Letter for the Minister for Immigration and Citizenship, Australia on the Refugee Swap Deal

By August 24, 2011Press

The Honourable Chris Bowen
Minister for Immigration and Citizenship, Australia
PO Box 6022
House of Representatives
Parliament House
Canberra, ACT 2600                                                                                                                                          24 August 2011

Dear Minister,

The refugee swap agreement between Australia and Malaysia is of deep concern to us because it undermines existing legitimate mechanisms for international protection of people fleeing persecution, and, exacerbates the problem of shrinking protection space for refugees and asylum seekers worldwide, and in the Asia Pacific in particular.


We deeply regret that Australia has decided to proceed with the transfer of the newly arrived asylum seekers who are currently being detained on Christmas Island, even considering the use of force, in spite of the traumatic experiences endured by these people in their country of origin and during the perilous boat journey.


We strongly urge Australia to refrain from sending all children, including unaccompanied minors and children traveling with their families to Malaysia.

Refugee children have generally not been exempt from arrest and detention in Malaysian immigration detention centers, and are often detained with adults. A 17 year old girl who was held in detention for 15 days with her 13 year old sister, and was traumatized by the experience and brought to the mental health services of Health Equity Initiatives (HEI) in 2009, presented with prominent symptoms of Post Traumatic Stress Disorder (PTSD) and Depression including reliving the detention experience, poor appetite, intermittent insomnia, low mood, frequent headaches, fatigue, negative thoughts about herself, and a fear of uniformed personnel.

The “private education arrangements in the community” (Annex-A: Operational Guidelines to Support Transfers and Resettlement; 3.3(a)), that transferees will have access to includes ill equipped and understaffed schools run by underpaid volunteers most of the time.  Given that these schools are not officially registered, refugee children are unable to graduate with certification.

Asylum Seekers with Mental Health Problems

We also ask that vulnerability assessments including mental health assessments be done in Australia, and those with mental health problems not be sent to Malaysia, to prevent an exacerbation of their condition, given the various stressors they will need to endure.

The following items related to the arrangement between the governments of Australia and Malaysia on transfer and resettlement do not provide for reliable guarantees of basic human rights of the transferees.

  • “Operations under this Arrangement will be carried out in accordance with the domestic laws, rules, regulations and national policies from time to time in force in each country…”  (Arrangement Between the Government of Australia and the Government Of Malaysia on Transfer and Resettlement; Clause 12)
  • “Transferees will enjoy an adequate standard of treatment, including having access to the same support as other asylum seekers and refugees in the community” (Annex-A: Operational Guidelines to Support Transfers and Resettlement; 3.0)

It is a known fact that Malaysia lacks an administrative and legal framework for refugee protection.  The lack of legal recognition of refugees and asylum seekers in the country constantly exposes them to the risk of arrest and impedes their access to education, legal employment, health care, and other social freedoms.

Further, there is no information to date on the modalities of how “(a) Transferees will have ongoing access to self reliance opportunities particularly through employment, and, (b) Transferees will be encouraged to become self sufficient as soon as possible. “ (Annex-A: Operational Guidelines to Support Transfers and Resettlement; 3.2)

Afghan Refugees

We also urge the Australian government to promptly and without delay determine the refugee status of those Afghan refugees on Christmas Island and to immediately release from detention all those who are found to be refugees.

A study by HEI in 2009 with 73 Afghan refugees and asylum seekers indicates that the majority of Afghan refugees in Malaysia belong to ethnic minorities (mainly Hazara, but also others like the Tajiks, Qizilbash) and religious minorities (Shiite) fleeing persecution by the Taliban.  Their religious status poses potential risks for them in Malaysia and impedes their integration locally.  Moreover, linguistic and cultural barriers make it extremely difficult for them to find employment and rent houses in Malaysia. Their lack of community support networks which are imperative for those surviving in subterranean spaces without a legal identity exacerbates the multi-dimensional poverty experienced by this group.

As a community that had endured decades of conflict and inter-generational refugeehood we believe that unless the humanitarian and security situation in Afghanistan improves, unless the strident efforts to compel Afghan refugees in Iran to return home to situations of insecurity are capped, and unless there is an increase in resettlement opportunities, they will continue to undertake precarious journeys further afield in search of more effective refugee protection and more sustainable life solutions.

We plead for a thoughtful and compassionate consideration of these above mentioned population groups requiring international protection.


There is a compelling body of evidence on the association between forced migration related policies and poor mental health outcomes. As such, we are constrained to draw attention to the potential negative health outcomes of policies such as the current arrangement and strongly urge Australia to:

  1. Refrain from sending all children, including unaccompanied minors and children traveling with their families to Malaysia.
  2. Give special consideration to the international protection needs of Afghan refugees, including promptly and without delay determining the refugee status of those Afghan refugees on Christmas Island and to immediately release from detention all those who are found to be refugees.
  3. Cease from sending those suffering from mental health problems to Malaysia.
  4. Recognize and integrate the special protection needs of refugees and asylum seekers within enforcement of border control, anti-trafficking and anti-smuggling strategies.
  5. Uphold its obligations under international law, especially in relation to the 1951 Refugee Convention

Please find attached to this letter the report of the study on Afghan refugees and asylum seekers in the Klang Valley.

Please feel free to contact us if you require any additional information.

Yours Faithfully,

  1. Health Equity Initiatives (HEI)
  2. Women’s Aid Organisation
  3. Lawyers for Liberty
  4. Tenaganita
  5. Suara Rakyat Malaysia (SUARAM)
  6. Malaysian Social Research Institute (MSRI)
  7. Pusat Kebajikan Good Shepherd
  8. Good Shepherd Sisters Malaysia


  1. Mr. Andrew Metcalfe, Secretary of the Department of Immigration and Citizenship (DIAC)
  2. Prime Minister’s Office
  3. Ms. Emily Johnson, Adviser, Office of Senator Sarah Hanson-Young
  4. Mr. Paul Power, Chief Executive Officer, Refugee Council of Australia
  5. Dr. Graham Thom, Amnesty International Australia
  6. Mr. Paris Aristotle, Director, Victorian Foundation for Survivors of Torture
  7. Ms. Michelle Dimasi, Director, Asylum Seekers Christmas Island

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