Gillard and Bowen's 'ingenious' Malaysian refugee swap plan that never took off
Prime Minister Julia Gillard's 'masterplan', the 2011 brainchild of her Immigration Minister, Senator Chris Bowen, seemed ingenious from a 'deterrent and punishment' perspective.
The rationale was that if you would arrive by boat in Australia, you would be put in the back of some queue (the nature and reality, or un-reality, of this dreamt-up queue was never made clear to anyone in Australia), and you would be deported to Malaysia.
To sweeten the deal, Australia offered to take no less than four UNHCR-assessed refugees from its Malaysian caseload for every person who would arrive on a boat in Australia.
Legally, Gillard and Bowen's nasty "Malaysia Solution" only lasted till August 31, 2011. On that day Australia's High Court ruled that the decision to declare Malaysia into a destination country for asylum seeker detention and processing purposes under the Migration Act "was made without power and is invalid" (Plaintiff M70/2011 v Minister for Immigration and Citizenship).
For Gillard Labor however, the madhatters party of the Malaysia Solution was artificially kept alive. Federal Labor's madhatters chorus, no matter whose turn it was to defend both offshore processing and the Malaysia deal, kept singing their rhetorical songlines, like the repeated chants of dumbed-down monks who can no longer think for themselves.
Whenever ministers or backbenchers were asked about the enormous change away from Labor's consistent and vehement opposition to Howard's dumping of asylum seekers on Nauru or PNG's Manus Island, the chorusline was repeated with Dutch courage until the bitter end of the Gillard government: "I have changed my mind", "We have changed our mind" or "Circumstances have changed now".
On 12 September 2011, less than a fortnight after the High Court delivered its ruling, Julia Gillard announced that the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 would be introduced to the Parliament.
The legislation, tabled in the Parliament on 21 September 2011, was a now familiar example of what immigration historian James Jupp has called the Immigration Department's game of "Snakes and Ladders", where it immediately drafts legislation to circumvent the Australian Courts, when findings are issued against the Immigration Minister.
With this legislation Gillard Labor had convinced itself that it had a better stick to bruise the Tony Abbott opposition. Labor argued that the messy boat arrivals debacle could now be portrayed as Abbott's fault, especially when it became clear that the Liberal conservatives were having none of it, bluntly refusing to support the Malaysia refugee swap deal. Again Labor failed to realise that nothing it ventured would ever be supported by the opposition: since Tampa the conservatives had known they had the upper hand with a merciless asylum seeker discourse, and Abbott was not at all interested in handing over the conservatives' winning cards.
Not only proved Gillard's Malaysia refugee swap deal unpopular, legally condemned and fruitless in Australia, within weeks of its announcement it also came unstuck and was heavily criticised in Malaysia. Until the end of the Gillard government it was only Labor that kept harping on about it against better knowing. Australian reporters too shone a light on the prospects of asylum seekers under Malaysian rule, that was damning on all levels. This page brings together some of that material.
31 August 2013: The Gillard government's offshore dumping policy (1) - Under Prime Minister Julia Gillard, Labor kept lurching sharply to and fro before finally settling on leaving asylum seeker cruelty of John Howard well behind in its wake - creating its own newly ALP-constructed asylum seeker cruelty policy, from offshore detention on Manus Island in Papua New Guinea to an international refugee trade deal with Malaysia.
31 August 2013: The Gillard government's offshore dumping policy (2) - Prime Minister Julia Gillard announced on May 7, 2011, that all boat arrivals could well be subject to deportation to Manus Island on PNG for detention and processing purposes. The announcement and the announcement of a Malaysian 'refugee swap deal' started a heightened media interest in every single boat arrival, and ongoing speculation about the fate of these passengers resulted in a virtual media frenzy following boat arrivals.
12 December 2011: When Canberra neuters the courts - When asylum policies are unlawful, Australian politicians manipulate the law and make it legal. With the Deterring People Smuggling Bill 2011, the Gillard government responded just within the nick of time: one day before the courtcase was to come before the Victorian Court of Appeal, the measures were rammed through the House of Representatives within 54 minutes. Its sole purpose was to stymie the courtcase.
Click the links below to jump down to the articles and items on this page with the same title.
Sydney Morning Herald
May 15, 2011
There is a growing chorus of opposition in Malaysia over Australian plans to send 800 unwanted asylum seekers there.
An unlikely coalition of senior justice officials, legal professionals, former diplomats and opposition politicians are questioning the legality of the deal to accept refugees from Australia.
