice to the respective governments on issues arising out of the implementation of the arrangement, as well as being a body to which each party might refer issues for consideration (clause 13(3)). The Advisory Committee will be made up of two representatives from each of the Malaysian and Australian Governments, a representative from each of the UNHCR and the IOM (subject to their agreement), and other representatives as agreed by the parties (clause 13(4)).
2.18 Clause 18, the so-called 'Resolution of Differences' clause, provides that any differences between the Participants over the interpretation or application of the arrangement are to be resolved as soon as reasonably practicable by consultation between the parties.
Key provisions of the Operational Guidelines
2.19 The Operational guidelines to support transfers and resettlement (Operational Guidelines) set out the processes to be followed for moving Transferees to Malaysia and the resettlement of refugees in Australia from Malaysia.
2.20 Item 1 of the Operational Guidelines covers the transfer process from Australia to Malaysia. Initial handling of Transferees in Australia will include (item 1.1.1):
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collection of biodata and biometrics (photo and fingerprints) for each Transferee; checking Transferees against the Australian 'watch list'; medical assessments to ensure that Transferees are 'fit to travel'; and counselling Transferees about the transfer process and a briefing on 'what to expect in Malaysia'.
2.21 The Operational Guidelines also set a pre-transfer notification process between Australian and Malaysian authorities (item 1.1.2). Part of that notification process will allow for exemption orders to be put in place for Transferees under Malaysian immigration and passport legislation.
2.22 The Operational Guidelines provide that the parties will aim to have each group of Transferees transferred to Malaysia within 72 hours of their arrival in Australia (item 1.3).
2.23 On arrival in Malaysia, Transferees will be handed over to Malaysian authorities 'at the door of the aircraft'. Transferees will be encouraged to disembark voluntarily. If Transferees do not disembark voluntarily, however, they will be escorted to the door of the aircraft by Australian authorities and handed to Malaysian authorities (item 1.4.1).
2.24 Item 2 of the Operational Guidelines covers the post-arrival arrangements for Transferees in Malaysia. Following initial processing at the airport, Transferees will be taken to a transit centre for further processing. Malaysian authorities will authorise departure of Transferees from the transit centre 'generally' within 45 days (item 2.1.2(f)).
2.25 The Transferee pathways in Malaysia are: voluntary return to the relevant country of origin (item 2.2.1); seeking asylum through the UNHCR process (item 2.2.2); and consideration of a person's claim to complementary protection by Australian authorities where the person seeks neither voluntary return or asylum (item 2.2.3).
2.26 Item 2.3 sets out the various steps which follow from the determination of a person's refugee status. These are divided into three scenarios: where a person is found to be a refugee; where a person is found not to be a refugee; and where the person decides during the refugee determination process to leave Malaysia.
2.27 Item 3 sets out conditions for Transferees during their temporary stay in Malaysia, and focuses on the period following the Transferees' departure from the Transit centre. Some of the key points are: 'generally', Transferees will be allowed to reside in the community (item 3.1(a));
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Transferees will be encouraged to become self-sufficient as soon as possible (item 3.2(b)); IOM will pay Transferees a support payment to cover living costs for the first month in the community (item 3.2(c)); Transferees of school age will be permitted access to private education arrangements in the community and, where such arrangements are not available or affordable, children will have access to informal education arrangements organised by IOM (item 3.3); and vulnerable Transferees will be identified by IOM's initial health assessment, and will have access to the existing arrangements which the UNHCR has in place for identifying and supporting vulnerable cases (and a 'backup safety net' will also be provided by IOM) (item 3.5 (a) and (b)).
2.28 Item 4 sets out the processes for resettlement of refugees in Australia from Malaysia; and item 5 sets out the terms of reference and membership of the Joint Committee and the Advisory Committee.
High Court's decision6
2.29 Under subsection 198A(3) of the Migration Act, the Minister is invested with discretion to: (a) declare in writing that a specified country: (i) provides access, for persons seeking asylum, to effective procedures for assessing their need for protection; and (ii) provides protection for persons seeking asylum, pending determination of their refugee status; and (iii) provides protection to persons who are given refugee status, pending their voluntary repatriation to their country of origin or resettlement in another country; and (iv) meets relevant human rights standards in providing that protection.
2.30 As noted earlier in this chapter, the Minister declared Malaysia as a specified country under subsection 198A(3) in order to facilitate the transfer of asylum seekers to that country pursuant to the terms of the Malaysian Arrangement.
2.31 The High Court's decision related to two matters, known as M70/2011 and M106 of 2011, involving two asylum seekers (plaintiffs). Plaintiff M70/2011 is a 24- year-old male citizen of Afghanistan, and Plaintiff M106 of 2011 is a 16-year-old unaccompanied male citizen of Afghanistan. Both plaintiffs arrived at
6 The remaining sections of this chapter rely heavily on Parliamentary Library, 'Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011', Bills Digest No. 53, 2011-12, 22 September 2011.
Page 11 Christmas Island in August 2011 as part of a larger group of asylum seekers, and were identified as liable to transfer to Malaysia under the Malaysian Arrangement.
2.32 The plaintiffs commenced proceedings in the High Court seeking orders which included a declaration of invalidity in respect of the instrument made on 25 July 2011, and an order in the nature of prohibition to restrain the Minister and the Commonwealth from taking any steps to remove them from Australia.
2.33 The main issues considered by the High Court were whether the Minister's declaration of Malaysia had been validly made under section 198A of the Migration Act, and whether the Minister had satisfied the requirements of the Immigration (Guardianship of Children Act) 1946 (Guardianship of Children Act) in relation to the 16-year-old Afghan citizen.
2.34 On 31 August 2011, the High Court by majority (6:1) found that the Minister's declaration of Malaysia had been made without power and was therefore invalid. The basis for this finding was summarised in the joint majority judgment: ...the references in s 198A(3)(a) to a country that provides access and provides protection are to be construed as references to provision of access or protection in accordance with an obligation to do so. Where, as in the present case, it is agreed that Malaysia: first, does not recognise the status of refugee in its domestic law and does not undertake any activities related to the reception, registration, documentation and status determination of asylum seekers and refugees; second, is not party to the Refugees Convention or the Refugees Protocol; and, third, has made no legally binding arrangement with Australia obliging it to accord the protections required by those instruments; it was not open to the Minister to conclude that Malaysia provides the access or protections referred to in s 198A(3)(a)(i) to (iii). The Minister's conclusions that persons seeking asylum have access to UNHCR procedures for assessing their need for protection and that neither persons seeking asylum nor persons who are given refugee status are ill-treated pending determination of their refugee status or repatriation or resettlement did not form a sufficient basis for making the declaration.7
2.35 The majority also found that the Minister was precluded from removing the 16-year-old plaintiff from Australia: A determination by the Minister (or his delegate) that an unaccompanied minor should be taken from Australia to a country declared under s 198A(3)(a) of the Migration Act would not constitute a consent in writing of the kind required by s 6A of the [Guardian and Citizenship] Act. Nor would the exercise of power to take an offshore entry person to another country pursuant to s 198A(1) fall within the operation of s 6A(4) of the
7 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff M106 v Minister for Immigration and Citizenship, [2011] HCA 32, per Gummow, Hayne, Crennan and Bell JJ at 135.
Page 12 [Guardian and Citizenship] Act and its provision that s 6A "shall not affect the operation of any other law regulating the departure of persons from Australia"... Accordingly, removal of a person from Australia who is a "non-citizen child" within the meaning of the [Guardian and Citizenship] Act, or the taking of that child to another country pursuant to s 198A, cannot lawfully be effected without the consent in writing of the Minister (or his delegate). The decision to grant a consent of that kind would be a decision under an enactment and would therefore engage the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) and, in particular, the provisions of that Act concerning the giving of reasons as well as the 8 availability of review on any of the grounds stated in that Act.
2.36 In response to the High Court's decision, the Prime Minister commented that it represented a 'missed opportunity': …yesterday's High Court decision was a deeply disappointing one...Our legal advice was that our ability to do this was in the current law, we were advised that our legal case was strong, we were advised that our legal case was strong in part because the courts have considered similar questions in the past and looking to those precedents we were advised that if those precedents were followed our legal case would be a strong one. Yesterday in the High Court what we saw was the High Court enter into a different construction of the relevant section of the Migration Act. Effectively, if you like, yesterday the refugee and asylum seeker law of this country changed, changed from how it had been known and understood before with a different interpretation of the legislation. The High Court's decision basically turns on its head the understanding of the law in this country prior to yesterday's decision.9
2.37 However, the former Commonwealth Solicitor-General, Dr David Bennett AC QC, did not agree: [The High Court] came to one of two possible conclusions. The High Court made no "new law" and the criticisms which have been publicly made of it are totally unfounded...The second criticism is that the High Court "missed an opportunity". But the court does not reason by choosing a politically
8 Per Gummow, Hayne, Crennan and Bell JJ at 143 and 146. Justice Heydon adopted a different interpretation of the requirements of subsection 6A(4) of the Guardianship of Children Act. In his Honour's view, 'the fundamental difficulty in the second plaintiff's position is that s. 6A(4) provides that the section does not affect the operation of any other law "regulating the departure of persons from Australia". Section 198A is a law of that kind': per Heydon J at 198. 9 The Hon Julia Gillard MP, Prime Minister, and the Hon Chris Bowen MP, Minister for Immigration and Citizenship, transcript of joint press conference, Brisbane, 1 September 2011, available at http://www.pm.gov.au/press-office/transcript-joint-press-conference-brisbane-1 (accessed 1 October 2011).
Page 13 preferred result and endeavouring to reach it in some legal way. Such a process would be improper and contrary to the rule of law.10
Implications of the High Court's decision on other offshore processing options
2.38 The Coalition opposes the Malaysian Arrangement and has consistently urged the Australian Government to reinstate the successful border protection policies of the Howard Government. This includes offshore processing on Nauru, temporary protection visas and turning boats around where it is safe to do so.
2.39 On 2 September 2011, legal opinion prepared for, and released by, the Australian Government by the current Solicitor-General, Mr Stephen Gageler SC, and two other senior counsel, Mr Stephen Lloyd SC and Mr Geoffrey Kennett SC, examined the implications of the High Court's ruling on offshore processing in Nauru and Papua New Guinea (PNG): In the light of Plaintiff M70 we do not have reasonable confidence on the material with which we have been briefed that the power conferred by s 198A could currently be exercised to take asylum seekers from Australia to either Nauru or to PNG for determination of their refugee status. The accession of Nauru to the Convention Relating to the Status of Refugees (Refugees Convention) and the Protocol Relating to the Status of Refugees (Protocol) on 28 June 2011 nevertheless raises the possibility that the power conferred by s 198A would in the future be available to be exercised to take asylum seekers from Australia to Nauru for determination of their refugee status. We would have confidence that the power conferred by s 198A would be available to be exercised to take asylum seekers from Australia to Nauru only if it were able to be demonstrated to the satisfaction of an Australian court: first, that appropriate arrangements were in place to ensure practical compliance by Nauru with its obligations under the Convention and the Protocol; and, secondly, that Nauru in its treatment of asylum seekers and refugees complied in practice with human rights standards acceptable at least to the United Nations High Commissioner for Refugees. These are complex issues of fact and degree requiring detailed assessment and analysis. Even when that assessment and analysis was complete, the issues might well be the subject of contested evidence. In the absence of a detailed assessment and analysis of these issues, we are unable to form a view as to whether either of the two conditions we have identified would be 11 capable of being demonstrated to the satisfaction of an Australian court.
10 Dr David Bennett AC QC, 'Offshore processing still possible despite High Court decision', Sydney Morning Herald, 12 September 2011, p. 13. 11 Stephen Gageler SC, Stephen Lloyd SC and Geoffrey Kennett SC, In the matter of the implications of Plaintiff M70/2011 v Minister for Immigration and Citizenship for offshore processing of asylum seekers under the Migration Act 1958 (Cth), opinion SG No. 21 of 2011, 2 September 2011, p. 2, available at http://www.minister.immi.gov.au/media/media- releases/_pdf/SG21-implications-of-migration-decision.pdf (accessed 21 September 2011).
Page 14 2.40 In contrast, Dr David Bennett's view is that the High Court's ruling does not necessarily preclude offshore processing in a third country and that the Solicitor- General's advice should not be regarded as conclusive because he did not have sufficient material to draw a detailed assessment of the relevant factors. Further, Dr Bennett believes that the newly interpreted legislative criteria would be satisfied if Australia were to be delegated the relevant operations in a third country, as was the case with Nauru: The remaining question is what can be done. The position is complicated by the fact that there is a passage in the judgment of the Chief Justice suggesting that the minister needs to be satisfied on both legal compliance and compliance on the ground. The second complication is that the High Court appears to have considered that its requirement of "legal compliance" could be met by domestic laws, international conventions or a binding agreement with Australia. Third, there is a question not answered directly by the High Court whether compliance by the country delegating to Australia the relevant operations is sufficient to satisfy the criteria (as was achieved with Nauru). In my view it is. Having said this, there is no legal reason why steps could not be taken with Nauru, Papua New Guinea or Malaysia (or indeed any other willing partner country), which would enable the minister to declare them satisfactory. It is significant that Nauru has now acceded to the Convention Relating to the Status of Refugees and the Protocol Relating to the Status of Refugees. Much attention to detail would be required. In particular, any agreement with Australia should, unlike the agreement with Malaysia, be expressed to be legally binding. The Solicitor-General's advice that he did not have reasonable confidence that the power could be exercised in relation to Nauru or PNG depended on the fact that he had not been provided with sufficient material from which a detailed assessment of the relevant factors could be made. He does not appear to have been asked the question at all in relation to Malaysia or anywhere else. For these reasons, his views should not be regarded as final.12
Proposed amendments to the Migration Act
2.41 On 12 September 2011, the Prime Minister announced that the Australian Government would introduce legislation to enable the transfer of irregular maritime arrivals to third countries for the processing of their asylum claims and to 'provide for the Government to proceed with transfers under the Arrangement with
12 Dr David Bennett AC QC, 'Offshore processing still possible despite High Court decision', Sydney Morning Herald, 12 September 2011, p. 13.
