As of the end of June 2021, there are some 179,550 refugees and asylum-seekers registered with the UN High Commissioner for Refugees (UNHCR) in Malaysia.[1] What level of protection and privilege do these refugees and asylum-seekers get in Malaysia?
What Are the Main International Agreements Requiring Countries to Protect Refugees?
Together with other regional treaties and declarations, the 1951 Convention Relating to the Status of Refugees (“1951 Convention”) and its 1967 Protocol [2] (“the 1967 Protocol”) are the basis of the international protection system, addressing the rights of refugees.
Who Is a Refugee under The 1951 Convention?
A refugee is someone who by definition has fled their country without a choice as a result of persecution and infringement on their most basic human rights and are in need of international protection.
The key difference between migrants and refugees is that migrants enjoy the protection of their home countries; refugees do not.
Malaysia Does Not Recognise Refugee Status
Despite the large presence of refugees, Malaysia is not a party to the 1951 Convention nor its Protocol and does not have an asylum system regulating the status and rights of refugees within its jurisdiction.
Malaysia does not recognise refugees as such, and only allows asylum seekers to remain in the country on a temporary basis, after which they must return to their country of origin or be resettled in a third country.
At the outset, Malaysia’s unwillingness to legally recognise refugees is extremely inhumane and results in a violation of the norms of customary international law, including the right to seek asylum enshrined in the Universal Declaration of Human Rights (“UDHR”) and the principle of non-refoulement.[3]
The Principle of Non-Refoulement
The 1951 Convention and 1967 Protocol also ensure protection of refugees against refoulement, or forcible return to a country.
One of the most crucial effects stemming from non-accession to the 1951 Refugee Convention is that in principle, Malaysia is of the view that it is not legally bound to adhere to the principle of non-refoulement. In this regard, the authorities largely do not subscribe to the view that non-refoulement is a norm of international customary law.[4]
For example, in February 2021 Malaysia deported about 1,086 Myanmar nationals, despite a court order temporarily halting the repatriation amid concerns the group could be at risk if they are returned to military-ruled Myanmar.[5]
Are Refugees Protected Under the Immigration Law?
Under its general immigration law, refugees in Malaysia are not distinguished from other undocumented workers. In other words, refugees are considered illegal immigrants. Even holding a refugee card issued by the UNHCR, they can still be deported by the Malaysian government.
The Immigration Act 1959/63 provides the police and immigration authorities with widespread powers to arrest, detain and eventually deport those considered as illegal immigrants.
As of August 2005, an estimated 973 refugees were detained in prison and immigration detention centres in Malaysia, with 222 of them prosecuted for immigration violations.[6]
Living as a Refugee (and Asylum Seeker) in Malaysia:
As Malaysian law makes no distinction between refugees and undocumented migrants, refugees are at risk of being arrested and detained for immigration offences.
Refugees have no access to legal employment
Refugees and asylum seekers in Malaysia have no legal permission to work, forcing refugees and asylum seekers to seek sources of income from the informal labour market.[7]
Work is scarce for refugees as most employers are reluctant to employ them due to their undocumented status. When they are able to obtain work, it is normally on an ad-hoc basis, leaving refugees vulnerable to exploitation from unscrupulous employers. They are also at risk of being the victims of human traffickers.
Lack of access to affordable and appropriate healthcare
While there are no legal barriers to accessing healthcare, refugees and asylum seekers are subject to the cost of medical treatment for foreign nationals which is too high for most of them.[8]
What about refugee children who are born in Malaysia?
Since their parents are undocumented, such children are more often than not, hindered in obtaining birth certificates and other identification documents which would facilitate their access to basic needs including medical care and education.
They have in turn raised children who were born in Malaysia. They know no homeland other than Malaysia, since Malaysia is the land of their birth. For all practical purposes, these children are Malaysians, and yet they are not recognized as such by the authorities. It is difficult not to feel for their plight.