Malaysia's main opposition leader, Anwar Ibrahim, is the latest to join the debate. He says "this is a dubious deal, the legality of which must be investigated" and plans to strenuously object to the proposal when parliament next sits.
"The whole issue is shrouded in secrecy. The track record of this [Malaysian] government shows that the legality of it just doesn't seem to matter," he said.
A former Malaysian High Commissioner, Dennis Ignatius, first raised the legal issues publicly. "There might be questions about the legality of this whole exercise under Malaysian law. Will their refugee status be recognised by the government?" he asked.
His comments are significant because they were published in the Star newspaper, which is owned by the second-largest party in the ruling coalition and is often reluctant to publish material critical of official policy.
The Malaysian Bar Council then articulated the problem further, explaining that beyond the fact that it hasn't signed the Geneva Refugee Convention, Malaysia does not legally recognise the concept of an asylum seeker. Even if refugees are processed by the office of the United Nations High Commissioner for Refugees and granted identification documents, the Malaysian government still considers them ''illegal''.
A spokesperson for the Australian Immigration Minister, Chris Bowen, said the details were still to be finalised, but it was hoped the agreement would be signed within weeks.
News of the new arrangements has reached some of the 93,000 refugees living in Malaysia. "There is no justice in the world" cried Faridah Fazal Ahmad. "I would rather they just come and kill me."
Faridah is a Rohingya refugee who fled Burma 20 years ago for Malaysia. Along with her four children, she shares a squalid room above an old shop with dozens of other refugee families in Ampang, Kuala Lumpur.
Rohingyas are considered illegal under Malaysian law, meaning they are not allowed to work or inhabit a permanent home. They are regularly rounded up by authorities, kept in detention and occasionally beaten.
Three years ago Faridah's husband, Amin Hussein, paid a people smuggler $9000 to take him to Indonesia. Eventually he was put on a boat bound for Australia. Last year he arrived on Christmas Island, where he was kept in detention for eight months until his asylum claim was determined to be legitimate. He now has residency and lives in a room in Brisbane, with little more than a mattress and a smattering of English.
Faridah says this is her one reason to hope. She wants to move to Australia to be with her husband, but she knows if Amin had never taken the dangerous, illegal decision to get on the boat to Christmas Island that he too would be sitting in Malaysia.
Mr Bowen's spokesperson said Malaysia has undertaken to treat asylum seekers sent from Australia ''with dignity and respect and in accordance with human rights standards".
Hamish Macdonald is the senior foreign correspondent for 6.30 With George Negus, which screens week nights on Channel Ten.
The West Australian
May 18, 2011, 2:25am
A coalition of high-profile Malaysian lawyers and human rights groups have called on Australia to scrap its refugee exchange deal with Malaysia immediately.
The groups, which include the Malaysian Bar Council and human rights organisation Suaram, accused Australia of trying to "outsource" its international obligations under the 1951 Refugee Convention.
They were due to meet Australian representatives at the Australian High Commission in Kuala Lumpur today to discuss concerns that the plan would breach international human rights laws.
But they said they were told yesterday that the meeting would be postponed.
The groups hope to add to the pressure on the Australian Government over its plans to exchange 800 asylum seekers who arrive by boat with 4000 registered refugees from Malaysia.
Yesterday, Home Affairs Minister Brendan O'Connor confirmed a boat with 20 asylum seekers and one crew had been intercepted north-west of the Ashmore Islands on Monday evening.
The group were taken to Christmas Island pending removal to another country.
It is the third boat to arrive since the Malaysian deal was announced.
Eric Paulsen, from Malaysia's Lawyers for Liberty, said the legal and human rights groups had banded together because they had serious concerns about the plan.
Their main worry was how Australia could guarantee the asylum seekers would be treated with dignity and respect "considering that Malaysia has an appalling track record and is one of the world's worst places for refugees."
"All of a sudden, without any changes to Malaysian immigration laws and policies, will asylum seekers suddenly become immune to their day-to-day reality of arbitrary arrest, detention, harassment, extortion, jailing and whipping? We doubt that very much," he said.
The world refugee agency UNHCR, which handles every aspect of refugee processing in Malaysia, has said it was not consulted on the plan or told what shape it will take.
Karlis Salna and Paul Osborne, Jakarta
19 May, 2011 07:05am
Malaysia says it will only accept asylum-seekers who arrive in Australia after the transfer deal with the Australian Government is finalised, placing those who have been intercepted in the past 10 days in limbo.