Page 15 Malaysia'.13 On 16 September 2011, the Australian Government released an exposure draft of its proposed changes to the Migration Act: the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 (Bill).14
2.42 On 19 September 2011, the government released a revised exposure draft.15 The revised exposure draft proposed a new subsection 198AB(1) of the Migration Act, which provides that the Minister may, in writing, designate that a country is an 'offshore processing country'. The only condition for the exercise of power under proposed subsection 198AB(1) is that the Minister thinks that it is in the 'national interest' to designate the country to be an offshore processing country (proposed new subsection 198AB(2)).
2.43 The revised proposed amendments to the Migration Act include two relevant considerations to the Minister's identification of the 'national interest' when exercising the discretion to declare a third country to be an offshore processing country, that is: any assurances provided by the third country that it will respect the principle of non-refoulement; and any assurances provided by the third country that it will make an assessment, or will permit an assessment to be made, of whether or not a transferee meets the criteria for protection under the Refugee Convention.16
2.44 The Coalition identified substantial defects in the proposed legislation – in particular, the bare requirement in the proposed amendments that the Minister need only be satisfied that the designation of an offshore processing country is in the 'national interest'.17 The Leader of the Opposition, the Hon Tony Abbott MP commented:
13 The Hon Julia Gillard MP, Prime Minister of Australia, and the Hon Chris Bowen MP, Minister for Immigration and Citizenship, 'Legislation to restore Migration Act powers', media release, 12 September 2011, available at http://www.pm.gov.au/press-office/legislation-restore- migration-act-powers (accessed 28 September 2011). 14 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, Exposure Draft, 16 September 2011, available at http://www.minister.immi.gov.au/media/media-releases/_pdf/migration-act-legislative- amendments.pdf (accessed 10 October 2011). 15 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, Revised Exposure Draft, 19 September 2011, available at http://www.minister.immi.gov.au/media/media-releases/_pdf/updated-migration-act-legislative- amendments.pdf (accessed 10 October 2011). 16 See Revised Exposure Draft, Schedule 1, item 25, subsection 198AB(3). 17 The Hon Tony Abbott MP, Leader of the Opposition, 'Joint press conference with Senator the Hon George Brandis SC, Shadow Attorney-General, and Mr Scott Morrison MP, Shadow Minister for Immigration and Citizenship', 19 September 2011, available at http://www.wa.liberal.org.au/national-security/border-protection-tony-abbott-george-brandis- and-scott-morrison (accessed 10 October 2011).
Page 16 The difficulty with the initial proposals [is] that [they] clearly [strip] out the protections which the Howard Government had explicitly built in to the Migration Act to ensure that people who were sent for offshore processing did not lose ordinary human rights protections. Effectively, the proposals that the Government put to us [on 16 September 2011] amount to offshore dumping, not offshore processing... Effectively, the new proposal that the Government has put [on 19 September] concedes the force of [the Coalition's] argument...without actually addressing it. What the Government's new proposal [of 19 September] does is pay lip service to protections without actually guaranteeing them.18
2.45 The Coalition sought the advice of Dr Bennett in relation to the proposed amendments in both the first and second exposure drafts of the Bill. Dr Bennett commented that the proposed amendments in the first exposure draft gave the Minister 'a virtually unfettered discretion as to what countries he declares', which may violate Australia's non-refoulement obligations under the Refugee Convention.19
2.46 Dr Bennett advised that the corresponding provisions in the second exposure draft are 'also wide and subjective' and would require a court reviewing the Minister's decision 'to analyse the assurances very precisely in order to determine whether they satisfy the statutory requirement'. Dr Bennett advised further that the proposed provision makes 'no reference to the other [Refugee Convention] requirements, but merely permits the Minister to have regard to them'.20
2.47 The Coalition has indicated that it will only support the Bill if the government agrees to a proposed amendment which would expressly provide that, in order to declare a third country as an 'offshore processing country' under the Migration Act, the Minister must be satisfied that such a declaration would be in the national interest, and the offshore processing country is a party to the Refugee Convention and Refugee Protocol.21
2.48 In his advice to the Coalition, Dr Bennett noted:
18 The Hon Tony Abbott MP, Leader of the Opposition, 'Joint press conference with Senator the Hon George Brandis SC, Shadow Attorney-General, and Mr Scott Morrison MP, Shadow Minister for Immigration and Citizenship', 19 September 2011, available at http://www.wa.liberal.org.au/national-security/border-protection-tony-abbott-george-brandis- and-scott-morrison (accessed 10 October 2011). 19 Dr David Bennett AC QC, Advice to Senator the Hon George Brandis SC on behalf of the Coalition in relation to proposed amendments to the Migration Act, 19 September 2011, p. 1. 20 Dr David Bennett AC QC, Advice to Senator the Hon George Brandis SC on behalf of the Coalition in relation to proposed amendments to the Migration Act, 19 September 2011, pp 1-2. 21 Chris Uhlmann, interview with the Hon Tony Abbott MP, 20 September 2011, ABC website, available at http://www.abc.net.au/7.30/content/2011/s3322087.htm (accessed 28 September 2011).
Page 17 The draft Coalition amendments have the effect of directly incorporating the provisions of the Convention by requiring, in effect, that the country be a party to it. This is a simple, objective criterion although there might be room for slight debate if a country were a party to the Convention or Protocol with reservations. I do not know whether any relevant countries are in this position.22
2.49 Dr Bennett concluded that the Coalition amendments provide 'more protection for asylum-seekers than the two Government versions and [are] less likely to be the subject of complex judicial proceedings'.23
2.50 On 19 September 2011, Mr Abbott reiterated Dr Bennett's advice: Former Solicitor-General David Bennett AC QC has provided written advice today on the two sets of amendments proposed by Labor as well as the Coalition's alternative. In Mr Bennett's opinion the Coalition's plan "provides more protection for asylum-seekers than the two Government versions and it is less likely to be the subject of complex judicial proceedings."24
2.51 On 21 September 2011, the Bill was introduced into the House of Representatives.25 The Bill, as introduced, includes the provisions contained in the second exposure draft which pertain to the designation of a third country as an 'offshore processing country' under the Migration Act.26 The Shadow Minister for Immigration and Citizenship, Mr Scott Morrison MP, has circulated the Coalition's foreshadowed proposed amendments that he will move on behalf of the Coalition in the House of Representatives.27
22 Dr David Bennett AC QC, Advice to Senator the Hon George Brandis SC on behalf of the Coalition in relation to proposed amendments to the Migration Act, 19 September 2011, p. 2. 23 Dr David Bennett AC QC, Advice to Senator the Hon George Brandis SC on behalf of the Coalition in relation to proposed amendments to the Migration Act, 19 September 2011, p. 2. 24 The Hon Tony Abbott MP, 'If Julia Gillard was serious about stopping the boats she would support the Coalition's amendments', media release, 19 September 2011, available at http://www.tonyabbott.com.au/LatestNews/PressReleases/tabid/86/articleType/ArticleView/arti cleId/8335/If-Julia-Gillard-was-serious-about-stopping-the-boats-she-would-support-the- Coalitions-amendments.aspx (accessed 10 October 2011). 25 House of Representatives Hansard, 21 September 2011, pp 4-6. 26 Schedule 1, item 25. 27 Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011, amendments to be moved by Mr Morrison, available at http://parlinfo.aph.gov.au/parlInfo/download/legislation/amend/r4683_amend_0c6655a5-264d- 4864-aeee-dadda098468b/upload_pdf/11210b01Morrison.pdf;fileType=application%2Fpdf, (accessed 10 October 2011).
CHAPTER 3 Key concerns Introduction
3.1 During the committee's inquiry, submissions and witnesses raised a number of serious concerns in relation to the Malaysian Arrangement and the Operational Guidelines; indeed, all those who provided comment on the arrangement expressed their opposition to it in absolute terms.
3.2 Some of the key concerns raised during the course of the inquiry were: the non-legally binding nature of the arrangement; problems relating to the practical implementation of the arrangement, including a lack of appropriate oversight and monitoring mechanisms; the non-compliance of the arrangement with international law obligations and human rights standards; inadequate conditions in Malaysia for asylum seekers and refugees; insufficient protections for unaccompanied minors transferred under the arrangement; and the 'swap' aspect of the arrangement that would see 800 asylum seekers going to Malaysia, in exchange for the resettlement in Australia of 4,000 refugees from Malaysia.
Non-legally binding nature of the Malaysian Arrangement
3.3 One of the overarching concerns raised in submissions and evidence related to clause 16 of the Malaysian Arrangement, which provides that the arrangement 'represents a record of the Participants' intentions and political commitments but is not legally binding on the Participants'.1
3.4 Human Rights Watch contended that the non-legally binding nature of the arrangement highlights the 'unwillingness of the parties to be formally bound by its provisions'.2 Mr Rohan Anderson from the Office of the Commonwealth Ombudsman described the arrangement as 'almost aspirational' because it 'talks of commitments, not binding obligations'.3
1 See, for example, Amnesty International Australia (Amnesty), Submission 13, p. 8; Mr Andrew Bartlett and Ms Marianne van Galen-Dickie, Submission 19, pp 3-4. 2 Submission 2, p. 2. 3 Committee Hansard, 23 September 2011, p. 9. Page 20 3.5 A number of submissions outlined the implications that the non-binding nature of the arrangement will have on the enforceability of assurances it contains, particularly in relation to Malaysia's obligations to respect the principle of non- refoulement and accord certain standards of treatment to the 800 asylum seekers sent to Malaysia (Transferees).4 For example, Amnesty International Australia (Amnesty) argued: ...[T]he Arrangement is not a substitute for protections offered through international legal instruments, nor is it sufficient to ensure the human rights of those transferred to Malaysia will be protected, particularly in light of Malaysia's poor human rights record.5
3.6 The Australian Human Rights Commission (AHRC) commented that it is 'not convinced' that there are adequate safeguards in the arrangement to ensure that Malaysia upholds its obligation to respect the principle of non-refoulement.6 In their submission, Mr Andrew Bartlett and Ms Marianne van Galen-Dickie from the Australian National University argued that the Minister for Immigration and Citizenship 'cannot just be satisfied a country will act in a certain manner'. Instead: ...a country must be under an obligation, either under international law or within its own domestic legislation or from a legally binding agreement, to provide access and protection to all persons seeking asylum within its territory.7
3.7 Professor Ben Saul directed the committee to recent case law in respect of so- called 'diplomatic assurances': In recent years there has been this practice of one state giving a diplomatic assurance to another state that a certain person, if returned to that country, will not be mistreated or treated inhumanely or in a degrading way and so forth. The UN Human Rights Committee, in numerous cases in the last few years...has said that if these kinds of political agreements or assurances are the basis underlying the return of a person where there is a risk of inhuman or degrading treatment or torture and so on there have to be sufficiently enforceable guarantees and monitoring to uphold those agreements... In those UN Human Rights Committee cases and a number of European Court of Human Rights cases, states have been found to be in violation of international law because these assurances have not been accompanied by sufficient binding enforceable safeguards.8
4 See, for example, Australian Human Rights Commission (AHRC), Submission 18, p. 8; Law Council of Australia, Submission 24, p. 10; Australian Lawyers Alliance, Submission 22, p. 30. 5 Submission 13, p. 8. 6 Submission 18, p. 7. 7 Submission 19, p. 3. 8 Committee Hansard, 23 September 2011, p. 17. See also Ms Marianne van Galen-Dickie, Committee Hansard, 23 September 2011, p. 24. Page 21 3.8 In terms of the courses of action open to Australia in the event that Malaysia breaches the arrangement, the Refugee Council of Australia observed: Neither the arrangement itself nor the operational guidelines stipulate a course of action should either party fail to uphold the specified standards, nor do they outline avenues for seeking recourse if transferees are subject to treatment which violates the arrangement.9
3.9 The Commonwealth and Immigration Ombudsman (Ombudsman), Mr Allan Asher, advised the committee that it is his expectation that the Joint Committee and the Advisory Committee to be established under the arrangement should have a role 'at the very least [in providing] a level of supervision [and] a level of scrutiny that is no less than would apply in Australia'. However, the Ombudsman conceded that because the arrangement is not legally binding, there would be no steps that could be taken by the Joint Committee or the Advisory Committee to bring about a resolution in the event of any breach of the arrangement: At most, we could draw it to the attention of the parliament and the government that there do appear to be administrative shortfalls in the [arrangement].10
Practical implementation of the Malaysian Arrangement
3.10 A number of concerns were expressed during the inquiry with respect to the practical implementation of the arrangement.
