Is there any precedent for the Cambodia agreement?
No, an agreement of this nature has never been made before and is contrary to all international practice on refugee matters. At various times the Australian Government has attempted to portray the Cambodian agreement as an arrangement for ‘resettlement’, ‘responsibility-sharing’ or ‘capacity-building’ and to liken it to other arrangements of these kinds, but in fact it is none of these.
Why is the Cambodia agreement not a 'resettlement' arrangement?
‘Resettlement’ is one of three durable solutions which States and UNHCR seek to find for refugees (the other two being local integration in the country of asylum and voluntary repatriation to the refugee’s country of origin). It involves selecting recognised refugees who have left their countries of origin and are living in camps or urban areas abroad, and relocating them to another country which has agreed to admit them on a permanent basis. Resettlement is available to very few refugees, with the UNHCR submitting less than one per cent of the world’s refugee population to resettlement countries for consideration. Resettlement countries then have full discretion to choose how many and which of these referred refugees they will accept.
By their very nature, resettlement arrangements always involve countries with a greater capacity to host refugees accepting them from other countries of asylum which are less able or willing to do so. It is unprecedented for a country like Australia, with not only the legal and moral obligation to find a solution for refugees, but also the capacity and expertise to do so, to relocate them instead to a country like Cambodia, which struggles with severe poverty, under-development, and insufficient infrastructure, services, and capacity to meet the needs of its own citizens, let alone refugees.
Why is the Cambodia agreement not a responsibility-sharing arrangement?
In 2015 there were an estimated 3.5 million refugees (one third of the world’s total refugees), 1.9 million internally displaced people, and 1.4 million stateless people in the Asia-Pacific region alone. These figures demonstrate that it is crucial for all States in the region to cooperate and share responsibility for providing protection to those who need it.
However, rather than being an agreement for the sharing of responsibility for asylum seekers in the region, this agreement constitutes an elaborate and expensive attempt by Australia to avoid taking any of the responsibility for refugees who arrived by boat after 19 July 2013. Responsibility-sharing, as its name suggests, usually involves a number of States sharing between them responsibility for processing and resettling refugees, even if they did not originally seek asylum in their territories. By contrast, the Australian Government is looking for other countries in the region to accept all of the refugees who arrive by boat and seek asylum in Australia, and has repeatedly stated that none of these asylum seekers will receive permanent protection in Australia. This is responsibility-shifting, not responsibility-sharing (see the comments of UN High Commissioner for Refugees António Guterres, below).
The fact that Australia selects a certain number of refugees to be resettled through UNHCR resettlement programs from camps and other locations around the world does not change the nature of the agreement with Cambodia. Resettlement is an important but voluntary commitment, and does not negate Australia’s obligations to take responsibility for those who arrive spontaneously at Australian shores seeking protection.
Why is the Cambodia agreement not a capacity-building arrangement?
While the agreement states that ‘Australia will provide capacity-building and necessary assistance to Cambodian officials to support the successful implementation of the MOU’, neither the MOU nor the Operational Guidelines provide any information about what this ‘capacity-building’ or ‘assistance’ might be. The agreement makes no provision for specialised training, knowledge-transfers, joint projects, the secondment of officials from one country to the other, or any other identifiable form of capacity-building. It is also noteworthy that while Cambodia has built its refugee policy and capacity over the last decade, Australia has not had a major role in this process. Accordingly, while the capacity of some Cambodian Government officers might develop incidentally as a by-product of their work alongside Australian authorities, there is no evidence in the agreement or public statements of either government to suggest that this is a primary purpose of the agreement. Incidental capacity-building of this nature is also unlikely to be sustainable, and therefore will not provide a basis for true regional cooperation on refugee issues in the long-term.
It is relevant to note that while the Cambodian Government has received increasing criticism for its treatment of Montagnard asylum seekers from Vietnam since late 2014, the Australian Government has made no public statement on the matter and does not appear to have taken steps to ensure Cambodia acts in accordance with its international obligations with respect to refugees. As such, it is does not appear likely that the Australian Government will be active in practice in relation to building Cambodia’s capacity and willingness to provide protection and meet its responsibilities to refugees and asylum seekers in its territory.