Under the deal announced on May 7, up to 800 new boat arrivals will be relocated to Malaysia for processing, in return for Australia accepting 4000 people who have been granted refugee status there.
But Malaysia's Home Minister, Datuk Seri Hishammuddin Hussein, has reportedly said that a boatload of 32 asylum-seekers which arrived on May 14 will not be accepted by his country.
''On reports that a boatload of 32 asylum-seekers temporarily housed at Christmas Island before being sent to countries such as Malaysia or Papua New Guinea where their refugee applications would be processed, Hishammuddin said the batch was not part of the transaction as the deal had not been finalised,'' Malaysia's The Star reported.
The comments come after Australian Immigration Minister Chris Bowen said on Tuesday anyone who arrived on a boat after May 7 would not be processed in Australia, and would be sent to a third country.
''What we've said about people who arrive in Australia from last Saturday, .. is that anybody who arrives in Australia will not be processed in Australia and has no guarantee of resettlement in Australia,'' he told the ABC on Tuesday.
A spokesman for Mr Bowen said yesterday the Government accepted that ''no person will be sent to Malaysia until the arrangements are finalised''.
''Advanced negotiations are continuing with both Malaysia and Papua New Guinea in relation to all arrivals following the May 7 announcement,'' the spokesman said.
Another two boats, carrying 75 passengers, arrived on Monday.
In a further development, Indonesia has indicated it was interested in pursuing a deal similar to the one apparently agreed to between Australia and Malaysia.
A spokesman for the Indonesian Foreign Ministry said yesterday that while no official talks had taken place, he would not rule out the possibility of such a deal in the future.
''We are in close contact with Australia at various levels in how we can cooperate in dealing with these issues that affect both our countries,'' the spokesman said.
Indonesia, along with Malaysia, is the main transit point for asylum-seekers heading to Australia by boat.
Mr Bowen confirmed on Tuesday evening that Australia would be interested in a transfer deal with Indonesia.
''We're not in formal discussions about a transfer agreement with Indonesia at the moment because my focus has been on Malaysia,'' Mr Bowen said.
''But I do think this shows the potential for the sorts of agreements that could apply across the region,'' he said.
Irene Fernandez, CEO, human rights group Tenaganita
May 18, 2011 - 1:48pm
The Home Minister Hishammuddin Hussein, in his statement on the asylum swap, reported today between Malaysia and Australia is a pioneering and cutting edge solution to tackle people smuggling.
He further added that this new approach would confidently combat human trafficking.
Tenaganita, an organization that has worked for the last 15 years on human trafficking and on refugees cannot understand nor recognize how an asylum swap framework of agreement will combat human trafficking.
The home minister seems to put all issues into one basket. Asylum-seekers and refugees are different. Refugees are people fleeing for safety to protect their lives resulting from persecution.
While it is true that they can be vulnerable to being "smuggled" or be trafficked at some stage but we cannot deny them their right to land and be protected.
However, the asylum swap talks is about refugees who are already in Australia and who will be deported to Malaysia which is seen as a country that is hostile to refugees and treats them as illegal immigrants with no right to work, education and open to arrest and detention.
This deportation of 800 refugees is a gross violation of their rights and the principle of non refoulemont guaranteed under the UN Convention on Refugees to which Australia is a signatory.
Central to the issue is protection of rights of refugees that cannot be compromised.
It is the rights approach that the home minister does not address nor recognize at all in the deal. And Australia must hold to its state obligations and ensure the protection of rights of refugees and their integration into Australian society.
The minister's position can be further argued as we look into Malaysia's human rights record. Malaysia holds a very weak record of its commitment to protection of rights is clear.
It has not ratified basic Conventions like against Torture and the Universal Declaration of Human Rights. (ICCPR and ECOSOC).
It is not a signatory to the UN Convention on Refugees and many more international instruments.
Thus the Malaysian government is not obligated to protect rights nor can be it be made accountable by the international community nor by Australia.
Diplomatic assurances do not provide any confidence especially when legal measures for rights protection are not in place in Malaysia while its environment being a dangerous condition to life even life threatening situation for refugees.
The agreement seems to turn Malaysia into a processing centre and an interceptor for boats thus barring refugees from landing in Australian territory.
Australia on the other hand is passing its internal problems of refugee protection and growing xenophobic reactions to Malaysia. If this is what the deal will be, how can the home minister argue it will address human trafficking?
The incidence of human trafficking in the country is extremely high with investigations being weak. The rights of the victims or survivors of human trafficking are still unrecognized and civil society does not have access to victims after they are rescued.