Oversight and monitoring
3.11 Although the Malaysian Arrangement and the Operational Guidelines provide for the establishment of the Joint Committee and the Advisory Committee,11 submissions and evidence were critical of the oversight and monitoring provided for in the arrangement and, in particular, the practical extent to which any oversight might be conducted in Malaysia.12
3.12 For example, Liberty Victoria argued that the level of oversight and monitoring is 'insufficient' and would contain 'no scope for transparency, accountability or independent review of the arrangement'.13 The Australian Human
9 Submission 17, p. 5. 10 Committee Hansard, 23 September 2011, p. 6. 11 See clause 13 of the Arrangement and Item 5.0 of the Operational Guidelines. 12 See, for example, International Commission of Jurists (Australia) (ICJA), Submission 4; Coalition for Asylum Seekers, Refugees and Detainees (CARAD), Submission 11; Refugee Action Network Newcastle, Submission 12; Liberty Victoria, Submission 15; Refugee Council of Australia, Submission 17; AHRC, Submission 18; Commonwealth and Immigration Ombudsman (Ombudsman), Submission 29. 13 Submission 15, p. 9. Page 22 Rights Commission (AHRC) noted that the arrangement does not provide oversight and monitoring of the transit or detention centres.14
3.13 Several submissions expressed concerns about the level of scrutiny for offshore processing and the lack of an independent or external complaints-handling mechanism. These submissions proposed that an external Australian body should have oversight and monitoring responsibilities of offshore processing arrangements.15 For example, the International Commission for Jurists (Australia) (ICJA) suggested: ...some level of parliamentary, Ministerial or standing committee scrutiny, that can effectively monitor compliance with proposed [offshore] arrangements... [I]f any [offshore] arrangement is to proceed, an independent or external complaints-handling mechanism ought to be established to oversee the entire arrangement...[C]omplaints procedures should also be made widely known to asylum seekers.16
3.14 Mr Andrew Bartlett echoed the call to add independent oversight, suggesting that the Ombudsman or the AHRC would be an appropriate body.17
3.15 The Ombudsman, whose role includes oversight of immigration detention, refugee assessment, and review processing of irregular maritime arrivals, also emphasised the importance of scrutiny measures and indicated that he saw a role for his office in monitoring the arrangement: Importantly, the jurisdiction of my office is not geographically limited; it extends to actions by Australian officials overseas as well as contracted service providers who act for and on behalf of the government. I believe my office is also well placed to provide independent advice and oversight on immigration matters including, importantly, issues relating to the treatment of irregular maritime arrivals. … The need for oversight is particularly important in areas of administration where opportunities for judicial review are limited and where there may be some concern within the community about how government policy will be implemented.18
14 Submission 18, p. 14. 15 ICJA, Submission 4, pp 6-7; Refugee Council of Australia, Submission 17, p. 5. The concern with respect to independence was also raised by the AHRC, Submission 18, pp 13-14. 16 Submission 4, pp 6-7. 17 Committee Hansard, 23 September 2011, pp 20, 21. 18 Committee Hansard, 23 September 2011, p. 1. Page 23 Pre-transfer arrangements
3.16 Concerns were raised that, at the time of the signing of the arrangement, the details for the pre-transfer assessment of the vulnerability of asylum seekers to be transferred to Malaysia had not been finalised.19
3.17 The Ombudsman pointed to the lack of detail included in the arrangement, noting that there were a number of 'gaps' and insufficient documentation to provide assurance regarding the pre-transfer arrangements.20 Further, the Ombudsman noted that assurances of safety are especially important in relation to circumstances 'where there are special obligations for unaccompanied minors, for victims of torture and people who have come to Australia with pre-existing mental illnesses' because they are 'exceptional vulnerable individuals'. Accordingly, relevant procedures relating to such persons need to be 'much more clearly elaborated and published'.21
3.18 Professor Jane McAdam explained that the principle of non-refoulement requires a case-by-case assessment of the future safety of the individual involved, and an assessment of their 'individual protection needs' prior to being transferred to Malaysia, so as to prevent direct refoulement to Malaysia.22 However, neither the arrangement nor the Operational Guidelines provide for a proper legal assessment of individuals' claims for protection prior to removal from Australia.23
3.19 The Refugee Council of Australia argued that inappropriate or unsuitable pre- transfer processes may result in actual harm to vulnerable asylum seekers if they are transferred to a 'situation where their safety cannot be assured or where adequate protection and assistance may not be available'.24
3.20 ICJA recommended that asylum seekers should be given access to health and welfare professionals who are independent of the decision-making process: The ICJA submits that where any arrangement involving [offshore] processing is approved, that asylum-seekers be given access to medical practitioners, psychologists and lawyers who are independent of the decision-making process. The ICJA further submits due to the
19 ICJA, Submission 4, p. 7; Refugee Action Network Newcastle, Submission 12, p. 4; Amnesty, Submission 13, p. 6. 20 Committee Hansard, 23 September 2011, p. 5. 21 Committee Hansard, 23 September 2011, p. 5. The committee notes that the Pre-Removal Assessment Process for Transfers to a Third Country for Processing were provided by the Department of Immigration and Citizenship (DIAC) as an attachment to its response to question on notice 20, received 30 September 2011. 22 Committee Hansard, 23 September 2011, p. 12. 23 Australian Refugee Law Academics, Submission 25, p. 10. 24 Submission 17, pp 1-2. Page 24 vulnerabilities of asylum-seekers, advocates representing asylum-seekers are a necessity, not an option.25
3.21 The Coalition for Asylum Seekers, Refugees and Detainees (CARAD) argued that departmental officers may not have suitable qualifications to assess the vulnerability of asylum seekers, and proposed that decisions made about the status of asylum seekers should be made by medical and child protection professionals.26
Mechanisms for appeal
3.22 Submissions criticised the lack of provision in the Malaysian Arrangement of mechanisms to appeal removal decisions. Liberty Victoria, among others, condemned this omission, arguing that it is 'clearly unacceptable'.27
3.23 The Law Council of Australia noted that Article 13 of the International Covenant on Civil and Political Rights (ICCPR) provides that any person, prior to being expelled from a country, should be able to have their expulsion reviewed and to be represented in such a review: The fact that the [Malaysian Arrangement] makes no reference to any such review process or to access to representation indicates that it is inconsistent with Australia's obligations under the ICCPR. It also appears to be inconsistent with the Refugee Convention.28
3.24 The Hon John Dowd AO QC, President of the ICJA, also condemned the lack of appeal or review measures, and the consequent risk of refoulement: ...[T]his arrangement does not protect non-refoulement. In fact, it gives the right to Malaysia, under the arrangements, to send people back to their country of origin if they are not assessed to be refugees, and there is not necessarily a proper appeal mechanism, because there are mechanics that need to be worked out. Many of the people that are sent back to countries such as Sri Lanka, Afghanistan or wherever they come from will be subjected to torture, detention and in some cases death.29
25 Submission 4, p. 7. 26 Submission 11, p. 4. 27 Submission 15, p. 9. See also ICJA, Submission 4, pp 7-8; ACT Refugee Action Committee, Submission 5, pp 14-15; Refugee Council of Australia, Submission 17, p. 11; AHRC, Submission 18, p. 8; Law Council of Australia, Submission 24, pp 10-11; Australian Lawyers for Human Rights, Submission 28, p. 9; National Ethnic and Multicultural Broadcasters' Council, Submission 36, p. 4. 28 Submission 24, pp 10-11. 29 Committee Hansard, 23 September 2011, pp 27-28. Page 25 Access to independent legal advice
3.25 Submitters also commented on the lack of information available as to whether Transferees would be able to access independent legal advice under the arrangement.30
3.26 For example, Professor Ben Saul cited access to a lawyer, and recording of any interviews, as one of the safeguards necessary to adhere to international law.31 The Law Council of Australia highlighted the continuing need for Transferees to have access to legal assistance in Malaysia if they are found not to be refugees by the UNHCR and are subject to deportation from Malaysia.32
3.27 Australian Lawyers for Human Rights noted that asylum seekers are only afforded access to lawyers pursuant to section 256 of the Migration Act if they ask for them, and there is no obligation to advise detainees of their rights under section 256.33
Compliance with international law obligations and human rights standards
3.28 The arrangement is expressed as being 'subject to the respective Participant's relevant international law obligations, in accordance with the applicable international law instruments or treaties to which the Participant is a Party'.34
3.29 Australia's international legal obligations relevant to the arrangement arise principally under treaties to which Australia is a party, and which have been ratified by Australia.35 The major international law obligations identified by submitters and witnesses36 are contained in the Convention relating to the Status of Refugees
30 See, for example, ACT Refugee Action Group, Submission 5, p. 15; AHRC, Submission 18, p. 12, which noted that the Arrangement makes 'no provision for even basic assistance in accessing legal advice or advocacy'. See also Refugee Council of Australia, Submission 17, p. 11, which recommended 'immediate clarification' on a number of issues, including access to legal advice. 31 Committee Hansard, 23 September 2011, p. 17. 32 Submission 24, p. 11. 33 Submission 28, p. 11. 34 Clause 1(3) of the Arrangement. See further, clause 12(1) of the Arrangement. 35 Some submitters and witnesses also identified obligations arising under norms of customary international law, such as the principle of non-refoulement: see, for example, ICJA, Submission 4, p. 2; Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12. See further, Declaration of State Parties to the 1951 Convention and/or its 1967 Protocol Relating to the Status of Refugees (12-13 December 2001), UN DOC HCR/MMSP/2001/09. 36 See, for example, Human Rights Watch, Submission 2; United Nations Association of Australia, Submission 3; ICJA, Submission 4; Liberty Victoria, Submission 15; Refugee Council of Australia, Submission 17; AHRC, Submission 18; Castan Centre for Human Rights Law, Submission 21; Australian Lawyers Alliance, Submission 22; Australian Refugee Law Academics, Submission 25; Australian Lawyers for Human Rights, Submission 28. See further, Mr Andrew Bartlett and Ms Marianne van Galen-Dickie, response to question on notice, received 28 September 2011. Page 26 (Refugee Convention)37 and the Protocol relating to the Status of Refugees (Refugee Protocol).38 Key obligations are: the obligation of non-refoulement, which prohibits the expulsion or return (refouler) of a refugee, in any manner whatsoever, to the frontiers of territories where his or her life or freedom would be threatened on account of his or her race, religion, nationality or membership of a particular social group or political opinion;39 and the obligations of non-discrimination and non-penalty for unlawful arrival, which prohibit: discrimination against refugees on the basis of race, religion or country of origin;40 and the imposition of penalties upon refugees who arrive in Australia unlawfully, provided that they have come directly from a territory in which their life or freedom was threatened, and they present themselves without delay to the authorities in Australia.41
3.30 The process of transfer and the conditions in Malaysia were highlighted as areas in which Australia may be in breach of human rights standards and international law obligations.42 These obligations arise principally under treaties which require that certain minimum treatment standards are afforded to refugees or asylum seekers who arrive in Australia. These include: specific obligations under the Refugee Convention, including to provide access to the courts, primary education, work, housing, freedom of religion, non-discrimination on the basis of race, religion or country of origin in the application of the Convention, freedom of association and movement, and the
37 Opened for signature 28 July 1951 [1954] ATS 5, (entered into force for Australia on 22 April 1954). 38 Opened for signature 31 January 1967, [1973] ATS 37, (entered into force for Australia on 13 December 1973). 39 Refugee Convention, Article 33(1). 40 Refugee Convention, Article 3. 41 Refugee Convention, Article 31. 42 See, for example, ICJA, Submission 4, p. 4; ACT Refugee Action Committee, Submission 5, p. 12; Liberty Victoria, Submission 15, pp 5-6; AHRC, Submission 18, pp 9-13; Australian Refugee Law Academics, Submission 25, pp 3 and 15; Darwin Asylum Seekers Support and Advocacy Network (DASSAN), Submission 20, p. 3; Castan Centre for Human Rights Law, Submission 21, pp 3, 5-8; Australian Lawyers Alliance, Submission 22, pp 9-10, 22-23; Law Society of NSW, Submission 23, p. 4; Law Council of Australia, Submission 24, p. 10; Australian Lawyers for Human Rights, Submission 28, pp 7-8. See further, the Hon John Dowd AO QC, ICJA, Committee Hansard, 23 September 2011, p. 27. Page 27 provision for identity documentation including a refugee document in passport form;43 obligations under covenants of general application, such as the International Covenant on Civil and Political Rights (ICCPR)44 and the International Covenant on Economic, Social and Cultural Rights (ICESCR),45 which include affording rights of non-discrimination, access to remedies for current and potential breaches of recognised rights, the entitlement to commence court proceedings in respect of deprivations of liberty by way of arrest or detention,46 and rights to housing, healthcare and education;47 obligations in respect of physical and psychological treatment, including under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT);48 and specific obligations concerning the treatment of minors (Transferees under 18 years), including unaccompanied minors, under the Convention on the Rights of the Child (CRC).49
Obligation of non-refoulement
3.31 The incompatibility of the Malaysian Arrangement with Australia's non- refoulement obligations was the subject of considerable evidence during the inquiry.50 Submitters and witnesses identified areas of major inconsistency between the arrangement, and the risks of both direct and indirect refoulement. Direct refoulement
