A recent decision by Australia's high court to stop its federal government from swapping refugees with Malaysia underlines what has fast become a major debate over how to treat Asia's refugees.
The Canberra government signed a deal with Malaysia in July to exchange the next 800 refugees it would receive by boat for 4,000 refugees, mostly Burmese, in Malaysia. Typically, the people going to Australia are from Asia and the Middle East, including Afghanistan, Sri Lanka, Iran and Iraq.
The court, ruling by six to one, said the proposal was invalid because of shortcomings in Malaysia's treatment of refugees. Unlike Australia, Malaysia is not a signatory to the UN Refugee Convention and therefore does not officially grant protected status to those fleeing persecution.
For the Australian government to send refugees to another country, that destination, the court said in its ruling, "must be legally bound by international law or its own domestic law to: provide access for asylum seekers to effective procedures for assessing their need for protection; provide protection for asylum seekers pending determination of their refugee status; and provide protection for persons given refugee status pending their voluntary return to their country of origin or their resettlement in another country".
Malaysia, the court ruled, did not make this cut. To many human rights groups that fact was well established long before Canberra sought Malaysia as a refugee trading partner.
According to a report published in 2010 by Amnesty International, thousands of refugees in Malaysia are caned each year for violations, such as working, which is illegal for refugees under Malaysian law.
The report, Abused and Abandoned: Refugees Denied Rights in Malaysia, found that many refugees were held in unsanitary facilities and concluded that, for refugees, "Malaysia is an unwelcoming and dangerous place".
In its 2010 global report, the UN Refugee Agency (UNHCR) said its officials had that year secured the release of 3,800 refugees in Malaysia who had been rounded up and held in detention.
Given Malaysia's track record, Australia was "taking a huge risk" in proposing a refugee exchange with Malaysia, Gram Thom, a spokesman for Amnesty on refugee issues and author of the report, told IRIN. The deal, he added, would have been a "breach of Australia's international obligations".
Canberra had billed the deal as a way to deter refugees from making the dangerous journey to Australia by boat. In particular, the government said, denying boat refugees access to Australia would undermine the work of human traffickers - or "smash the people smugglers' business model", as Australian Prime Minister Julia Gillard put it.
"My message to anyone who is considering paying money to a people smuggler and risking their life at sea and perhaps the lives of their family members as well, is do not do that in the false hope that you will be able to have your claim processed in Australia," she said in July.
The government punctuated its intention to use the so-called Malaysian Solution as a deterrent to future would-be boat refugees by saying it would post footage on You Tube of refugees being carted off to Malaysia as a public message to people smugglers and the clients to whom they promise "a ticket to Australia".
At present, refugees who reach Australia by boat are first taken to Christmas Island, which is much closer to Indonesia than the mainland.
The Pacific Solution, in effect from 2001 to 2007, was Australia's previous policy of detaining and processing asylum seekers arriving by boat in offshore facilities, including the South Pacific island state of Nauru and Papua New Guinea's Manus Island.
After much criticism from rights groups, who argued the policy unfairly isolated boat refugees, the Pacific Solution was discontinued in 2007, with the election of former prime minister Kevin Rudd and a new regime.
But, since 2010, the Gillard government has sought to renew a similar offshore holding and processing system for boat refugees and introduced the prospect of swapping refugees with other countries in the region.
Last year, Gillard approached Timor-Leste about hosting a refugee holding centre but parliamentarians and rights groups lambasted the proposal, arguing that the country had too many of its own problems.
After the High Court's ruling against the Malaysia Solution on 31 August, Australia's immigration minister, Chris Bowen, said his government had not ruled out similar deals with other countries in the region if they received court approval.
Canberra has been in talks with Papua New Guinea and the Solomon Islands about hosting refugee processing centres that would first be administered by Australia and later collectively by the region. In August, Canberra signed a Memorandum of Understanding for the reopening of a new refugee processing centre on Manus Island.
"This MoU sends a clear message that countries in this region are working together towards a lasting regional response in taking action necessary to ensure the integrity of our borders and undermine people-smuggling networks," Minister Bowen is quoted as saying in a government press statement.
Rights groups are sceptical of the Australian government's motivations for wanting to reroute boat refugees to offshore locations.
The proposed swap with Malaysia and other similar deals amounted to "shovelling responsibility elsewhere", said Denise Coughlan, director of the NGO Jesuit Relief Service's office in Cambodia.
She said asylum seekers had borne the brunt of rising fears across the globe about terrorist infiltration, preventing many legitimate refugees from receiving the care they deserve.
Amnesty's Thom said it set a troubling precedent when one of the richest and most stable and developed countries in the region sought to turn away refugees. "If Australia shuts down this basic right, what's to stop Thailand from doing the same?"
Thom said Australia's proposals reflected a tendency for countries to assign different ranks to refugees depending on their country of origin - a tendency that he says ran contrary to the point of treating asylum seekers equally.
"Failure of political will"
This concern was echoed by Phil Robertson, deputy director of the Asia division of Human Rights Watch: "Picking one group of refugees over another defies the principle of non-discrimination which is at the heart of refugee protection.
"What we're seeing in the region is a fundamental failure of political will to undertake basic human rights obligations," he added.
A case in point, he said, was China's ability in recent years to pressure Cambodia, Malaysia and Thailand to forcibly send ethnic Uyghurs back to China, where rights groups say they face severe punishment - even death sentences - for any suspected involvement in protests.
Only three countries in Asia - Cambodia, Timor-Leste and the Philippines - are signatories to the UN Refugee Convention.
"In the year that the Refugee Convention marks its 60th year, the performance of the vast majority of Asia-Pacific governments towards refugees is absolutely shameful," said Robertson.
On 12 September, the Gillard government announced it would introduce legislation to parliament to amend the country's Migration Act, allowing the Malaysian refugee swap deal to go forward.
"Malaysia offered the best answer to the issue of asylum seekers and people smuggling then. It offers the best answer now," Gillard told reporters.
This article was produced by IRIN News while it was part of the United Nations Office for the Coordination of Humanitarian Affairs. Please send queries on copyright or liability to the UN. For more information: https://shop.un.org/rights-permissions
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