The legal framework and policies for migrant workers continue to place them in highly exploitative conditions that result in human trafficking.
We would like to remind the home minister to begin the change in our backyard and ensure the root cause of human trafficking in the country is addressed before becoming an interceptor for another country.
We call on the home minister to stop pulling wool over our eyes and demand transparency into the agreement and the implications for Malaysia.
Even if it addresses the issue of human trafficking, central to it, is the protection of rights of refugees and asylum seekers. The rights framework is absent and thus it is totally rejected as a "good" initiative.
Before any such initiative or agreements are made, Malaysia must change the legal framework, ratify the Convention on Refugees and show its commitment to rights protection with humanitarian support for asylum seekers and refugees.
The writer is the executive director of human rights group Tenaganita.
Tom Allard and Dan Flitton
May 19, 2011
Malaysia has no intention of accepting 107 asylum seekers who have arrived at Christmas Island since its planned refugee swap deal with Australia was announced, despite statements suggesting otherwise by the Gillard government.
Three boats have made the trip to Australia from Indonesia since the announcement of the proposed deal 12 days ago, and each time the Australian government has said those on board will be repatriated to another country.
The assurances, made in press releases by the Minister for Home Affairs Brendan O'Connor, were puzzling because the deal with Malaysia has not been finalised.
Negotiations are also ongoing with Papua New Guinea to re-open its Manus Island detention centre while talks with Thailand for a similar swap deal are in their preliminary stages.
Indonesia yesterday also flagged an interest in a similar deal on asylum seekers.
Under the proposed deal with Malaysia, Australia will take 4000 long-term refugees from it in exchange for Malaysia taking 800 unauthorised arrivals by boat to Australia.
Malaysia has more than 90,000 refugees, many of them ethnic Rohingyas fleeing Burma. The presence of refugees in Malaysia is much bigger than Australia but the issue does not dominate political discourse like it does here.
Malaysia's minister for home affairs Hishammuddin Hussein told reporters in Malaysia on Tuesday that those asylum seekers who arrived in Australia before the deal were finalised were ''not part of the transaction'', the Malaysia Star said.
The comments were confirmed by Malaysian government sources last night.
However, Mr Hishammuddin did give the Australian government some better news.
It expects to confirm the deal by month's end and ''if it works out, we will want to institutionalise it.''
Indonesia is supportive of the arrangement between Malaysia and Australia, viewing it as a sign of regional co-operation on a difficult issue.
Indonesia is the major transit point for refugees coming by boat to Australia and chairs the Bali Process forum, which develops policies to combat human trafficking and transnational crimes.
Monday, 16 May 2011
by freelance journalist Stuart Ranfurlie in Kuala Lumpur
For Swe Lang, talk of life in Australia brings a wry smile. Fleeting as the grin is, it is the only sign of joy from the 15-year-old, whose grim experience is etched into his face. Swe is a member of the Karen minority in Burma, and fled his homeland with friend Tan Myen, also 15, after the Burmese military attempted to forcibly conscript them. The pair left their family and joined a group heading for Thailand, then continued further south to Malaysia.
The two arrived last month, and join the estimated 80,000 Burmese refugees now living in the south-east Asian country. Only their youth has spared them an extended stay in immigration detention. While Swe smiles at the prospect of living in Australia, the reality is he's unlikely to experience it under the agreement between Australia and Malaysia floated earlier this month.
The 4000 refugees set to come to Australia over the next four years under the deal is a significant number, but still only a relatively small percentage of the 90,000 total refugees estimated to be living in Malaysia. That ratio, and the fact that no detail has yet been given on who will be selected and how, means refugee organisations in Malaysia are not getting excited about life in Australia just yet.
Burmese arrivals in Malaysia tend to associate closely with community groups from their home region -- Chin, Shan and Karen are among the most prominent from the 20 subcommunities represented. Community leaders from several Burmese migrant groups indicated to Crikey they were welcoming of Malaysia's mooted deal with Australia, but needed more detail. They requested their names and communities not be published, because of the risk of putting in danger the status of community members in dealing with Malaysian authorities.
Malaysia has become home to a steady stream of Burmese refugees, escaping the land confiscation and forced labour of the country's ruling junta. Many of those escaping, such as Swe and Tan, are bypassing the refugee camps on the Thai border because they offer little prospect of earning an income.
But life in Malaysia is still tough for many refugees. The country has not been welcoming to them, fearing they are an impediment to the country's effort to reach developed nation status by the end of the the decade.
