The Migration
Working Group appeals to the Cabinet to recognize the appalling
realities faced by these individuals in our country and to ensure that
Malaysia meets its international obligations to protect and assist these
populations.
Realities
faced by Asylum Seekers, Refugees and Stateless Persons
As Malaysia
has not yet enacted domestic laws that recognize, protect and assist asylum
seekers, refugees and stateless persons, they are treated as non-documented
migrants, and are subjected to arrest, prolonged detention under
difficult conditions, whipping, imprisonment, and deportation.
We have heard
numerous horrifying accounts where asylum seekers and refugees from
Burma are handed over to human smugglers/ traffickers at the Malaysia-Thai
border, who demand payment for their release. Those who are unable to pay
the monies required (typically ranging from RM1,400 to RM2,500) are
sold – to fishing boats, brothels
or ‘private owners’ – for sex or as
bonded laborers.
Even those
issued with identity documents by the United Nations High Commissioner
for Refugees (UNHCR) are vulnerable to arrest, as Ikatan Relawan Rakyat
(RELA) volunteers and Immigration officers often do not recognise the
validity of these documents.
An average of
700-800 UNHCR-recognised refugees remain under detention every month.
About 100 of these are children. The UNHCR is not allowed to visit asylum
seekers in detention centres and prisons, which directly jeopardizes
their right to seek asylum, a universal right in international customary law.
They are detained indefinitely –
sometimes for more than 2 years –
suffering violence, poor access to health care, and poor conditions of
detention.
The
unnecessary arrest, detention, whipping and deportation of asylum seekers,
refugees and stateless persons do not only perpetuate violence and
vulnerability, it constitutes the abuse of human rights and wastes limited law
enforcement resources which are desperately needed for the prevention of
real crime.
Malaysia’s
International Obligations
Malaysia’s
international obligations include the following:
1.
Upholding the rights of every person as set out in the 1948 Universal Declaration of
Human Rights, which is international customary law and therefore
binding on Malaysia. These include the right to life, liberty and security
of person, the right to freedom from arbitrary arrest and detention, as
well as the right to seek asylum.
2.
Taking measures necessary to fully respect the international customary law of
non-refoulement, which prohibits the return of people to places where they may
face persecution or threat to their life or freedom.
3.
Acting on the recommendations of the Committee on the Elimination of Discrimination
Against Women (CEDAW) to Malaysia as stated in their Concluding
Comments of May 2006, which include adopting laws and regulations
concerning the status of asylum seekers and refugees, in line with
international standards, to ensure their protection.
4.
Acting on the recommendations of the Committee on the Rights of the Child (CRC) to
Malaysia as stated in their Concluding Comments of February 2007, which
include abolishing caning and other forms of corporal punishment for
those under 18 years of age, taking urgent measures not to detain
children for immigration proceedings,
establishing a screening process to
identify asylum-seeking and refugee children, developing legislation
for the protection of asylum-seeking and refugee children, and strengthening
collaboration with the UNHCR and other agencies, including providing
access to persons of concern in detention.
Immediate
Recommendations to the Cabinet
In line with
the above, we seek the commitment of the Cabinet to ensure that:
1. All
law enforcement agencies (in particular RELA and Immigration) respect UNHCR
documents and refrain from arresting holders of these documents
2. The
UNHCR is given free and full access to asylum seekers, refugees and stateless
persons in all Immigration Detention Depots and Prisons so that they can
verify if asylum claims are genuine and take measures to assist refugees.
Recognized refugees should be released into the official care of the UNHCR
while durable solutions are found.
3.
Lawyers are given full access to refugees, asylum seekers and stateless persons to
ensure that their right to representation is upheld for any form of court
proceedings.
4.
Asylum seekers, refugees, and stateless persons are exempted from punishment
under the Immigration Act 1959/63 (Act 155), using Section 55 of the Act.
This is in line with recommendations of the Committee on the Rights of the
Child.
In the longer
term:
5. The
Malaysian Government must institute refugee status determination procedures, as
recommended by the CRC and CEDAW Committees, and provide protection and
assistance to these vulnerable groups. The Malaysian Government
should
also ratify the 1951 Convention Relating to the Status of Refugees
and the 1967 Protocol.
We also urge
the Malaysian Government to fulfill its promises made in October 2004
to issue IMM13 work permits to the Rohingya population. We are concerned
that this process has stalled, leaving the Rohingya community in
great vulnerability to unjust arrest and detention.
We, the
undersigned members of the Migration Working Group,
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