Lack of access to formal education
Refugee children are denied access to the formal education system in the country. However, some children are able to attend community-run learning centres and learning centres set up by the UNHCR and NGO partners.[9]
Has Malaysia Decided on its Citizenship Issue?
Zakir Naik, an Indian citizen, has been granted permanent residency in Malaysia by the previous government. He was forced to leave India in 2016, saying he was subjected to harassment and religious persecution by the Indian government.[10]
The Malaysian government never made clear whether Malaysia considers Zakir Naik a refugee or an asylum seeker and as such, is bound to protect him from extradition.
Currently, in the absence of any law on refugees and asylum seekers in Malaysia, a declaration that Zakir Naik is a recognised asylum seeker, or a refugee will be merely seen as a political position.[11]
This raises the importance for Malaysia to have a clear law on refugees and asylum seekers, which will enable the country to determine who can be considered as an asylum seeker or refugee and entitled to the country's full protection.
Conclusion – Moving forward
Malaysia needs a clear law and/or review of its obligations under existing extradition treaties and agreements that grants recognition to refugees and asylum seekers as a special class of foreign nationals.[12]
If refugees and asylum seekers are permitted to work and given proper training, they could make a better contribution to Malaysia’s economy than what they could at the moment.[13]
By failing to even take the step of legally recognising refugees, Malaysia continues to turn a blind eye to individuals - including children - most at-risk and in dire need of protection and instead subjects these individuals to continued persecution, violence, and discrimination.
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Reference:
[1] UN High Commissioner for Refugees (UNHCR), "Figures at a Glance", available at: https://www.unhcr.org/en-my/figures-at-a-glance-in-malaysia.html, (accessed on 7 August 2021) [2] UN High Commissioner for Refugees (UNHCR), "The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol), September 2011, available at: https://www.refworld.org/docid/4ec4a7f02.html, (accessed on 7 August 2021) [3] Jag, LETTER | Govt must stop detaining refugees upon arrival”, available at: https://www.malaysiakini.com/letters/530083, (accessed on 7 August 2021). [4] UNHCR, "Advisory Opinion on the Extraterritorial Application of Non-Refoulement Obligations under the 1951 Convention relating to the Status of Refugees and its 1967 Protocol”, available at: https://www.unhcr.org/4d9486929.pdf, (accessed on 7 August 2021). [5] AL Jazeera And News Agencies, "Malaysia deports 1,086 Myanmar nationals despite court’s order", available at: https://www.aljazeera.com/news/2021/2/23/malaysia-deports-1200-people-to-myanmar, (accessed on 7 August 2021). [6] Human Right Watch, available at: https://www.hrw.org/world-report/2021/country-chapters/malaysia, (accessed on 7 August 2021). [7] UNHCR, "Age, Gender and Diversity Accountability Report 2014", available at: http://www.ecoi.net/file_upload/1930_1436957479_55a61f794.pdf and http://www.unhcr.org/548180b69.pdf (accessed on 7 August 2021). [8] Refugees and asylum seekers are charged at the full foreign rate, which was increased in October 2016, with 50% discounts available to UNHCR cardholders. Even with a discount, the majority of refugees and asylum seekers are unable to afford healthcare services. [9] UNCHR, "Education in Malaysia", available at: https://www.unhcr.org/en-my/education-in-malaysia.html, (accessed on 7 August 2021) [10] Amy Chew, “Malaysia to question Zakir Naik as government weighs deportation”, available at: https://www.aljazeera.com/news/2019/8/16/malaysia-to-question-zakir-naik-as-government-weighs-deportation, (accessed on 7 August 2021) [11] Charles Hector & Madpet, "Malaysia needs law on refugees, asylum seekers”, available at: https://www.malaysiakini.com/letters/480541, (accessed on 7 August 2021) [12] Ibid [13] Aslam Abdul Jalil, “Solutions for Malaysia’s long-suffering refugees”, New Mandala, 5 August 2015, available at: https://www.newmandala.org/solutions-for-malaysias-long-suffering-refugees/ (accessed on 7 August 2021)
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