While most arrivals spend a burst of a few months in detention when they first arrive, it is the years afterward they spend in legal limbo and with little financial support that proves most tricky. Through formally prohibited from working, many take jobs on the margins of the economy, in construction, hospitality or as domestic assistants.
"Nobody will come and feed us," said the leader of one Burmese community group. "To survive, we have to work. We do the jobs Malaysians don't want to do."
With little or no state support available, the community has developed programs to look after its own. On the middle floors of one run-down housing estate, one ethnic group has established a school for 150 students, where they can learn in English as well as their home language. As the community leader states: "If we don't teach them our own culture now, then in 10 years the only place they'll be able to see it is in a museum."
Elsewhere, an apartment has been established as a temporary home for more than 30 refugees, reliant on contributions from other community members and food donations from a local church to survive.
With Malaysia an unwilling host, the arrivals face a prolonged period of uncertainty. Andika Wahab, refugee co-ordinator for Malaysian human rights organisation Suaram, says he's aware of cases of people waiting five years, 10 years and in some cases more than 20 years for their situation to be resolved.
"During this time, they cannot work and they cannot get an education," he said. "It means they get desperate and angry."
Underpinning all this is Malaysia's refusal to sign the United Nations refugee convention, which would set minimum standards for treatment. Wahab reckons the government's reluctance stems from a fear that it will increase the number of arrivals. "They see it as a threat to national security," he said.
Malaysia's refusal to sign the convention means the work in processing asylum claims falls on the shoulders of the United Nations High Commissioner for Refugees. While the Burmese community leaders say the UNHCR does a decent job, its benefits are limited given Malaysia's obstinance.
The flip side of the proposed deal is that 800 new arrivals to Australia will be sent to Malaysia for the determination of their refugee status. It is this aspect of the deal that angers many refugee advocates in both countries, given it means they will initially be housed in Malaysia's immigration detention facilities.
"Nothing short of hell" is how Andrew Khoo, chair of the human rights committee at the Malaysian Bar, describes conditions inside. He describes the facilities as overcrowded, leaving detainees with poor sanitation and a lack of access to basic health care. His assessment is backed up by several investigations into the state of the facilities, as Crikey reported last week.
"These facilities are extremely overcrowded," an Amnesty report last year concluded. "They fail in fundamental ways to meet basic international standards and generally accepted good practice in the treatment of detainees and the management of institutions. "Detainees in immigration centres lack bedding, regular access to clean water, medication and sufficient food. They spend most of their time in their cells with no opportunities for exercise, organised worship or other activities. Diseases spread quickly, and fights are common. Detainees under age 18 are held together with adults, in violation of international law."
The Malaysian Bar is opposed to the refugee trade deal, and Khoo points out several practical flaws.
He says the agreement's claim that there would be "no preferential treatment" for the 800 arrivals who come via Australia over the 90,000 refugees already here would make it impossible to meet the deal's requirement that "transferees will be treated with dignity and respect and in accordance with human rights standards" given Malaysia's current policy.
He also points to the fact that community groups -- most of them ethnic Burmese -- play a crucial role in helping refugees. The 800 sent from Australia are more likely to be from Iraq, Iran or Afghanistan, places that lack an established community presence in Malaysia. (The country does, however, have a strong Tamil community, potentially making life a little easier for one group well represented among boat arrivals to Australia.)
For its part, the UNHCR is generally positive towards the agreement, but is seeking further discussion to see how it would work in practice. "We understand the agreement could contribute to better co-operation and burden sharing among countries in the region," Yante Ismail, a UNHCR spokeswoman, told Crikey.
The latest deal is not the first time Malaysia has acted as a temporary stop for refugees before coming to Australia. During the 1970s and 1980s, people fleeing Vietnam often spent time wallowing in refugee camps in Malaysia before they were given access to Australia.
Then, as now, Malaysia was keen to rid itself of the problem of unwelcome arrivals.
Monday, 9 May 2011
by Tom Cowie
Asylum seekers and refugees in Malaysia are often subjected to judicial canings, long periods of incarceration and arbitrary arrest, according to reports from within the country's immigration detention system.
And human rights groups also argue that Malaysia has a terrible record of refoulement -- the forcible return of asylum seekers to countries where they face persecution.
The disquiet comes as the federal government announced on the weekend it had inked a deal with the Malaysian government to ease the strain on its overloaded immigration detention system.
