The Australian Human Rights Commission is worried about sending people who claim asylum in Australia to Malaysia or other third countries, and has urged that, in particular, the government not send vulnerable individuals such as unaccompanied minors, families with children and torture and trauma survivors under this agreement.

Yesterday, the Australian and Malaysian governments signed a groundbreaking arrangement to combat people smuggling and provide protection to an additional 4,000 genuine refugees.The Minister for Immigration and Citizenship, Chris Bowen MP, and Malaysian Minister of Home Affairs, Dato' Seri Hishammuddin bin Tun Hussein, signed the arrangement documents at a formal ceremony in Kuala Lumpur.

The arrangement provides for the transfer from Australia to Malaysia of up to 800 irregular maritime arrivals and formalises Australia’s commitment to accept 1,000 additional genuine refugees from Malaysia every year for the next four years. This increases Australia’s overall annual humanitarian intake to 14,750 places.

After Monday, 800 people arriving in Australia by boat will not be processed in Australia. They will instead be taken to Malaysia where they will have to wait alongside more than 90,000 other asylum seekers for their claims to be assessed. Meanwhile, an additional 4,000 people considered by UNHCR to be most in need of resettlement will be given the opportunity to start new lives in Australia.

Australian Human Rights Commission President Catherine Branson QC said while the Commission recognised the need for regional and international cooperation on asylum seekers and supported the resettling in Australia of an increased number of refugees, she was concerned that Malaysia was not a signatory to the Refugee Convention. This increases the risk that those transferred to Malaysia could be returned to their country of origin where they could face grave danger.

“There is a risk that in sending asylum seekers to Malaysia, Australia could breach its non-refoulement obligations under other international treaties including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child or the Convention against Torture. We are also concerned that transferring anyone who has a family member already in Australia could breach their right to family unity,” she said.

Ms Branson said it was important to remember that Australia received a small number of asylum seekers by international standards, with the UNHCR reporting that in 2010 Australia received only 2 per cent of asylum claims in industrialised countries.

“Instead of establishing third country processing, Australia should process all applications for asylum on the Australian mainland under the Migration Act,” Ms Branson said.

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