UN says Australia refugee swap illegal

Canberra’s controversial plan to send asylum seekers detained on Australian soil to Malaysia as part of a “refugee swap” is illegal, according to the UN High Commissioner for Human Rights.

Speaking to Radio Australia on a visit to the country this week, Navi Pillay said that the deal, which is yet to be finalised, would likely violate refugee laws. “They cannot send refugees to a country that has not ratified it,” she said, adding that individuals are not protected in Malaysia, which is not a signatory either to the UN refugee convention nor the UN convention on torture.

Australia is bound by law to protect refugees on their territory, with the 1951 convention noting, in what is considered a defining point in Article 33, that “no contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his (or her) life or freedom would be threatened”.

It is expected that refugees may have to cross borders illegally. As in the case of Burma, refugees often cannot obtain travel documentation before fleeing.

Pillay was also highly critical of Australia’s policy of mandatory detention of asylum seekers. She told a press conference that, “Thousands of men, women and – most disturbingly of all – children have been held in Australian detention centres for prolonged periods, even though they have committed no crime.

“When detention is mandatory and does not take into account individual circumstances, it can be considered arbitrary and therefore in breach of international law.” Both issues, she suggested, were part of an “ingrained political habit of demonising asylum seekers”.

Australia had earlier signed a deal that will see asylum seekers in Australian detention centres re-incarcerated in Malaysia, in particular those who arrive by boat on Australia’s shores. The $US300 million deal will see Australia resettle 4,000 refugees, mostly Burmese, who have been processed in Malaysian detention camps, which is part of their existing obligation. The asylum seekers bound for Malaysia will be sent to the back of the registration queue, despite perhaps already having spent months, if not years, in detention centres.

Australian immigration minister Chris Bowen earlier said that plan’s main message to refugees was: “Don’t get on that boat”. It also apparently conveyed Australia’s “resolve to break the people smugglers’ business model and the trade in human misery that they rely on”. But little elaboration was given on precisely how the deal would break this business model.

Observers have also pointed out that, unlike Malaysia, Australia did sign the 1951 UN refugee convention, which states that signatories “shall not impose penalties, on account of their illegal entry or presence, on refugees”. This entails legal protection for refugees, while arbitrary detention or transfer to a third country is viewed by critics as a punitive measure, a view that Cowen’s statement supports. It is also in breach of the refoulment clause.

During the visit this week, Pillay met with detainees in Darwin, whom she described as “grimly despondent”. Earlier this year a detainee, believed to be from Burma’s Rohingya minority group, tried to commit suicide by self immolation as a result of the conditions in the same Darwin camp.

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