The agreement, which will see 800 Australia-bound asylum seekers redirected to Malaysia (where they will be landing at the "back of the queue" for processing), is the latest in the federal government's ongoing regional solution to boat arrivals. In return Australia will up its humanitarian intake and accept 4000 UNHCR-assessed refugees from Malaysia over the next four years.
The arrangement has raised triggered concern among refugee advocates and human rights groups, particularly over Malaysia's human rights record. They argue that Malaysia is not a signatory of the UN Refugee Convention -- a key reason given for why the federal government has not revisited Nauru as a processing option. In 2009, several UN Human Rights Council members expressed "concerns" surrounding refugees and asylum seekers held in detention in Malaysia.
As recently as last year Amnesty International reported that more than 6000 refugees are caned in Malaysia every year. Earlier this year, Malaysia's Home Secretary Hishammuddin Hussein disclosed to parliament that 29,759 people had been caned between 2005 and 2010 for immigration offences.
Under Malaysian criminal law, caning can be used as a punishment for more than 60 offences -- including immigration violations as well as violent crimes such as r-pe, kidnapping and armed robbery. The maximum number of strokes that can be dealt out to prisoners 24, although that can be increased if a prisoner has committed multiple offences.
Immigration offences in Malaysia include illegal entry and forging of immigration documents such as passports and visas.
In its 2010 report A Blow to Humanity: Torture by Judicial Caning in Malaysia, Amnesty interviewed several people who had been subjected to caning. One interviewee, 29-year-old Mohd Ghazali, said he had never experienced such pain as the three strokes of the cane he recieved:
"My body shivered. Everything went black because of the pain. It hurt so much my butt starting shaking all by itself."
Another, Hussain, said it "felt like an electric shock".
"I don't have the words for it... I only got one and I couldn't take it. I was thinking, how do people who get more take it."
Amnesty say the Malaysian government does not punish or deter officials from using the cane, "on the contrary, it trains officers how to conduct caning and pays them a bonus for each stroke".
Malaysia is not a signatory to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which prohibits corporal punishments such as caning as torture.
Human rights groups and advocates are also concerned with how long asylum seekers have to wait in Malaysia for their claims to be processed. As ABC Radio reported this morning, asylum seekers aren't allowed to work in Malasyia and are often forced to find illegal employment while dodging immigration police.
Asylum seekers are judged people of concern in Malaysia and are issued cards by the UNHCR allowing them to live in the community while their refugee applications are processed. Human Rights Watch have reported Malaysia's volunteer police force RELA arresting and detaining or extorting bribes from asylum seekers who hold these cards.
The UNHCR has also said it is still working to ensure that asylum seekers and refugees are protected against refoulement in Malaysia, a key legal principle that protects people from being returned to a place of persecution. Immigration Minister Chris Bowen has said that Malaysia has vowed not to send asylum seekers back to where they have come from.
The "Malaysian solution" marks the latest in a series of agreements the federal government hopes will form a regional approach to asylum seekers and people smuggling.
Last week it was revealed that the Department of Immigration and Citizenship is considering reopening Papua New Guniea's Manus Island detention centre to help alleviate its overloaded detention system. And earlier this year Bowen signed a deal with the Afghan government to allow for the return of nationals who had failed in their claims for asylum.
The Afghan agreement has been the subject of some controversy. Not long after it was initially signed, Afghan Refugee Minister Jamaher Anwary appeared to step away from the agreement claiming it did not allow for forced returns.
Last month Afghan MP Al Hajji Mohammad Mohaqiq, a prominent representative of the Hazara ethnic group, also voiced his opposition to the deal, while former Refugee Minister Abdul Rahim has called for the MoU to be scrapped.
Meanwhile, the federal government's plans to build a regional processing centre on East Timor appear to have been put on the back burner. There have been conflicting reports about the willingness of the East Timorese government to house the processing centre, as well as the readiness of the small nation to accept the bid.
The West Australian
May 16, 2011, 2:53 am
In Kuala Lumpur's run-down Imbi district, just a few blocks from the shops and bars of Bukit Bintang, the sound of children's voices echo through the concrete slums.
"Present, teacher," each yells out in quick succession as names are called from a roll.
Washing hangs out of every window.
A few floors below, a group of drug addicts are huddled together, shooting up in the stairwell.
But here in four small rooms at the top of a concrete apartment block, a group of volunteers are trying to give the children something that resembles a normal childhood.
The school is unmarked and illegal.
The children crammed on the floor are all Burmese refugees living in exile and are banned from getting a Malaysian education.
So the learning is done like everything in Kuala Lumpur's refugee community: underground.