43 See Articles 3, 4, 15, 16, 17, 21, 22, 26, 27, 28. 44 Opened for signature, 19 December 1966, [1980] ATS 23, (entered into force for Australia on 13 November 1980). 45 Opened for signature 19 December 1966, [1976] ATS 5 (entered into force for Australia on 10 March 1976). 46 See ICCPR, Articles 2(3), 9, 26; ICESCR, Articles 11-13. 47 ICESCR, Articles 11-13. 48 Opened for signature, 4 February 1985, [1989] ATS 21 (entered into force for Australia on 7 September 1989). See especially, Articles 2 (prohibition on torture), 3 (prohibition on refoulement where there are substantial grounds for believing that the person would be in danger of being subjected to torture on his or her return), 16 (prohibition on cruel, inhuman or degrading treatment). See further, ICCPR, Article 7 (prohibition on torture and cruel, inhuman or degrading treatment or punishment). 49 Opened for signature 20 November 1989, [1991] ATS 4 (entered into force for Australia on 16 January 1991). See especially Articles 2, 3(1), 20(1), 22, 24(1), 28, 37(b). 50 See, for example, Human Rights Watch, Submission 2; United Nations Association of Australia, Submission 3; ICJA, Submission 4; Liberty Victoria, Submission 15; Refugee Council of Australia, Submission 17; Castan Centre for Human Rights Law, Submission 21; Australian Lawyers Alliance, Submission 22; Australian Refugee Law Academics, Submission 25; Australian Lawyers for Human Rights, Submission 28. See further, Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12; the Hon John Dowd AO QC, ICJA, Committee Hansard, 23 September 2011, pp 27-28, 32. Page 28 refers to the risk that Transferees may be exposed to persecution in Malaysia. Indirect refoulement refers to the risk that Transferees may be returned to their country of persecution following their transfer to Malaysia.51
3.32 In addition to the obligation in Article 33(1) of the Refugee Convention, submitters and witnesses identified further non-refoulement obligations to which Australia is subject, which extend beyond threats to a person's life or liberty, including: a prohibition on refoulement under Article 3 of CAT, where there are substantial grounds for believing that a person would be in danger of being subjected to torture on his or her return;52 a prohibition on refoulement arising from Articles 6 and 7 of the ICCPR and Article 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination,53 which have been interpreted by the United Nations Human Rights Committee as prohibiting the removal of a person to another country in circumstances where there is a real risk that his or her rights under those covenants will be violated;54 and a prohibition under the CRC on the return of a child to a country where there are substantial grounds for believing that there is a real risk of irreparable harm to the child.55
Direct refoulement
3.33 On the basis of evidence received, it is clear that the arrangement may contravene Australia's obligations to prevent the direct refoulement of Transferees since the blanket designation of Malaysia as a 'safe' third country under section 198A of the Migration Act is inconsistent with Article 33(1) of the Refugee Convention. The committee was informed that the obligation of non-refoulement requires a case- by-case determination that a particular country is safe for a particular individual.56
51 This broad categorisation was articulated by the Australian Refugee Law Academics, Submission 25, pp 10-13. See further, Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12. 52 AHRC, Submission 18, p. 8; Castan Centre for Human Rights Law, Submission 21, pp 16-17; Australian Refugee Law Academics, Submission 25, p. 10. 53 Opened for signature 17 March 1966, [1975] ATS 40 (entered into force for Australia 30 October 1975). 54 Australian Refugee Law Academics, Submission 25, p. 10; Amnesty, Submission 13, pp 6-8; AHRC, Submission 18, p. 8. 55 Castan Centre for Human Rights Law, Submission 21, p. 11, citing UN Committee on the Rights of the Child, General Comment 6 (2005), p. 10. 56 Australian Refugee Law Academics, Submission 25, p. 10; Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12. See further, CARAD, Submission 11, p. 2; UnitingJustice Australia, Submission 14, pp 1-2; Liberty Victoria, Submission 15, pp 2-4. Page 29 3.34 Provisions of the arrangement which purport to discharge Australia's obligations to avoid direct refoulement do not appear to guarantee that an appropriately rigorous approach will be taken in making case-by-case determinations as to whether Malaysia is a safe country for individual Transferees. For example, the group of academics specialising in refugee law (Australian Refugee Law Academics) were critical of clause 9(3) of the arrangement and Item 1 of the Operational Guidelines. Clause 9(3) provides that Australia will implement 'appropriate pre-screening mechanisms in accordance with international standards before a transfer is effected', and item 1 of the Operational Guidelines sets out certain pre-screening and assessment tasks.57
3.35 The Australian Refugee Law Academics argued that these provisions are inadequate because they do not provide transparent or comprehensive assessment criteria. The academics also noted that 'the Operational Guidelines stipulate only the gathering of biodata, basic security checks and fitness to travel assessments' and do not provide for 'a proper legal assessment of individuals' claims for protection'.58
3.36 Several submitters and witnesses also expressed the view that the following factors create a real risk that Transferees may be subjected to direct refoulement in Malaysia – that is, treatment in breach of their rights under treaties including the Refugee Convention, CAT, the ICCPR, the ICESCR and the CRC: the arrangement is not legally binding on Malaysia, meaning that there are no enforceable safeguards against the risk of refoulement.59 Malaysia is not a signatory to the same treaties as Australia which contain non-refoulement obligations – in particular, Malaysia is not a signatory to the Refugee Convention, CAT, the ICCPR or the ICESCR and, although Malaysia is a signatory to the CRC, it has made substantial reservations in respect of many Articles;60 Malaysia lacks domestic legislation which provides equivalent legal rights and protections to Transferees, to those contained in the relevant treaties;61 and Malaysia has a documented history of ill-treatment and discrimination towards asylum seekers and refugees.62
57 Australian Refugee Law Academics, Submission 25, p. 10. 58 Australian Refugee Law Academics, Submission 25, p. 10. 59 Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12. 60 Human Rights Watch, Submission 2, p. 1; ICJA, Submission 4, p. 4; Law Council of Australia, Submission 24, p. 9. 61 ICJA, Submission 4, p. 4; ACT Refugee Action Committee, Submission 5, pp 10-12; Liberty Victoria, Submission 15, p. 6; AHRC, Submission 18, pp 11-12; Law Council of Australia, Submission 24, p. 9. Page 30 3.37 The Australian Human Rights Commission (AHRC) expressed concern that there are inadequate provisions in the arrangement for Transferees who are found by Malaysia not to satisfy the criteria in the Refugee Convention, but who may have complementary protection needs: that is, such persons may be in need of protection under other human rights conventions to which Australia is a party. The AHRC's view was that the arrangement contains inadequate operational details as to how claims for protection in these circumstances would be assessed,63 and this lack of detail fails to safeguard against the risk of refoulement of such Transferees.64
Indirect refoulement
3.38 Submitters also argued that the arrangement fails to safeguard against the risk that Malaysia may return Transferees to their countries of persecution. In particular, Australia's obligations to prevent indirect refoulement require it to ensure that Transferees have access to 'fair and efficient procedures' in Malaysia for determining their refugee status. The arrangement fails to establish such procedures because: Malaysia lacks an adequate domestic procedure, guaranteed by law, for making refugee status determinations, and its undertaking to respect the principle of non-refoulement in clause 10(2) of the arrangement is not legally binding;65 under the arrangement, the UNHCR is merely permitted, at the grace of the Malaysian Government, to conduct such determinations. As a non-state party, the UNHCR lacks the resources of government to conduct assessments and is unable to guarantee that the Transferees whom it assesses as meeting the criteria of the Refugee Convention will not be refouled by the Malaysian Government;66 and notwithstanding that the principle of non-refoulement is part of customary international law, Malaysia has a history of non compliance. For example, the
62 See, for example, reports by the United Nations High Commissioner for Refugees (UNHCR), United Nations Children's Fund (UNICEF), Amnesty and other Malaysian and international non-government organisations, summarised in ACT Refugee Action Committee, Submission 5, Appendix 1, pp 20-24; Australian Refugee Law Academics, Submission 25, pp 15-16; ICJA, Submission 4, p. 2. 63 See clause 11(2) of the Arrangement. 64 AHRC, Submission 18, p. 8. See further, Australian Refugee Law Academics, Submission 25, pp 10-11. 65 ICJA, Submission 4, p. 2; ACT Refugee Action Committee, Submission 5, Appendix 1, p. 18; Office of the Commissioner for Equal Opportunity, South Australia, Submission 10, p. 1; Amnesty, Submission 13, pp 5-8; Refugee Council of Australia, Submission 17, p. 4; AHRC, Submission 18, pp 7-8; Castan Centre for Human Rights Law, Submission 21, p. 17; Australian Lawyers Alliance, Submission 22, pp 20-21; Law Society of NSW, Submission 23, p. 3; Law Council of Australia, Submission 24, p. 10; Australian Refugee Law Academics, Submission 25, pp 11-13; New South Wales Council for Civil Liberties, Submission 27, p. 2. 66 See, for example, Australian Refugee Law Academics, Submission 25, pp 11-12. Page 31 Australian Refugee Law Academics referred to reports of the refoulement of Uighurs from Malaysia, after the signing of the arrangement.67
Obligations of non-discrimination and non-penalty for unlawful arrival
3.39 Several submitters and witnesses argued that the arrangement is inconsistent with Australia's obligations under Articles 3 and 31 of the Refugee Convention not to discriminate against refugees on the basis of race, religion or country of origin; or to penalise refugees and – by extension – asylum seekers, for the unlawful manner of their arrival in Australia.68
3.40 In particular, the arrangement subjects Transferees to conditions less favourable than those afforded to persons whose protection applications are processed in Australia, which may constitute a penalty under Article 31.69 Specific instances of less favourable treatment include: the mandatory detention of Transferees in Australia pending their transfer to Malaysia, and the refusal of the Australian Government to process their applications for protection in Australia;70 the removal of Transferees from Australia for processing (and potentially long-term residence) in Malaysia (which, as noted above, has a history of ill-treatment towards refugees and asylum seekers);71 and the potential liability of certain Transferees to criminal sanctions under Malaysian law because they have travelled through Malaysia illegally on their way to Australia.72
67 See, for example, Australian Refugee Law Academics, Submission 25, p. 13. See further, Amnesty International, 'Abused and Abandoned: refugees denied rights in Malaysia', June 2010, p. 14, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned- refugees_denied_rights_in_malaysia.pdf (accessed 30 September 2011). 68 See, for example, ICJA, Submission 4, p. 3; Liberty Victoria, Submission 15, pp 2-4; Castan Centre for Human Rights Law, Submission 21, p. 5. See also Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12. 69 See, for example, ICJA, Submission 4, p. 3; Liberty Victoria, Submission 15, pp 2-4; AHRC, Submission 18, pp 9-10; DASSAN, Submission 20, p. 1; Castan Centre for Human Rights Law, Submission 21, p. 5; Professor Jane McAdam, Committee Hansard, 23 September 2011, p. 12; Dr Judyth Watson, CARAD, Committee Hansard, 23 September 2011, p. 23. The Law Society of NSW, Submission 23, p. 3 expressed uncertainty as to whether the Arrangement imposes a penalty, but stated that it does place Transferees in a position of 'great disadvantage and vulnerability'. 70 ICJA, Submission 4, p. 3; Amnesty, Submission 13, p. 9; Liberty Victoria, Submission 15, p 3; AHRC, Submission 18, p. 8. 71 ICJA, Submission 4, p. 3; Liberty Victoria, Submission 15, p 4; AHRC, Submission 18, p. 11. 72 ICJA, Submission 4, p. 3; Amnesty, Submission 13, p. 8; Law Society of NSW, Submission 23, p. 3. Page 32 Conditions in Malaysia
3.41 According to the UNHCR, there are approximately 90,000 refugees and asylum seekers currently in Malaysia.73 Several submissions provided the committee with evidence of the conditions for, and treatment of, refugees and asylum seekers in Malaysia.74
3.42 Amnesty International Australia (Amnesty) and Dr Judyth Watson, a CARAD Board member, provided detailed information on the conditions and issues which confront asylum seekers and refugees in Malaysia: Malaysian law does not distinguish between illegal migrant workers and asylum seekers/refugees as there is no legislative framework with respect to refugees. Asylum seekers and refugees have no right to do paid work are often forced to work in dangerous and dirty jobs, subject to exploitation, and risk arrest by police and immigration officials in order to survive. Asylum seekers and refugees are at risk of detention or arrest. People in breach of Malaysia's immigration laws are detained in overcrowded centres, then sentenced to jail. They are also often forced to pay fines. Regular immigration raids and arrests are carried out by state agents and by a volunteer citizens' police force, the People's Volunteer Corps (Ikatan Relawan Rakyat or RELA). Refugees and asylum seekers in Malaysia are regularly subjected to mistreatment in Malaysian detention centres. Malaysian authorities engage in the practice of caning. In 2002, the Malaysian Government passed a law endorsing caning as a form of punishment for immigration violations. With no option but to violate immigration laws (such as having to work), asylum seeker and refugees in Malaysia regularly risk being caned.
73 UNHCR website, '2011 UNHCR country operations profile – Malaysia', available at: http://www.unhcr.org/cgi-bin/texis/vtx/page?page=49e4884c6&submit=GO (accessed 26 September 2011). 74 See, for example, Amnesty, Submission 13, pp 4-5; AHRC, Submission 18, pp 11-12; DASSAN, Submission 20, p. 5; Mr Paul Power, Refugee Council of Australia, Committee Hansard, 23 September 2011, p. 4. See also Dr Judyth Watson, CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th', p. 2, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf (accessed 27 September 2011). Page 33
Refugees and asylum-seekers in Malaysia are vulnerable to abuse and violence in their homes, in public, and at their places of work because they have no rights and little protection.75
3.43 Amnesty has produced a report which details the torture and other mistreatment that refugees and asylum seekers are subjected to in Malaysia. In particular, Amnesty notes the risk of, and injuries sustained from, caning: Illegal entry and re-entry to Malaysia after deportation are punishable by caning. Refugees and asylum seekers...are at risk of caning. ... Those who are convicted of illegal entry are normally caned up to three times, although the law allows for them to be caned up to six times. The cane cuts through the skin and leaves scars that are visible months later.76
3.44 Amnesty's report also highlights the involvement of RELA in immigration raids and checks: RELA's approach is particularly problematic, consisting of crude profiling based on apparent race or ethnicity, and a general attitude of "arrest now, investigate later". These largely untrained RELA agents frequently subject the people they arrest to humiliation, physical abuse, theft and extortion.77
3.45 The Darwin Asylum Seeker Support and Advocacy Network (DASSAN) provided an account from refugee, R, who is now living in Darwin, of his experiences in Malaysian detention camps: ...R experienced raids by Malaysian authorities during which he was physically abused, with excessive punching and kicking, and was arrested. ... In relation to conditions in the detention camps in Malaysia, R reports that there was overcrowding, physical abuse by the authorities directed toward the refugees, sexual harassment and insufficient food and drinking water.
