The Australia-Malaysia asylum seeker deal could lead to illegal immigrants in Malaysia attempting to flee to Australia in order to return to Malaysia with new rights afforded to them under the deal, according to the Malaysian Bar.
Speaking to Lawyers Weekly, the president of the Malaysian Bar, Lim Chee Wee, said the fact that the 800 asylum seekers transferred to Malaysia under the deal (in exchange for 4000 processed refugees) will be given access to education, healthcare and employment - unlike the 90,000-odd asylum seekers already in Malaysia - could have such an outcome.
"As laughable as it may sound, there is a possibility that this deal could lead to a perverse scenario where the present asylum seekers with no rights in Malaysia may flee to Australia in order to return to Malaysia to enjoy the rights which both governments now say the 800 are assured of receiving," he said.
Under the deal, which was signed by Australian Minister for Immigration and Citizenship Chris Bowen and Malaysian Minister for Home Affairs Dato' Seri Hishammuddin bin Tun Hussein at a formal ceremony in Kuala Lumpur yesterday, the 800 asylum seekers sent to Malaysia will be issued with a card which allows them access to healthcare and education, and gives them the right to work.
"[They will be] exempted from certain provisions of our Immigration Act which would otherwise have meant they are considered as illegal in Malaysia and thus exposed to prosecution, detention and whipping," said Lim Chee Wee.
"There cannot be double standards in giving preferential treatment to the 800 asylum seekers in terms of rights and financial support."
The agreement formalises a commitment by Australia to accept 1000 refugees from Malaysia every year for the next four years, in exchange for up to 800 asylum seekers who arrive in Australia by boat.
The United Nations High Commissioner for Refugees (UNHCR) will determine which 4000 people are most in need of resettlement and who should be given the opportunity to live in Australia.
Asylum seekers arriving in Australia by boat after 25 July will not be processed in Australia and will instead be taken to Malaysia.
According to Bowen, transferees will initially be accommodated in a transit centre in Malaysia for up to 45 days, after which they will move into the community.
The president of the Australian Human Rights Commission, Catherine Branson QC, said that while the Commission recognises the need for regional and international cooperation on the issue of asylum seekers, and supports the resettling in Australia of an increased number of refugees, she is worried by the fact that Malaysia is not a signatory to the Refugee Convention.
"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," she said.
"Despite the safeguards in the agreement, there remains a risk that people transferred to Malaysia will be mistreated."
She also said it was important to remember that Australia received a comparatively small number of asylum seekers by international standards.
"Instead of establishing third country processing, Australia should process all applications for asylum on the Australian mainland under the Migration Act," Ms Branson said.
Lim Chee Wee also expressed his concern about possible breaches of Australia's obligations under international law.
"It is irresponsible of the Australian Government, as a state party to the UN Convention relating to the Status of Refugees - where it was an original state party - and its 1967 Protocol, to abdicate it's responsibilities under the Refugee Convention by passing the buck to Malaysia," he said.
The Law Council of Australia said the arrangement, designed to reduce the number of asylum seekers coming to Australia by boat, is not an appropriate solution to a complex problem.
"The Law Council does not agree the trade of asylum seekers for refugees is the solution to this substantial issue and we are very concerned over the implications and shortcomings of this agreement," said Council president Alexander Ward.
"While the arrangement purports to contain some human rights protections, there are significant shortcomings in the arrangement and in particular a lack of detail about unaccompanied minors and legal assistance for transferees."
The Law Council has previously expressed its concern in relation to the treatment of unaccompanied minors and said it is alarming that the agreement has been signed when the special procedures to deal with them are yet to be developed.