Here, in the grim refuge of the fleeing, the desperate and the unwanted, hope has been in short supply for years.
There are no refugee camps in Malaysia.
Instead, the tens of thousands of refugees living under the radar are spread out in the cities and the slums, living 8-20 in just a single room, working illegally and in constant fear of raids, beatings, arrest and detention.
More than 94,000 people are registered as refugees with UNHCR's Malaysia office, hoping for resettlement or integration. But do the maths and the chances look grim.
No matter how many deserving cases there might be, just six countries - the US, Australia, Canada, Denmark, New Zealand, Sweden and the Czech Republic - will take about 8000 between them each year.
The rest live in limbo, eking out an existence in a shadow society hidden beneath the veneer of Kuala Lumpur and hoping that the 'queue' - which, contrary to political myth, isn't 'first come, first served' - twists somehow, some time in their favour.
So it's no surprise that while the ethics of the Gillard Government's controversial refugee swap promote heated debate in Australia, only one word is being used in the slums of Kuala Lumpur: hope.
"It means there is more of a chance for us," says Patrick Sang Bawi Hnin, a 25-year-old Burmese refugee who says he fled to Malaysia almost three years ago at the urging of his family after a near-death beating by Burmese soldiers.
"It means there will be more places and more opportunities for a better life."
Of the 94,000 refugees and asylum-seekers registered with the UNHCR in Malaysia, 87,000 are from Burma with the biggest proportion being the Christian Chin ethnic minority, the group most likely to benefit from the deal with Australia and the most likely to see their numbers boosted.
About 1500 Chin are crammed into the concrete blocks of the Imbi district. There are occasional raids and beatings but authorities mostly turn a blind eye.
"It is a difficult life, we are always in fear," says Patrick.
But when asked about the differences between applying for asylum in Australia and living in fear in Malaysia, which is not a signatory to the 1951 UN Convention guaranteeing protection to refugees, he says living in Kuala Lumpur still gives the refugees more dignity than they would have in an Australian refugee camp.
It is an answer echoed by other Malaysian 'illegals', who admit they live in constant fear being rounded up by Malaysian police, beaten and locked in a detention centre at any time. But they point to the informal schools and church services every Sunday night - made possible by a sympathetic Chinese Christian group giving them access to the church - which gives them a level of normality they would not get in a camp.
They can also work, albeit illegally and are constantly exploited.
This strong sense of informal community comes with numbers, of course, which the Chin have, and creates a support network not accessible to the smaller numbers of Afghans, Somalis and Iraqis registered in Malaysia as refugees.
"It is not an easy environment for refugees," UNCHR spokeswoman Yante Ismail says.
"However, there are some positive elements."
One important fact is that refugees can move freely - they are not in camps and are able to be empowered to find their own ways of coping and rebuilding their lives with dignity.
"It is true that we wish they could work legally, but refugees are able to access the informal work sector and they have opportunities for self-reliance."
She says the deal with Australia could also pave the way for better conditions for refugees in Malaysia, which is why the UNHCR is cautiously supporting it.
It is Friday afternoon and six-year-old Thang Chin Sang is sitting on his father's knee and talking about a place far away called Perth.
For most of his short life, he has known nothing but the slums of the Imbi district.
He grins and says he wants to be a soccer player. His eight-year-old sister wants to be a famous singer. His other sister, 10, says she wants to study medicine.
"I want to help people," Sung Len Tial says, swaying on her chair.
"I want to go to a real school."
Hope finally came for them last week, when they were told that they had been accepted by a foreign country for resettlement. Like other refugees, they didn't have a choice where they would be sent. They didn't care. But Australia agreed to take them. In a few weeks' time, they will be resettled in Perth, one of two cases headed for WA.
Their father, Ngun Hnin, says the news was like a dream.
He was working as forced labour in a tea plantation in Burma when the family fled to Malaysia five years ago. He has been working illegally in Kuala Lumpur ever since, installing electrical wiring for 50 Ringgit ($15) a day and trying to support his family.
"Now my children have a chance," he says.
The West Australian
May 17, 2011, 2:31am
Tan Tian Maw sits in an office on the outskirts of Kuala Lumpur, hands trembling in her lap, and describes how she was raped by two Malaysian policemen.
Her voice is soft and barely audible above the dragon boat drummer practising outside.
"She hasn't had any trauma counselling," her lawyer, Latheefa Koya, explains.
"No one has really helped her."
It is 10pm on a Friday and the Rohingyan refugee has agreed to tell her story for the first time.