75 Amnesty, Submission 13, pp 4-5; Dr Judyth Watson, CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th', p. 2, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf (accessed 27 September 2011). 76 See Amnesty International, 'Abused and Abandoned: refugees denied rights in Malaysia', June 2010, p. 15, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned- refugees_denied_rights_in_malaysia.pdf (accessed 30 September 2011). 77 See Amnesty International, 'Abused and Abandoned: refugees denied rights in Malaysia', June 2010, p. 9, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned- refugees_denied_rights_in_malaysia.pdf (accessed 30 September 2011). Amnesty International goes on to note that in July 2009 it was informed by the Director General of Immigration that RELA's role in immigration enforcement would end in July 2009. At the time of writing of Amnesty International's report (June 2010), RELA continued to operate in that capacity. Page 34 These conditions lead to malnutrition, mental damage and some detainees contracting tuberculosis.78
Standards of treatment
3.46 Pursuant to the arrangement, the Malaysian Government has made certain commitments with respect to asylum seekers transferred from Australia, including: 79 facilitation of the lawful presence of Transferees in Malaysia; and acknowledgement that Transferees will enjoy standards of treatment consistent with those set out in the Operational Guidelines.80
3.47 The Operational Guidelines provide that the lawful presence of the Transferees in Malaysia will be facilitated through an exemption under the Malaysian Immigration Act.81
3.48 The arrangement provides that 'Transferees...will be treated with dignity and respect and in accordance with human rights standards'.82 The Operational Guidelines provide that, following departure from the Transit Centre, 'Transferees will enjoy an adequate standard of treatment including having access to the same support as other asylum seekers and refugees in the community'. In limited circumstances, 'modest' backup safety-net provisions will be available through IOM on an 'as needs' basis.83 The Operational Guidelines make specific provisions for accommodation,84 self- reliance opportunities,85 education,86 and medical services.87 Compliance with human rights standards
3.49 A number of submissions highlighted the lack of enforceability of the standards of treatment contained in the Malaysian Arrangement and the Operational Guidelines, because neither the arrangement nor the Operational Guidelines are legally binding.88
78 Submission 20, p. 5. 79 Clause 10(3)(a) of the arrangement. This covers the period where the Transferee's claim for protection is being considered and, where a Transferee is determined to be in need of protection, any period they wait for resettlement. 80 Clause 10(4)(a) of the arrangement. 81 Item 1.1.2 (f) of the Operational Guidelines. 82 Clause 8(1) of the arrangement. 83 Item 3.0 of the Operational Guidelines. 84 Item 3.1 of the Operational Guidelines. 85 Item 3.2 of the Operational Guidelines. 86 Item 3.3 of the Operational Guidelines. 87 Item 3.4 of the Operational Guidelines. 88 Refugee Council of Australia, Submission 17, p. 5; AHRC, Submission 18, p. 11. Page 35 3.50 Aside from the lack of enforceability of the standards of treatment, submitters also remarked that the standards provided for in the arrangement and the Operational Guidelines do not meet international law obligations or human rights standards.89
3.51 In relation to the provision of education, the Refugee Council of Australia argued that the standard under the Malaysian Arrangement falls well short of obligations under the Refugee Convention: ...[T]he operational guidelines stipulate that transferees of school age will have access to private education (presumably at their own cost) or, where such arrangements are not available or affordable, to informal educational arrangements. This is a far lower standard than that required by the Refugee Convention, which stipulates that refugees should have access to elementary education on the same basis as nationals.90
3.52 Human Rights Watch noted that '[n]either private education nor informal education meet the standards for the right to free and compulsory primary education in article 28 of the Convention on the Rights of the Child, to which both Australia and Malaysia are parties'.91
3.53 With respect to the standards for the provision of healthcare, the AHRC referred to the provisions in the ICESCR and the CRC which provide that all people have a right to the highest attainable standard of physical and mental health: Despite this, the operational guidelines state simply that 'Transferees will have access to basic medical care under arrangements UNHCR has for asylum seekers and refugees with some private clinics' and that 'existing IOM arrangements with a private hospital' will be used when emergency medical assistance is required. Neither the arrangement nor the guidelines make mention of timeframes for the provision of health services; provision of specialist medical care; access to dental care; access to mental health care; or access to torture and trauma counselling.92
3.54 In addition, the AHRC highlighted concerns that it has regarding standards of housing and employment for Transferees to Malaysia: International human rights standards provide that everyone is entitled to an adequate standard of living for themselves and their families, including adequate food, clothing and housing. It is not clear whether appropriate
89 See, for example, AHRC, Submission 18, pp 9-14; Australian Refugee Law Academics, Submission 25, p. 15. 90 Submission 17, pp 3-4. 91 Submission 2, p. 4. 92 Submission 18, pp 12-13. Page 36 provision will be made in this regard for people transferred to Malaysia. The operational guidelines state that people who are transferred will be provided with basic accommodation and a subsistence allowance for one month, after which time they are expected to become self-sufficient through employment and move into private accommodation. While the guidelines provide for some assistance to be provided to needy asylum seekers by the [IOM and the UNHCR] after this initial period, there is a lack of clarity about the circumstances in which such assistance will be provided and the form that it will take...[I]t also appears that asylum seekers transferred to Malaysia may not receive formal work permits which would ensure their legal right to employment. In these circumstances, it is unlikely that people transferred to Malaysia would have any industrial safeguards or avenues or recourse, for example, in the event that their employer refuses to pay them.93
Other issues
3.55 Mr Andrew Bartlett commented on the role that the UNHCR and IOM will be required to fulfil in assisting the 800 Transferees, expressing concern that these organisations may not have adequate resources in Malaysia to engage in this role.94 The group of Australian Refugee Law Academics also observed: Much of the assistance provided for by the [Operational] Guidelines is to be delivered by UNHCR or IOM. Indeed, the Arrangement was concluded 'on the basis that UNHCR and [IOM] can fulfil the roles and functions envisaged in the Operational Guidelines'. The resources of these organisations, particularly UNHCR, are extremely limited.95
3.56 Concerns have been expressed that the Malaysian Arrangement creates a 'two tiered refugee system' in Malaysia.96 Dr Judyth Watson from CARAD, for example, has noted that the 800 Transferees are already being referred to as 'gold card' holders.97 Similarly, Human Rights Watch, while welcoming the Malaysian
93 Submission 18, p. 12. See also Castan Centre for Human Rights Law, Submission 21, p. 7. 94 Mr Andrew Bartlett, Committee Hansard, 23 September 2011, p. 21, who recommended that Australia provide more resources to the UNHCR and IOM. See also Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th', pp 5-6, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf (accessed 27 September 2011). 95 Submission 25, p. 15. 96 Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th', p. 6, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf (accessed 27 September 2011). 97 Dr Judyth Watson, Board Member, CARAD, 'Refugee Council of Australia visit to Malaysia July 11th-15th', p. 2, available at: http://www.carad.org.au/images/stories/RCOA_visit_to_Malaysia_11072011.pdf (accessed 27 September 2011). Page 37 Government's recognition of asylum seekers as being lawfully present in that jurisdiction, nevertheless articulated its opposition to the arrangement: [I]t is unacceptable to create a special exception for 800 people because they are being swapped when some 90,000 other refugees and asylum seekers living in Malaysia—with similar claims and vulnerability—remain as 'illegal migrants' under Malaysian law, subject to arrest, detention, and deportation.98
Unaccompanied minors
3.57 Several submitters raised concerns about the implication of sending unaccompanied minors to Malaysia, describing the situation variously as 'dire',99 'grim',100 and a 'real threat to the welfare of child transferees'.101 The welfare of unaccompanied minors at both the pre- and post-transfer stages was of greatest concern.
3.58 For example, the AHRC submitted that – in addition to the possibility that such a transfer may breach certain fundamental rights of the child, including those relating to non-refoulement, liberty, and access to healthcare and education – the arrangement does not clearly detail the guardianship arrangements for unaccompanied minors in Malaysia: The operational guidelines anticipate that people transferred under the arrangement will be 'handed over' to Malaysian authorities upon arrival in Malaysia. From that point, unaccompanied minors will be beyond the care and custody of the Minister for Immigration and Citizenship, who is their guardian under Australian law. In contrast to Australian law, Malaysian law permits, but does not require, the appointment of a guardian in respect of persons seeking asylum who are unaccompanied minors. It is unclear what arrangements have been made for the appointment of a guardian for any children transferred under the arrangement. In short, unaccompanied minors transferred under the arrangement would be sent to a country with a poor record for the treatment of asylum seekers and refugees, in the absence of clear, mandated arrangements for their guardianship, care and custody. The [AHRC] is gravely concerned about the fate of any unaccompanied child placed into these circumstances.102
98 Submission 2, p. 4. 99 ICJA, Submission 4, p. 8. 100 ACT Refugee Action Committee, Submission 5, p. 15. 101 Liberty Victoria, Submission 15, p. 5. 102 Submission 18, pp 16-17. See also Castan Centre for Human Rights Law, Submission 21, p. 10; Australian Refugee Law Academics, Submission 25, p. 16; Mr Allan Asher, Ombudsman, Committee Hansard, 23 September 2011, p. 6. Page 38 3.59 Submitters identified additional weaknesses in the detail of the Malaysian Arrangement concerning unaccompanied minors, such as: the arrangement does not – and cannot, on account of its non-legally binding nature – provide a guarantee that Malaysia will adhere to its international and domestic legal obligations in respect of unaccompanied minors;103 and Malaysia is not, in any event, under a domestic legal obligation to appoint a guardian to unaccompanied minors who are transferred under the arrangement, but is merely invested with the discretion do so.104
3.60 Some submitters and witnesses also argued that the Minister has conflicting roles in relation to unaccompanied minors, due to the Minister's role as their legal guardian on the one hand, and as immigration decision-maker on the other.105
3.61 Liberty Victoria commented on the apparently conflicting nature of the Minister's duties as guardian – that is 'nurturer and protector' – and Immigration Minister – that is, 'detainer, immigration decision-maker [and] deporter'.106 Australian Lawyers for Human Rights expressed similar concerns: In the course of the proceedings before the High Court, it became clear that there was little in place in Malaysia to respond to the particular needs of unaccompanied minors. Given the onerous responsibilities that the Minister for Immigration holds as legal guardian of unaccompanied minors, any attempt at legislative amendments to relieve him of those responsibilities in order to effect the transfer of unaccompanied minors manifestly not in their best interests would itself conflict with his 'best interests' responsibilities
103 See, for example, ICJA, Submission 4, p. 10; Castan Centre for Human Rights Law, Submission 21, pp 10-11. The committee notes, however, that the Commonwealth Ombudsman has acknowledged 'as a positive initiative that an independent observer role is to be provided by a service provider [to oversee the transfer of unaccompanied minors]. Under that arrangement, the provider will be available to attend interviews with unaccompanied minors and advise the interviewer of any concerns about the emotional and physical state of the child or young person, to provide a reassuring and friendly presence for the child or young person, ensure his or her understanding of the process, and otherwise to look out for his or her interest': Ombudsman, response to question on notice, received 30 September 2011, p. 3. 104 AHRC, Submission 18, p. 16; DASSAN, Submission 20, p. 4. In this regard, the committee notes advice from the Commonwealth Ombudsman's office that it is its understanding that the arrangement envisages that unaccompanied minors entering Malaysia would fall under the provisions of the Malaysian Child Act 2001, and that a Malaysian government official would become their legal guardian. That official would seek a court order (within 24 hours) for the unaccompanied minors to be placed in suitable care, including supervised group house arrangements for older unaccompanied minors and foster care arrangements, as appropriate: Ombudsman, response to question on notice, received 30 September 2011, p. 3. 105 See, for example, Liberty Victoria, Submission 15, p. 10. See also CARAD, Submission 11, p. 4; Refugee Council of Australia, Submission 17, pp 2-3; Law Council of Australia, Submission 24, p. 12; Professor Ben Saul, Committee Hansard, 23 September 2011, p. 16; the Hon John Dowd AO QC, ICJA, Committee Hansard, 23 September 2011, p. 27. 106 Submission 15, p. 10. Page 39 under article 3 of the Convention on the Rights of the Child. In any other event, it would seem inconceivable that transfer could ever be regarded as being in the best interests of a child.107
3.62 A number of submissions also noted the implications of the High Court's decision, namely: an unaccompanied minor may not lawfully be taken from Australia without the Minister's written consent provided specifically under the Guardianship of Children Act; and administrative decisions made under the Guardianship of Children Act concerning the transfer of unaccompanied minors are amenable to judicial review.108
Resettlement of 4,000 refugees in Australia
3.63 Submitters and witnesses generally welcomed the provision in clause 5 of the Malaysian Arrangement for the resettlement of 4,000 refugees from Malaysia to Australia over a four-year term. However, many were critical of the 'swap' effected by this provision when operating in combination with clause 4, which enables the transfer of 800 asylum seekers to Malaysia.109 For example, Amnesty argued: While increasing resettlement numbers directly from Malaysia is a welcome move, there is no need for Australia to link this increase with the expulsion of 800 asylum seekers who have arrived here by boat.110
3.64 The Refugee Council of Australia described the resettlement of 4,000 refugees in Australia as a 'potentially positive aspect of the arrangement', but expressed concern that the 'swap' effected by clauses 4 and 5 'sets a number of problematic precedents'. In particular, it argued that this aspect of the arrangement fails to adopt a protection-centred approach to resettlement: The arrangement with Malaysia undermines the principle that resettlement, while it can be used strategically, is first and foremost a mechanism for protection. UNHCR maintains that, even in cases where resettlement is used as a strategic tool, 'the first purpose of resettlement must always be the
107 Submission 28, p. 10. 108 See, for example, ICJA, Submission 4, p. 11; AHRC, Submission 18, pp 15-16; DASSAN, Submission 20, p. 4; Castan Centre for Human Rights Law, Submission 21, pp 15-16; Australian Lawyers Alliance, Submission 22, pp 12-13; Law Council of Australia, Submission 24, p. 12; DIAC, Submission 31, p. 15. 109 See, for example, ICJA, Submission 4, pp 16-17; CARAD, Submission 11, p. 2; Amnesty, Submission 13, p. 2; Refugee Council of Australia, Submission 17, pp 6-7; Australian Refugee Law Academics, Submission 25, p. 7; Mr Allan Asher, Ombudsman, Committee Hansard, 23 September 2011, p. 9; Ms Marianne van Galen-Dickie, Committee Hansard, 23 September 2011, p. 22; the Hon John Dowd AO QC, ICJA, Committee Hansard, 23 September 2011, p. 33. 110 Submission 13, p. 3. Page 40 provision of individual protection for those who cannot be provided secure asylum in a first asylum country'. The provisions of the arrangement, however, do not reflect this principle. The operational guidelines stipulate that the 4,000 persons resettled 'must be able to establish they entered Malaysia and were registered by UNHCR prior to the date of signing of the Arrangement and have remained in Malaysia'. The resettlement allocation will not, therefore, include refugees who arrived in Malaysia after the arrangement was finalised or any of the 800 transferees – even if they are considered by UNHCR to be priority cases for resettlement.111
3.65 The committee also heard evidence about the Department's approach to counting the number of refugees to be resettled in Australia under clause 5 of the Malaysian Arrangement. An officer from the Department stated that the arrangement operates in tandem with Australia's existing humanitarian resettlement program, explaining that the 4,000 refugees resettled from Malaysia under the arrangement (at a rate of 1,000 refugees per year) will be additional to intakes under the existing resettlement program from Malaysia (currently 200-500 refugees per year).112 According to the Department, this means that Australia will offer a global total of 14,750 resettlement places annually over the term of the Malaysian Arrangement.113
3.66 The departmental officer advised the committee that the government has not put in place any process to identify the refugees resettled pursuant to the arrangement (that is, the additional 1,000 places per year).114 Rather, the 1,000 new places are added to the existing resettlement intake of around 200-500 places, to create a total figure in respect of Malaysia. The officer stated that the Department will report figures on the number of refugees being resettled out of Malaysia, and anticipates that the annual total 'will be somewhere between 1,300 and 1,500 depending on what UNHCR global priorities and processing deliver'.115 3.67 Due to this intermixing of resettlement numbers, departmental representatives were unable to provide the committee with any information at the public hearing on how many refugees – if any – have been resettled pursuant to the arrangement.116 An officer of the Department advised that the first 1,000 refugees resettled from Malaysia will be deemed to be the 1,000 resettled under the Malaysian Arrangement.117
111 Submission 17, pp 6-7. 112 Mr Garry Fleming, DIAC, Committee Hansard, 23 September 2011, p. 40 (evidence on the existing resettlement figures from Malaysia of 200-500 per year). See further, DIAC, Submission 31, p. 8 (evidence on the resettlement intake under the arrangement being additional to intakes under ongoing resettlement programs). 113 Submission 31, p, 8. 114 Mr Garry Fleming, DIAC, Committee Hansard, 23 September 2011, pp 40-41. 115 Mr Garry Fleming, DIAC, Committee Hansard, 23 September 2011, p. 41. 116 Committee Hansard, 23 September 2011, pp 40-41. 117 Mr Garry Fleming, DIAC, Committee Hansard, 23 September 2011, p. 40.