Will refugees only be sent to Cambodia if they ‘voluntarily’ decide to go?
Despite assurances that refugees will only be relocated to Cambodia if they ‘voluntarily’ choose to go, significant pressure has been placed on refugees to accept relocation. In some cases this pressure may mean that refugees feel coerced into accepting relocation, rather than having a genuine free choice.
The Australian Government faces an immense political difficulty, because it has insisted that no refugees will be settled in Australia from Nauru or Papua New Guinea, while having no other settlement options. After almost four years of offshore processing, Australia has failed to secure agreement with either Nauru or Papua New Guinea for the permanent settlement of all refugees in those countries. Nauru has only agreed to settle refugees temporarily, and Papua New Guinea has indicated that it will only be able to settle some of the men processed on Manus Island. As such, the Australian Government faces the increasingly critical question of where they should go.
This is where Cambodia becomes relevant. After months of extensive negotiations with various countries, the Cambodia agreement appeared to be the Australian Government’s best and last hope to avoid backtracking on its position and accepting refugees in Australia where they first sought asylum. However, the vast majority of asylum seekers and refugees in Nauru have indicated that they will not volunteer to go to Cambodia. In the immediate aftermath of learning about the Cambodia agreement, seven teenage asylum seekers reportedly attempted suicide, other asylum seekers (including children) sewed their lips shut in protest, and a group of refugees already settled in Nauru held a protest march with signs reading ‘only our corpse [sic] might go to Cambodia’ and ‘suicide is sweeter than Australia’s dirty policy’. Refugees also wrote a letter to the Australian Government saying, ‘they can send us to Cambodia but only our dead bodies’. These and other actions indicated that at least some of the refugees on Nauru did not feel they had a genuinely voluntary choice about relocation to Cambodia.
Pressure to accept the deal was applied in a number of ways, including by video messages from former Immigration Minister Morrison and current Immigration Minister Peter Dutton, warning refugees in Nauru that settlement in Australia ‘is not an option that the Australian Government will ever present to you’ and that Cambodia is their ‘only long term settlement option’. Previously, Minister Morrison threatened that recognised refugees who did not accept relocation to Cambodia might have their protection claims reconsidered. The prospect of family reunion in Cambodia, which is not forthcoming in Nauru, and large cash incentives, were also offered as inducements to encourage refugees to go to Cambodia. Decisions made in these conditions may not be truly ‘voluntary’.
Will refugees sent to Cambodia receive permanent protection?
If refugees choose to go to Cambodia, it is not certain that they will receive permanent protection there. The agreement states that Cambodia will grant refugees permanent residence status (MOU, article 8) and that they will be entitled to apply for Cambodian nationality through the process of naturalisation (Operational Guidelines, article 24(a)), however these rights are not necessarily guaranteed under Cambodian law or delivered in practice.
Access to identity documents
According to the MOU, refugees relocated to Cambodia will be entitled to a ‘Refugee Recognition Certificate’, ‘Refugee resident card’ and ‘Refugee identity card’ (Operational Guidelines, article 11). However, there is some concern about whether and when these documents will in fact be issued. Currently, refugees in Cambodia are entitled by law to a resident card, but in practice they are only issued with a Prakas (Refugee Recognition Certificate), which does not confer the same rights as a resident card (see below regarding naturalisation). While this practice might change with the new agreement, compliance with this provision of the MOU is not certain. Furthermore, the agreement does not clarify:
- whether and how a ‘Refugee resident card’ might differ from an ordinary ‘resident card’;
- what the differences are between the three identity documents, and the relevance of these differences;
- the circumstances in which each identity document might be revoked or cancelled;
- when exactly the identity documents will be provided to refugees; and
- whether refugees will be required to apply for extensions to their ‘Refugee resident card’ every two years, as is required for ordinary resident cards.
The need for clarity on these matters is particularly acute because Cambodia does not have a single, centralised system for issuing or recognising identity documents. The existence of multiple forms of identity documents and confusion about establishing identity may prevent refugees and others from exercising their legal rights and accessing services.