She says she is not worried about the publicity: "I am in enough trouble already. There is nothing more they can do to me". The Burmese mother of two says she was riding a friend's motorbike in November last year when she was pulled over by two police officers who asked her for the bike's licence.
When she couldn't produce it, she says she was dragged into the patrol car where the pair took turns raping her.
Doctors confirmed an assault had taken place.
The UNHCR helped file a complaint with the Malaysian police, who initially claimed the rapists were fake police officers. They then said the patrol car was stolen.
Later, they conceded the pair were real officers but could not be identified and repeatedly questioned her about the ownership of the bike.
"No investigation has taken place," Ms Koya says. "Nothing will happen. And this is not unusual. This is standard for refugees.
"There is a lot of police abuse, even with Malaysians but worse with refugees. We're talking extortion, deaths in custody, shootings. They call it 'extrajudicial killings' because they're not being killed as part of a death sentence. They are shot in the course of arrest or something like that."
More than 94,000 refugees are registered with the UNHCR in Malaysia but unofficial figures put the number closer to 200,000, all spread out in the cities and the slums and living in constant fear of raids, abuse and imprisonment in one of the country's 13 detention centres.
This is the flipside to the planned Australia-Malaysia refugee swap and the one that has attracted the international ire of human rights groups.
It is here - in a country that has refused to sign the UN convention guaranteeing refugee rights - that Australia plans to drop 800 asylum seekers who arrive on Australian shores in exchange for 4000 registered refugees over the next four years.
"All Australia is relying on is the fact that Malaysia has guaranteed they will be treated humanely," says Renuka Balasubramaniam, one of a group of Malaysian lawyers who formed Lawyers for Liberty four months ago, working pro bono for refugee rights.
"All migrants and refugees in Malaysia, as long as they're non-citizens, are susceptible to regular and frequent and persistent harassment by authorities on threat of arrest - and this is regular thing for all of them.
"Because of the susceptibility to harassment, arrest, detention, whipping and trafficking - in that order - these are the reasons it is a bad idea to send them here.
"I think it's completely irresponsible. Totally irresponsible. You are supposed to be a responsible country."
Her colleague, Eric Paulsen, leans back in his chair and says he can understand the populist politics behind it. "The idea is to send a very strong deterrent message, that if you come, this is what's going to happen . . . we're going to send you to one of the worst places for refugees in the world," Mr Paulsen says.
"This is the huge big stick approach, 'If you come this way, this is what's going to happen'."
So what's in it for Malaysia?
"Just money," Mr Paulsen says.
"It's like 'I don't care if you give me rubbish, I'm just going to throw it on the heap with everything else . . . it's not like I have to take care of them'."
The next morning, in one of Kuala Lumpur's poorest districts, Burmese refugee Patrick Sang Bawi Hnin walks towards a non-descript doorway which marks the hidden entrance to the Chin Refugee Centre, an underground help group set up by Chin refugees.
A group of men have been waiting for him. They say their Malaysian boss, for whom they had been working for two months, has refused to pay them. Because they are working illegally, they have no rights.
"There is not much we can do," Mr Hnin says. "There is always exploitation."
He pulls out his mobile phone, one of the cheapest handsets available: "See this? We never carry good phones.
"When the police stop us and demand money, they also take the phones. If we have bad phones, they don't want them".
The Chin ethnic minority make up the biggest proportion of refugees in Malaysia and are the most organised.
But if the 800 asylum seekers that Australia directs here are Afghans or Iraqis, as is likely to be the case, they won't have the support network that comes with numbers.
"Malaysia is not a good country to be sending these people to," Ms Balasubramaniam says.
"They might have guaranteed these people will be treated humanely but Malaysia has no qualms about giving those types of assurances.
"They give it all the time. Malaysia sits on the Human Rights Council, in spite of its track record. So what they say counts for nothing."
At the UNHCR compound, near central Kuala Lumpur, staff say they have no idea what shape the Australia-Malaysian deal will take.
Not only has Malaysia not signed the UN convention guaranteeing refugees certain rights, they are not even recognised under domestic law.
So refugee processing is done by the UNHCR, who told The West Australian that they have not been consulted about the plan and assume the 800 asylum seekers sent from Australia would be dropped into the pool of 94,000 refugees living illegally in Malaysian cities after a "brief" period of detention for processing.
"This is why we are so incensed, " Ms Balasubramaniam says.
"We're going to send you to one of the worst places for refugees in the world." Lawyer Eric Paulsen.