CHAPTER 4 Committee view and recommendations
4.1 In the committee's view, the terms of the Malaysian Arrangement and the associated Operational Guidelines, along with their practical implementation, are fundamentally and irreversibly flawed. In particular, the committee strongly believes that the Malaysian Arrangement is lacking in significant detail and, most importantly, fails to address serious human rights issues.
Non-legally binding nature of the Malaysian Arrangement
4.2 At its most basic level, the arrangement is inadequate and unacceptable because it is extraordinarily imprecise in nature, and includes the use of vague language and terms which are not defined and which appear only to reflect the 'political commitments' of the parties. Since the Malaysian Arrangement is non-legally binding, there is absolutely no means to enforce the obligations of the parties under the arrangement.
4.3 Malaysia has apparently undertaken major obligations in relation to the principle of non-refoulement of asylum seekers; to treat asylum seekers with dignity and respect and in accordance with human rights standards; and to deal with the special needs of vulnerable cases, including unaccompanied minors.1 However, the Australian Government is powerless in the event that Malaysia does not comply with the arrangement. As the Ombudsman highlighted to the committee, there are no steps which can be taken by the Joint Committee or the Advisory Committee – the only bodies likely to be providing any form of oversight or monitoring of the arrangement – in the event that there is any breach of the arrangement.
4.4 The committee is not satisfied with assertions made by the Department that 'a number of the arrangements and understandings that Australia has entered into are not in fact legally binding',2 and that '[i]t is not in the interest of either government that the arrangement not be successfully implemented' because both governments entered into the arrangement in good faith with the intention of meeting their respective commitments.3 The arrangement itself needs to include sufficient, binding and enforceable safeguards. A clause providing for the resolution of differences ('to be resolved as soon as reasonably practicable by consultation between the parties') – which is apparently how the Australian Government envisages breaches by Malaysia will be addressed – is simply not adequate.
1 See clauses 8 and 10 of the Arrangement. 2 Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 41. 3 DIAC, response to question on notice 32, received 30 September 2011.
Page 42 Malaysia is not a party to the Refugee Convention
4.5 In terms of selecting Malaysia as the location to process the protection claims of the 800 Transferees, the Australian Government has completely ignored that Malaysia is not a party to the Refugee Convention.
4.6 The committee accepts the advice of the Department that it is a 'long understood position' that the Refugee Convention does not confer upon asylum seekers a right to 'demand' that the particular contracting state in which they arrive must process their claim and, if upheld, grant them a right to re-settle.4 However, at a minimum, the Australian Government should meet the Prime Minister's previous commitment to 'rule out' sending asylum seekers who travel to Australia by boat to countries which are not a signatory to the Refugee Convention.5.
Pre-transfer arrangements
4.7 The Department placed significant emphasis on the pre-removal assessment in terms of ensuring: the non-refoulement of a potential Transferee where that person fears persecution in Malaysia; the identification of vulnerabilities and heightened risks, particularly focusing on unaccompanied children; and 6 confirming fitness to travel.
4.8 The Department noted in its supplementary submission that 'pre- removal/transfer guidelines' (Pre-removal Guidelines) have been developed.7 However, for reasons which are not apparent to the committee, the Pre-Removal Guidelines were not been included in the arrangement. Further, the Department did not see fit to provide a copy of the Pre-removal Guidelines to the committee as part of its submission, nor was the Department able to provide a copy at the hearing to enable the committee to consider the document during the course of the hearing.8 In the committee's view, given the importance of the procedures set out in the Pre-removal
4 Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p. 34. 5 Transcript of Interview with Howard Sattler, Radio 6PR, 8 July 2010, available at: http://www.pm.gov.au/press-office/transcript-interview-howard-sattler (accessed 26 September 2011). 6 Submission 31, p. 12; Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, pp 34-35. According to the Department, the assessment will take into account 'any issues raised by a potential transferee, general country information and safeguards within the Arrangement...' p. 12. See further Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 42, noting that the screening will also be 'undertaken in relation to character- and security-type issues'. 7 Supplementary Submission 31, p. 2. 8 See Committee Hansard, 23 September 2011, pp 49, 52-53 and 55.
Page 43 Guidelines, this document should have been provided to the committee as soon as possible after the hearing. Instead, the document was not provided to the committee until a week after the hearing, as part of the Department's responses to questions taken on notice.9
4.9 The committee also notes that the Commonwealth and Immigration Ombudsman has requested a copy of the Pre-removal Guidelines and has not been provided with a copy, even though the Ombudsman's request was made more than a month ago.10 The Department's reluctance to provide the Pre-removal Guidelines to the Ombudsman comes in spite of the fact that the Ombudsman's office has a statutory responsibility for work in this area.11
4.10 In the absence of the Pre-removal Guidelines being available to the committee at the hearing, members of the committee were forced to spend considerable time questioning officers of the Department to determine the processes provided for in the document, and how pre-removal assessments would apply in specific scenarios.12
Conditions in Malaysia
4.11 According to the Malaysian Arrangement, Malaysia is obligated to treat the Transferees with 'dignity and respect and in accordance with human rights standards'.13 Further, pursuant to the Operational Guidelines, 'Transferees will enjoy an adequate standard of treatment, including having access to the same support as other asylum seekers and refugees in the community'.14
4.12 Aside from the obvious issue that, due to the non-binding nature of the arrangement, the Australian Government has no way of ensuring that these standards
9 Pre-Removal Assessment Process for Transfers to a Third County for Processing, provided by DIAC as an attachment to its response to question on notice 20. 10 See Supplementary Submission 29, p. 1. 11 Committee Hansard, 23 September 2011, p. 10. However, the committee notes advice from the Department that the Ombudsman withdrew the request for the guidelines in light of the High Court case and instead requested a (second) briefing by the Department. On 22 September 2011, the Department offered to provide a (further) briefing to the Ombudsman: DIAC, response to question on notice 35, received 30 September 2011. 12 See Committee Hansard, 23 September 2011, pp 42-43. The committee was told that pregnant women and sick children would be transferred if appropriate medical assistance were in place, but 'it would depend on the circumstances'; a diagnosis of tuberculosis would prevent a person from being transferred because the person would not be fit to travel by plane; a person with an adverse security assessment from the Australian Security Intelligence Organisation would not necessarily be prevented from being transferred (although a person whose name appears on a Malaysian prohibited immigrants, terrorism, or international wanted list would not be transferred, according to Item 1.1.2(b) of the Operational Guidelines); and a person who could credibly claim fear of persecution in Malaysia would not be transferred. 13 See clause 8(1) of the arrangement. 14 Item 3.0 of the Operational Guidelines.
Page 44 of treatment are upheld in Malaysia, the committee has a number of other concerns regarding the treatment of the asylum seekers transferred to Malaysia.
4.13 Conditions for refugees and asylum seekers in Malaysia are nothing short of appalling with harassment and violence part of the refugee community's daily experience, and the threat of arrest a constant.15 In particular, the committee is gravely concerned at the past involvement of RELA, the volunteer citizens' police force, in immigration matters, particularly in light of RELA's well-documented history of extortion, intimidation, harassment and abuse of asylum seekers and refugees.
4.14 The committee is somewhat encouraged by evidence from the UNHCR that 'the activities of RELA have been scaled back and that the Malaysian Government is involved in a significant initiative (6P Programme) to regularise the legal status of all illegal migrants'. Further: Many persons of concern to UNHCR stand to benefit from this Programme by having their status regularised. It would mean all refugees in Malaysia would, in addition to their registration and ID documents for UNHCR, be registered within the Government's immigration data base and thus protected from arbitrary arrest and detention. It would also mean that all refugees in Malaysia would have the right to work on a par with legal migrants in the country. This would also entitle them to the same insurance and health schemes as documented, legal migrant workers… For present purposes, the Arrangements would have involved a legal status (and documentation proof) for transferees and this, subject to adequate monitoring and other safeguards, would have served as a significant safeguard against any exposure to RELA or arbitrary arrest.16
4.15 The committee also notes the Department's advice that 'RELA are not responsible for in any way imprisoning or incarcerating these people in Malaysia'; and that the Undersecretary International Division, Malaysian Ministry of Home Affairs indicated during the course of negotiations on the Malaysian Arrangement that 'RELA are no longer involved in immigration matters', instead 'now focussing on a new direction for the agency'.17
4.16 However, it is unclear what this 'new direction' is and the committee is of the view that RELA's continuing involvement in the enforcement of immigration matters is possible, particularly given that it is unknown how many RELA there actually are in Malaysia. In May 2007, Human Rights Watch reported that the Malaysian Government had authorised 'almost half a million RELA volunteers to help maintain
15 See Mr Paul Power, Refugee Council of Australia, Committee Hansard, 23 September 2011, p. 2. 16 UNHCR, response to question on notice, received 30 September 2011, p. 3. 17 See Mr Stephen Allen and Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 44; DIAC, response to question on notice 15, received 30 September 2011.
Page 45 public order'.18 In August 2010, Amnesty International noted that RELA aimed to expand its membership from 1.6 million to 2.6 million by the end of 2010.19 Such figures are extraordinary and the committee considers that it would be extremely difficult, if not impossible, to regulate or control all aspects of RELA's activities.
4.17 The risk to refugees and asylum seekers of being caned in Malaysia is also a serious concern for the committee. The committee appreciates the advice of the Department that the exemption granted under Malaysian immigration laws to the 800 Transferees means that they will not have committed an offence, and therefore will not be subject to caning, in relation to entering Malaysia without appropriate documentation.20
4.18 However, as Amnesty has pointed out, caning is not only used for immigration offences, it is a supplementary punishment for approximately 40 other crimes.21 On the risks to Transferees of being punished by caning for non-immigration related offences, a departmental representative told the committee: As per normal for anyone who goes to a country like Malaysia, or to the US or wherever, if you commit an offence you will be subject to their criminal laws.22
4.19 In response to concerns raised during the inquiry about the treatment of asylum seekers in Malaysia, another representative from the Department told the committee: Australia does not accept that it has a legal obligation that persons outside our territory have to be accorded with the same standards of treatment in all respects as they would have received had they remained in Australia. In the case of transfers to countries for processing outside Australia, we have, however, accepted a moral obligation to ensure that such people are accorded reasonable standards of treatment.23
4.20 In the committee's view, if the transfer of asylum seekers to Malaysia proceeds then the Australian Government will have failed dismally in fulfilling any
18 See Human Rights Watch, 'Malaysia: Disband Abusive Volunteer Corps', 9 May 2007, available at: http://www.hrw.org/en/news/2007/05/08/malaysia-disband-abusive-volunteer- corps (accessed 30 September 2011). 19 See Amnesty International, 'Malaysia should halt expansion of security force accused of abuses', 20 August 2010, available at: http://www.amnesty.org.au/news/comments/23562/ (accessed 30 September 2011). 20 Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 50. 21 See Amnesty International, 'Abused and Abandoned: refugees denied rights in Malaysia', June 2010, p. 15, available at: http://www.amnesty.org.au/images/uploads/ref/abused_and_abandoned- refugees_denied_rights_in_malaysia.pdf (accessed 30 September 2011). 22 Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 50. 23 Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p. 35.