Access to citizenship
While a refugee with permanent resident status could live in Cambodia permanently without acquiring Cambodian nationality, citizenship is an important part of permanent protection because many rights and freedoms are by law guaranteed only to Cambodian citizens (see below). The MOU claims to give refugees the right to apply for Cambodian citizenship by naturalisation, however this right is likely to be frustrated in practice by the lack of any law or regulation setting out the practical details or requirements for the application process.
Further, a person is only eligible to apply for naturalisation if they fulfil certain conditions. These include requirements that the person has lived in Cambodia and held a resident card continuously for at least seven years; has a paper issued by the local authorities certifying that they have ‘good behaviour and moral conduct’; does not have a criminal record; and has a ‘mentality and physical aptitude which will cause neither danger nor burden to the nation’. These conditions, which by law apply to all foreigners, may be inappropriate for refugees for a number of reasons. First, to date refugees in Cambodia have been ineligible to apply for citizenship because they have not been issued with resident cards. It remains to be seen whether this practice changes for refugees relocated under the agreement. Secondly, refugees who were charged with political crimes as part of their persecution in their countries of origin could potentially be excluded from citizenship on the basis of their criminal records in those countries. Finally, refugees with disabilities or other physical or mental health concerns, including refugees suffering from the effects of torture and trauma in their countries of origin and in detention in Nauru, could be excluded from citizenship on the basis that they are a ‘danger or burden’ to Cambodia.
Even if a refugee does fulfil all the conditions for citizenship, the law states that naturalisation is ‘not a right … but only a favour of the Kingdom of Cambodia’ and that the Government may reject any application at its own discretion. Accordingly, it is not certain that refugees relocated to Cambodia will acquire a right to citizenship.
Voluntary repatriation
The agreement also provides that Australia will ‘help facilitate the process of voluntary repatriation’ of refugees relocated under the agreement to their countries of origin or another country where they have the right to enter and reside, ‘as consented or requested’ by the refugee (Operational Guidelines, article 25). At the outset there was some concern that this provision implied that the agreement was not intended as a long-term solution for refugees, and that refugees would feel pressured to return to their countries of origin (especially if services in Cambodia are very limited and they cannot sustain a livelihood). By April 2016, three out of five refugees resettled in Cambodia have elected to be repatriated to their countries of origin.
Will refugees relocated to Cambodia enjoy the same rights and entitlements as Cambodian citizens?
No. While former Immigration Minister Morrison implied that refugees would receive the same treatment as Cambodian citizens by stating that they will enjoy ‘the standard entitlements of other residents of that country’, the agreement guarantees only the same rights as other non-citizen residents. While non-citizens often do not to enjoy all the rights of citizens (for example, the right to vote), by law and in practice non-citizen residents in Cambodia have significantly fewer rights and tend to experience discriminatory treatment in many aspects of daily life.
First and foremost, the rights, protections and freedoms set out in the Cambodian Constitution are guaranteed only to ‘Khmer citizens’. Further, under Cambodian law, refugees and other migrants are subject to a range of restrictions. For example, the law:
- authorises restrictions to be imposed on their freedom of movement within Cambodia and their ability to travel outside of Cambodia (see below);
- imposes restrictions on their ability to work (see below); and
- imposes limits on their right to own property (it is unclear if any of the new documents which will be issued to relocated refugees will exempt them from this limitation).
In addition, refugees experience difficulties in accessing rights and services due to discrimination by the authorities and members of the public, language barriers, and the fact that under Cambodian law they are treated the same as all other regular migrants despite having different needs and backgrounds.
Finally, it is worth noting that even if refugees were entitled to the same rights and entitlements as Cambodian citizens, the available services would in many cases be insufficient to meet their particular needs. For example, refugees relocated to Cambodia may require advanced mental health services to assist them in recovering from the effects of their past persecution and detention in Nauru. These services are extremely limited in Cambodia, and are unlikely to be sufficient to meet the additional demand, particularly outside Phnomh Penh.
Will refugees sent to Cambodia be able to choose their place of residence and enjoy freedom of movement?
No. Despite Cambodia’s commitment to ensure that refugees enjoy all of the rights guaranteed to them under the Refugee Convention, it does not appear that they will enjoy their right to choose their place of residence and move freely within Cambodian territory. Upon arrival in Cambodia refugees will be housed in ‘temporary accommodation’ provided by the Cambodian Government, which may be in the form of a camp or centre. The agreement claims that refugees will enjoy freedom of movement throughout the country during this time; however, refugee advocates in Cambodia have expressed deep concern about the nature and conditions of any institutionalised accommodation in light of past experience with similar arrangements.
The agreement does not explicitly limit the freedom of movement of refugees once they leave the temporary accommodation, but in practice refugees will have no choice but to live in particular places where essential services are available. The Cambodian Secretary of State for the Ministry of Foreign Affairs, Long Visalou, has affirmed that refugees ‘will live outside Phnom Penh’ and ‘surely … will not be housed [permanently] in Phnom Penh’ because it has ‘too many people already’. It is unclear whether the Cambodian Government intends to prohibit refugees from living in Phnom Penh, or will merely seek to discourage them by providing services elsewhere. In either case, it is concerning that while in principle refugees will be able to travel freely around Cambodia, Cambodian law authorises the Minister of the Interior to prohibit refugees and other migrants from entering, residing in, or travelling far from a certain zone (or indeed the entire territory of Cambodia).
Will refugees sent to Cambodia receive travel documents and be able to travel outside of Cambodia?
It is unclear. While the agreement guarantees to refugees the right to receive travel documents in accordance with the Refugee Convention, refugees who are already in Cambodia are not currently issued travel documents as a matter of course despite also having that guarantee under Cambodian law. Travel documents must be specifically requested by individuals wishing to travel when they are needed.
Will refugees relocated to Cambodia be able to work and earn a living?
Under the agreement, refugees are guaranteed the rights to apply for jobs and run businesses (and are expected to become self-sufficient within a year), however these rights may not translate to an ability to earn a living in practice.
The Cambodian Government has implemented a number of significant policies in recent years to boost its economy and increase employment, but many Cambodians still struggle to find work at all, or to earn sufficient income to support a family. Every year between 300,000 to 400,000 young Cambodian job-seekers enter the domestic labour market where there are limited job opportunities, especially in rural areas. Competition is particularly hard for jobs which do not require advanced education or training.
The majority of Cambodians who do find employment work in Cambodia’s ‘informal sector’, meaning in jobs outside the legal framework which are not recognised, protected or regulated by public authorities. Workers in Cambodia’s informal economy include self-employed and small business operators, and workers without formal contracts, such as street vendors, motorbike-taxi drivers, garbage collectors, shoe-shiners, construction workers and domestic workers. They generally earn very low and irregular incomes, have little or no access to organised markets or banks to get credit, and lack the protection and support of social security and labour laws. Other Cambodian job-seekers migrate to neighbouring countries to find work, with more than 200,000 Cambodians estimated to be living and working illegally in Thailand alone. For many workers this experience is fraught with risks, including unsafe, abusive and exploitative working conditions, sub-standard living conditions and pay, abuse and detention by the authorities and human trafficking and slavery.
Refugees face additional difficulties in accessing employment in Cambodia, with employment in the formal sector almost impossible. Refugees (like other regular migrants) must hold a work permit to work legally, which can be revoked on a number of grounds, including if the refugee is ‘competing with Cambodian job-seekers’. Even if a refugee does hold a valid work permit, Cambodian law imposes many restrictions on the hiring of foreign workers and requires employers to give priority to Cambodian citizens when hiring. As a result, the only real employment opportunities for refugees are in the informal sector where they lack legal protection. Further, refugees face very significant obstacles in all sectors of employment due to racial discrimination, language barriers and the lack of social support networks. Indeed, refugees in Cambodia often depend on non-profit organisations and charities to help them earn a living.
Accordingly, former Immigration Minister Morrison’s comments that ‘those who have come on boats [are] quite innovative and entrepreneurial and I think there would be opportunities for people with those sorts of skills and enthusiasms’ may misrepresent the reality of the labour market in Cambodia generally, and for refugees in particular.