Page 46 so-called 'moral obligation'. Further, it is astonishing that the Department 'is satisfied with assurances provided by the Malaysian [G]overnment' that caning will not occur, at least partly on the basis that the arrangement was 'negotiated in good faith and freely entered into by Malaysia'.24
Identification of the 800 Transferees
4.21 In relation to the ability of the 800 Transferees to be identified in Malaysia as subject to the Malaysian Arrangement, the Department detailed the operation of the Nexcode (Foreign Identification) label which will be affixed to the identification cards of individuals.25 However, the Department made several significant concessions in relation to the operation of the card. First, the Department was unable to give the committee any assurances in relation to the safeguards built into the card to ensure the security of the document system. Instead the Department referred to measures such as 'special printing, design and laminar surfaces that are put over the top of the card that reflect in certain kinds of light' and concluded, on the basis of these measures, that it was 'satisfied that there are reasonable safeguards in place to protect the use of the card'.26
4.22 Second, the Department indicated that, despite the emphasis placed on the presence of the Nexcode sticker on the card for identification purposes, only 'normal Malaysian law enforcement and immigration authorities' will have access to the card readers necessary to read the Nexcode sticker. The Department then went on to advise that 'this has been structured such that you do not actually need a card reader to identify the person as being subject to the Arrangement'.27 It is therefore not clear to the committee why the Department has placed such an emphasis on the Nexcode sticker as a means of identifying the 800 individuals who are subject to the arrangement, if the card reader for the sticker is not readily available, nor in fact necessary.
4.23 In the committee's view, the identification card and Nexcode sticker measures are manifestly inadequate to ensure the identification of the 800 individuals that are being transferred to Malaysia and to guarantee the standard of treatment which they are to be accorded under the arrangement. This is particularly the case given the evidence that the committee received as to the disregard which is shown for refugees in Malaysia who have managed to be granted a UN registration card.
24 DIAC, answer to question on notice 25, received 30 September 2011. 25 See Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011, pp 43-44. 26 Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011, pp 46-47 27 Mr Stephen Allen, DIAC, Committee Hansard, 23 September 2011, p. 44.
Page 47 Unaccompanied minors
4.24 In the committee's view, the provisions made under the Malaysian Arrangement with respect to unaccompanied children are completely unacceptable.
4.25 Specific provision needs to be made for unaccompanied minors to have representation with respect to their legal rights during any pre-removal interview. The committee does not take any comfort in the fact that unaccompanied children will be accompanied at interview by an 'independent observer'.28 Nowhere in the list of roles fulfilled by the independent observer will that person be required to advocate for the legal rights of the child. That is the role of the child's legal guardian and, in the committee's view, it is necessary that a person representing the child's legal interests be present at the interview.
4.26 Further, explicit provision needs to be made for the transfer of guardianship of children in Malaysia. The Australian Government simply cannot rely on an expectation that an official of the Malaysian Government will become the guardian to unaccompanied children. To send unaccompanied minors to Malaysia without making detailed provision for their guardianship on arrival is a dereliction in the Minister's duty as legal guardian of these children.
Recommendation 1 4.27 The committee recommends that the Australian Government not proceed with the implementation of the Arrangement between the Government of Australia and the Government of Malaysia on transfer and resettlement, due to the obvious flaws and defects in that arrangement.
Senator Gary Humphries Chair
28 DIAC, Submission 31, p. 14.
DISSENTING REPORT BY GOVERNMENT SENATORS
1.1 Government Senators strongly disagree with the views presented in the committee's majority report, and do not support the majority report's recommendation. Government Senators believe that the Malaysian Arrangement is essential to combat the irregular movement of asylum seekers within the Asia-Pacific region. Fundamentally, and most importantly, the arrangement is designed to break the people smugglers' business model and deter people from taking the dangerous voyage to Australia by sea. The very strong message that the Malaysian Arrangement sends is 'do not get on that boat because you will not be processed and resettled in Australia'.
1.2 The Malaysian Arrangement delivers an innovative regional solution to what is clearly a significant regional problem. Government Senators note that the announcement of the arrangement had a strong deterrent effect, immediately discouraging people from making the dangerous sea journey to Australia. The timely implementation of the Malaysian Arrangement will further strengthen the message that people should not risk their lives coming to Australia in this way.
Importance of regional cooperation
1.3 Australia is not alone in facing problems of irregular migration, people smuggling and substantial increases in the number of people seeking asylum. Accordingly, Australia cannot act in isolation to address these problems.
1.4 Against this background, the establishment of the Regional Cooperation Framework, at the fourth Ministerial Conference of the Bali Process on People Smuggling, Trafficking in Persons and Related Transnational Crime on 30 March 2011, is an important development. The Regional Cooperation Framework, which has broad bipartisan and international support, is based on the concept of responsibility-sharing and cooperation between source, transit and destination countries. It lays the foundation for the implementation of practical bilateral and sub- regional arrangements that will contribute to a sustainable regional response.1
1.5 The Malaysian Arrangement is an important element of the Regional Cooperation Framework: it provides a strong signal to people smugglers, and their potential clients, that the Australian Government will determine its asylum priorities in an orderly manner, with priority being given under its Humanitarian Program to people in greatest need.
1.6 As the Department of Immigration and Citizenship (Department) outlined in its submission, Asia-Pacific region countries such as Thailand, Malaysia and Indonesia host large numbers of refugees and asylum seekers. Such countries permit
1 Department of Immigration and Citizenship (DIAC), Submission 31, p. 3.
Page 50 the UNHCR to access those individuals, even though the countries are not parties to the Refugee Convention.2 Genuine commitment to regional cooperation requires that Australia engage with countries who are not signatories to the Refugee Convention, but which host most of the refugees in the region.
1.7 Australia has made clear commitments to increase its share of the 'humanitarian burden' in the region, and the Malaysian Arrangement will facilitate those commitments by significantly increasing Australia's refugee intake by 4,000 over the next four years.
Deterrent effect of the Malaysian Arrangement
1.8 Within the Asia-Pacific region, Australia faces a particular challenge with respect to the secondary movement of asylum seekers – that is, people moving irregularly from a place of initial protection to Australia in the hopes of having their asylum claims assessed quickly in a more hospitable environment, and ultimately attaining settlement in Australia.
1.9 The arrangement with Malaysia provides a real and substantial disincentive to people, once they have reached a place of initial protection, from making the dangerous onward journey by sea to Australia. As the Minister for Immigration and Citizenship has explained: …[S]ending people back to where they started the boat journey does work. The best disincentive is for people considering that journey to know that it is all for nought, that they will be out of pocket and that they will be risking their lives, only to wind up back where they started, which is overwhelmingly Malaysia.... The deal negotiated with Malaysia provides a genuinely effective plan to remove the product people-smugglers are selling – a ticket to Australia – by virtually turning back the boats, but in a safe and orderly fashion... The message that it sends is that if you take the boat journey to Australia then you'll be returned by plane to Malaysia and be processed in the mix of more than 90,000 others.3
1.10 The Department's submission to the inquiry also emphasised the deterrent effect of the Malaysian Arrangement: Early indications suggested that, prior to the decision of the High Court of Australia on 31 August 2011, the prospect of the Arrangement and the Arrangement itself had already acted in some part as a deterrent to irregular movement. The second-lowest number of irregular maritime arrivals (IMAs) since August 2009 was recorded in June 2011, the month following the joint announcement of the proposed Arrangement by the Prime
2 Submission 31, p. 3. 3 The Hon Chris Bowen MP, Minister for Immigration and Citizenship, 'Safest way to stop the boats', The Australian, 16 September 2011, p. 12.
Page 51 Ministers of Australia and Malaysia. This is assessed as reflecting concern among people smugglers and a reluctance among potential IMAs to travel, as a result of the game changing nature of the announcement. A return to onshore processing would likely result in increased and sustained levels of IMAs.4
1.11 Nauru, the Coalition's preferred location for offshore processing of asylum seeker claims, has no such deterrent effect. People smugglers know that if asylum seekers are sent to Nauru and are found to be refugees, they will be resettled in Australia. As the Minister has observed: The best advice and intelligence we have – which the government has shared with Abbott – clearly shows that people-smugglers now know that if asylum-seekers are sent to Nauru and are found to be refugees, they will be resettled in Australia. That is not an effective deterrent.5
Protection for asylum seekers
1.12 The Joint Prime Ministerial Statement of 7 May 2011 clearly states that Transferees to Malaysia will be treated with dignity and respect, and in accordance with human rights standards. This commitment is also plainly expressed in clause 8(1) of the Malaysian Arrangement.
1.13 In contrast to the Malaysian Arrangement, the Coalition has continued to advocate a policy of towing back boats to Indonesia. The strategy to 'tow back the boats' highlights the Coalition's policy incoherence – there has been absolutely no indication of what, if any, protections Indonesia would extend to asylum seekers who are towed back to that country. Despite this gaping hole in its policy, the Coalition continues to insist that the groundbreaking protections negotiated for Transferees under the Malaysian Arrangement are inadequate.
International law obligations
1.14 The majority report's dismissal of the commitments made by the Malaysian Government to implement its human rights obligations under the arrangement is disappointing. Specifically, the majority report has failed to recognise the involvement that the UNHCR has had in the development of the arrangement.
1.15 The Malaysian Arrangement is consistent with the Australian Government's obligations under the Refugee Convention, and other international treaties. As an officer of the Department of Immigration and Citizenship explained to the committee: Successive governments have taken the view that Australia will be acting consistently with international law and accepted practice, so long as it is satisfied that asylum seekers removed to another country will not be
4 Submission 31, p. 5. 5 The Hon Chris Bowen MP, Minister for Immigration and Citizenship, 'Safest way to stop the boats', The Australian, 16 September 2011, p. 12.
Page 52 refouled, and that they will be given an opportunity to have their status determined in that country. The Malaysian Government has undertaken to respect the principle of non-refoulement, and to permit transferees to Malaysia to have their asylum claims assessed by UNHCR. ... In terms of any claim a potential transferee may have made against Malaysia itself, this claim and any other non-refoulement obligations were to be assessed in the pre-removal assessment of the individual's circumstances...6
1.16 The Department also indicated that in relation to children, a 'best interests of the child' assessment would also be undertaken in the preremoval assessment process, thus meeting Australia's obligations under the Convention on the Rights of the Child.7
1.17 The Department explained the following aspects of the arrangement, which mean that Australia is complying with its international law obligations: Where a person is determined not to be a refugee, Australia will be given the opportunity to undertake an assessment against other non-refoulement obligations before the person is removed from Malaysia. With regards to article 31 (no penalty) of the Refugee Convention, nothing in the convention prevents a different regime being in place for offshore entry persons, providing the scheme does not involve the imposition of a penalty on account of unauthorised entry. The Australian Government maintains that offshore processing does not amount to a penalty within the terms of article 31. In addition, article 31 applies to refugees coming directly from the place of feared persecution, not to those involved in secondary movement. In relation to article 3 (non-discrimination), the discrimination referred to is discrimination based on race, religion or country of origin. The different treatment accorded to offshore entry persons has nothing to do with the race, religion or country of origin of these persons.8
1.18 Further, Government Senators note the Department's clarification in relation to protection obligations under the Refugee Convention: Many commentators conflate the obligations that the refugee convention sets out as owed to with those that are owed to asylum seekers. The convention allocates rights or protections to refugees in categories based on the type of immigration status a person has in the host state. The categories include physical presence, lawful presence, lawful stay and residence. So, for example, rights or protections concerning employment, housing and social security are restricted to refugees lawfully staying in a state's territory
6 Dr Wendy Southern, DIAC, Committee Hansard, pp 34-35. 7 Dr Wendy Southern, DIAC, Committee Hansard, p. 35. 8 Dr Wendy Southern, DIAC, Committee Hansard, p. 35.
Page 53 not to asylum seekers whose claims have not been assessed and whose status has not been regularised. The arrangement with Malaysia also provides for decent standards of treatment for transferees, with Malaysia undertaking to treat them with dignity and respect and in accordance with human rights standards...Australia does not accept that it has a legal obligation that persons outside our territory have to be accorded with the same standards of treatment in all respects as they would have received had they remained in Australia. In the case of transfers to countries for processing outside Australia, we have, however, accepted a moral obligation to ensure that such people are accorded reasonable standards of treatment.9
1.19 Government Senators also acknowledge the following statement by the Prime Minister, the Hon Julia Gillard MP: [The Australian Government is] now in a position to say refugee convention obligations—most important of all, the obligation of non- refoulement, of making sure that people are not returned to a place of persecution—can be achieved in Malaysia. In addition to that we can see in Malaysia the processing of claims and we can see people's humanitarian needs dealt with.10
Commitments by Malaysia
1.20 The Malaysian Government has demonstrated a strong commitment to its human rights obligations under the Malaysian Arrangement. As the Prime Minister has explained: [These] are the obligations that Malaysia has freely entered into in this arrangement between us. The Malaysian government has done this freely. The Malaysian government has done it freely because it stands ready to implement it.11
1.21 The Malaysian Government's commitment to the arrangement was also highlighted by an officer of the Department at the hearing: ...[T]he fact that the Malaysian government was willing to sit down and negotiate with us over a number of weeks, and there were practical arrangements that they were actually putting in place to ensure that the terms of the arrangement were going to be met, is an indication that they had every intention of meeting the commitments that had been made in the
9 Dr Wendy Southern, DIAC, Committee Hansard, 23 September 2011, p. 35. 10 The Hon Julia Gillard MP, Prime Minister of Australia, House of Representatives Hansard, 19 September 2011, p. 54. 11 The Hon Julia Gillard MP, Prime Minister of Australia, House of Representatives Hansard, 19 September 2011, p. 57.
Page 54 arrangement. The fact that a minister of state also signed the arrangement is...a strong commitment from the government.12
1.22 Government Senators are particularly concerned at the tone of hysteria surrounding the majority report's discussion about caning in Malaysia. Since asylum seekers transferred to Malaysia pursuant to the arrangement will not be illegal migrants, they will be exempted under section 55 of the Malaysian Immigration Act.13 This means that Transferees under the arrangement will have entered Malaysia legally, will not have committed any immigration offence under Malaysian domestic law, and will not be subject to caning.
1.23 Further, Malaysia's commitment to treating asylum seekers transferred from Australia in line with human rights standards clearly means that such persons will not be caned. As the Department advised: The Department is satisfied with the assurances provided by the Malaysian government [with respect to caning]. The Arrangement was negotiated in good faith and freely entered into by Malaysia. Malaysian Minister for Home Affairs Hishammuddin has stated publicly that Malaysia would ensure those protections outlined in the Arrangement were upheld.14
Involvement of UNHCR
1.24 Government Senators believe that the majority report fails to acknowledge the role of the UNHCR in the negotiations towards, and implementation of, the Malaysian Arrangement. The UNHCR has been closely consulted on the arrangement and its associated Operational Guidelines, and provided constructive comments which helped to shape the final wording of the arrangement.15
1.25 In its submission to the committee, the UNHCR indicated its support for the Malaysian Arrangement, noting that it 'responds to the particular domestic and regional context of the asylum and migration situation in the Asia-Pacific region'.16 Further: ...UNHCR is appreciative of the efforts made by the two parties to provide fundamental protection safeguards for transferees, notably: respect for the principle of non-refoulement, the right to asylum, the principle of family unity and best interests of the child, humane reception conditions, including protection against arbitrary detention, and the realization of durable solutions.17
12 Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 42. 13 See Ms Vicki Parker, DIAC, Committee Hansard, 23 September 2011, p. 50. 14 DIAC, response to question on notice 25, received 30 September 2011. 15 DIAC, Submission 31, p. 11. 16 Submission 7, p. 1. 17 Submission 7, p. 1.
Page 55 1.26 As the UNHCR informed the committee: UNHCR was neither called upon, nor would it have been appropriate, to 'endorse' or otherwise formally sanction the Arrangements. There is nothing unusual about this and no inference can reasonably be drawn from this. Under Article 8 of its founding Statute UNHCR is mandated to promote and advocate for measures that improve the situation for refugees which, in this instance, it has steadfastly done through its advice to both parties.18
1.27 Government Senators acknowledge that the UNHCR's position 'is and remains conditioned upon proper protection and vulnerability safeguards determining the pre- transfer/pre-removal assessment process in Australia'.19 The Australian Government has put these protections in place through the procedures set out in the document 'Pre- removal Assessment Process for Transfers to a Third Country'.20
1.28 Government Senators also note that under the Arrangement, the Australian Government will provide funding to the UNHCR to undertake a range of support activities. This funding will assist asylum seekers and refugees more generally in Malaysia while they are processed and await a durable solution. Some of the activities that will be funded include community capacity building, enhancement of UNHCR identity cards, and improvements to basic health care and emergency health support.21
1.29 The committee heard from many submitters with strong opinions on, but no direct involvement with, the Malaysian Arrangement. The UNHCR has direct involvement with, and knowledge of, the arrangement and is, in the view of Government Senators, best able to offer a considered and expert opinion. In contrast, the Commonwealth and Immigration Ombudsman conceded that his office does 'not purport to have any knowledge of administration in Malaysia' and 'no specific technical or legal knowledge of procedures in Malaysia'.22 Further, the Ombudsman's initial submission to the inquiry contained substantial errors of fact, which he was subsequently required to correct.23 Given that the Ombudsman's role includes oversight of immigration detention and refugee assessment, such errors are simply unacceptable. Government Senators suggest that, in future, the Ombudsman ensure his information is correct before making comments such as these on the public record.
18 Response to questions on notice, received 30 September 2011, p. 5. 19 Submission 7, p. 1. 20 See further DIAC, response to question on notice 20, received 30 September 2011. 21 DIAC, Submission 31, p. 9. 22 Mr Allan Asher, Commonwealth and Immigration Ombudsman, Committee Hansard, 23 September 2011, p. 7. 23 Commonwealth and Immigration Ombudsman, Supplementary Submission 29.
Page 56 Proposed amendments to the Migration Act
1.30 In conclusion, Government Senators note the importance of ensuring that the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 passes the Parliament as a matter of urgency, in order to facilitate the implementation of the Malaysian Arrangement. In that context, Government Senators point out that the Coalition's proposed amendment to the Bill to allow transfers of asylum seekers to Refugee Convention countries only would have precluded any transfers to Nauru, if moved in 2001.
Recommendation 1 1.31 Government Senators recommend that the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 be passed by the Parliament as a matter of urgency, in order to facilitate the implementation of the Malaysian Arrangement.
Senator Trish Crossin Senator Mark Furner Deputy Chair
Senator Alex Gallacher
ADDITIONAL COMMENTS BY SENATOR SARAH HANSON-YOUNG Background
1.1 On 7 May 2011, the Minister for Immigration announced that the Australian Government had reached an asylum seeker deal with Malaysia. Despite not being a signatory to the United Nations Convention on the Status of Refugees, the Government maintained that it was satisfied that the rights of the 800 asylum seekers exported to Malaysia would be upheld.
1.2 Aside from the Australian Greens being fundamentally opposed to any agreement that would see Australia shirking its international obligations, this deal was struck with a country that is not even a signatory to the Refugee Convention, could not guarantee the human rights of any asylum seeker sent there, and dramatically undermined genuine attempts to establish a true regional protection framework.
1.3 From all the evidence provided to this inquiry, and from the key experts and stakeholders in the community, this deal does nothing to address the real problems facing asylum seekers throughout our region, rather it punishes the vulnerable men, women and children who have fled desperate circumstances seeking our protection.
1.4 More than 15 Australian refugee groups recently issued a joint statement condemning federal political leaders for arguing asylum seeker policy was a choice between reopening Nauru or a new detention centre in Malaysia. These groups, like the Australian Greens, condemn that policy, arguing neither is acceptable. The groups also said: "The question Australian and international policy makers should focus on is not how to stop the boats but how refugees in Asia-Pacific can receive effective protection."1
1.5 Despite the High Court ruling that the Malaysia deal was unlawful, on 12 September 2011, the Prime Minister, and Minister for Immigration and Citizenship, the Hon. Chris Bowen MP, announced their intention to circumvent the High Court's ruling, and introduce legislative amendments to allow offshore processing of asylum seekers.
Key concerns with the agreement
Cannot guarantee rights
1.6 In order to lawfully transfer asylum seekers to another country, Australia must ensure that its obligations under the Refugee Convention will be fulfilled in that country. Given Malaysia is not a party to the Refugee Convention, nor has it
1 http://www.refugeecouncil.org.au/resources/statements/110606_JS_Nauru_Malaysia.pdf.
Page 58 indicated its willingness to sign; it does not contain any provisions in domestic law for the protection of refugees. A non-legally binding document, based on good faith, is not sufficient, when the transfer country in question, has an appalling human rights record when dealing with the more than 90,000 asylum seekers and refugees currently awaiting assessment and resettlement.
1.7 The fact that this agreement would also include children, unaccompanied minors (to whom the Minister for Immigration has a legal responsibility), and pregnant women, gives cause to further concern about the ability to guarantee the rights of anyone transferred to Malaysia.
Undermines Australia's international obligations
1.8 Under international law, all asylum seekers who arrive in Australia, regardless of mode of arrival, must have their claims for protection assessed and if found to be genuine refugees, offered protection. This deal effectively undermines the fundamental human right to seek asylum.
1.9 Malaysia is not a signatory to the United Nations (UN) Refugee Convention or Protocol, nor is it party to many other human rights treaties, including the Convention Against Torture. In a submission to the inquiry, the Australian Refugee Law Academics argued that, "as a matter of international law, in order to rely on another country's refugee protection mechanisms, that country must respect the rights of refugees and asylum seekers in practice."2
Undermines genuine leadership towards a regional protection framework
1.10 While the Government has claimed this agreement is part of the broader regional framework to deal with asylum seekers, this deal does nothing of the sort.
1.11 This deal is nothing more than a political quick fix driven by domestic considerations, rather than a genuine commitment working collaboratively within the region. While no one wants to see asylum seekers risk their lives on the treacherous seas in the hope of reaching Australian shores, simply punishing these vulnerable people, without offering a true solution, has shown that the Government is not interested in putting in the hard yards to work towards a long-term sustainable protection framework.
1.12 This policy will not stem the boats. Asylum seekers will continue to make dangerous journeys because they are desperate. A political quick fix will not make the issue go away.
1.13 Instead of looking for quick-fix 'solutions', what the Government should be doing is increasing the humanitarian intake, with a targeted resettlement from within our immediate region.
2 Australian Refugee Law Academics, Submission No. 25 http://www.aph.gov.au/senate/committee/legcon_ctte/malaysia_agreement/submissions.htm.
Page 59 Recommendation 1 1.14 The Australian Greens recommend that the deal with Malaysia, and any other third country, should be rejected.
Recommendation 2 1.15 The Australian Greens recommend that the Government heed the advice of the High Court, and return to onshore processing of asylum seekers' claims, which is simpler, cheaper, more humane and supported by the Australian public.
Recommendation 3 1.16 The Australian Greens recommend that any attempt to amend the Migration Act to circumvent the High Court's ruling that found the Minister's declaration of Malaysia under section 198A of the Migration Act to be invalid, should be rejected. Recommendation 4 1.17 The Australian Greens recommend that the Australian Government honour the commitment to resettle an additional 4,000 UNHCR-assessed refugees directly from Malaysia. Recommendation 5 1.18 The Australian Greens recommend that the humanitarian intake is increased from 14,750 to between 20,000 and 25,000 with a targeted resettlement from Australia's immediate region, including Malaysia and Indonesia.
Senator Sarah Hanson-Young Australian Greens' Spokesperson for Immigration
APPENDIX 1 SUBMISSIONS RECEIVED
Submission Number Submitter 1 Mr Joe Mithiran 2 Human Rights Watch 3 United Nations Association of Australia 4 International Commission of Jurists (Australia) 5 ACT Refugee Action Committee 6 Anti-Discrimination Board of NSW 7 United Nations High Commission for Refugees 8 Ethnic Communities' Council of Victoria 9 Mr Chris Baulman 10 Office of the Commissioner for Equal Opportunity, South Australia 11 Coalition for Asylum Seekers, Refugees and Detainees 12 Refugee Action Network Newcastle 13 Amnesty International Australia 14 UnitingJustice Australia 15 Liberty Victoria 16 Canberra Multicultural Community Forum 17 Refugee Council of Australia 18 Australian Human Rights Commission 19 Mr Andrew Bartlett and Ms Marianne van Galen-Dickie 20 Darwin Asylum Seeker Support and Advocacy Network 21 Castan Centre for Human Rights Law 22 Australian Lawyers Alliance 23 Law Society of NSW 24 Law Council of Australia 25 Australian Refugee Law Academics 26 ACT Government 27 New South Wales Council for Civil Liberties 28 Australian Lawyers for Human Rights
Page 62 29 Commonwealth and Immigration Ombudsman 30 Early Childhood Australia 31 Department of Immigration and Citizenship 32 Confidential 33 Queensland Council for Civil Liberties 34 Dr Harvey Stern 35 Western Australian Equal Opportunity Commission 36 National Ethnic and Multicultural Broadcasters' Council 37 Oxfam Australia
Page 63 ADDITIONAL INFORMATION RECEIVED
1 Response to questions on notice provided by the Refugee Council of Australia on 27 September 2011
2 Response to questions on notice provided by Professor Ben Saul on 28 September 2011
3 Response to questions on notice provided by Ms Marianne van Galen Dickie and Mr Andrew Bartlett on 28 September 2011
4 Response to questions on notice provided by the Australian Human Rights Commission on 29 September 2011
5 Response to questions on notice provided by DIAC on 30 September 2011
6 Response to questions on notice provided by the Commonwealth Ombudsman on 30 September 2011
7 Response to questions on notice provided by UNHCR on 30 September 2011
APPENDIX 2 WITNESSES WHO APPEARED BEFORE THE COMMITTEE
Canberra, 23 September 2011 ALLEN, Mr Stephen, First Assistant Secretary, Offshore Initiatives, Department of Immigration and Citizenship ANDERSON, Mr Rohan, Director of Immigration Complaints, Office of the Commonwealth Ombudsman ASHER, Mr Allan, Commonwealth and Immigration Ombudsman BARTLETT, Mr Andrew, Research Fellow, Migration Law Program, College of Law, Australian National University BURNSIDE, Mr Julian AO QC, Policy Committee, Liberty Victoria DOWD, the Hon John AO QC, President, International Commission of Jurists (Australia) FLEMING, Mr Garry, First Assistant Secretary, Border Security, Refugee and International Policy Division, Department of Immigration and Citizenship
McADAM, Professor Jane, Faculty of Law, University of New South Wales PARKER, Ms Vicki, Principal Adviser, Border and Humanitarian Strategies, Department of Immigration and Citizenship POWER, Mr Paul, Chief Executive Officer, Refugee Council of Australia SAUL, Professor Ben, Faculty of Law, University of Sydney SOUTHERN, Dr Wendy, Deputy Secretary, Policy and Program Management Group, Department of Immigration and Citizenship van GALEN-DICKIE, Ms Marianne, Sub Dean, Migration Law Program, College of Law, Australian National University WALSH, Mr Rodney, Senior Assistant Ombudsman, Office of the Commonwealth Ombudsman WATSON, Dr Judyth, Executive Secretary, Coalition for Asylum Seekers, Refugees and Detainees