Refugee and Asylum-Seekers in Malaysia: The Consequences of Invisibility

By Inessa Wurscher

In the last several decades, Malaysia has been a significant destination for large populations of both migrant workers and refugees.[1] As of the beginning of 2018, there were approximately 153,480 refugees and asylum-seekers[2] in Malaysia in addition to between four and five million migrant workers and 12,350 stateless people registered with the United Nations High Commissioner for Refugees (UNHCR).[3] However, it is believed that there are “tens of thousands more . . . [that are] still unrecogni[z]ed.”[4] Despite this sizable migration into the country, Malaysia does not have any national refugee laws or related policy frameworks, instead “any illegal entry or stay in the country is deemed punishable by law.”[5] “Malaysia [also] makes no distinction between undocumented workers and refugees,”[6] even those who have legal refugee status through the UNHCR.[7] Consequently, “[m]ost refugees are de-facto integrated into the urban fabric of the Malaysian community as part of a larger, unregulated migrant economy.”[8] While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status.

Refugees, as well as many migrant workers, have no legal status in Malaysia, which leaves them vulnerable to several problems, including “arrest, detention, prosecution, imprisonment and other criminal sanction[s] (including caning) and deportation if not identified, registered and granted protection by UNHCR.”[9] However, even those registered by the UNHCR are not consistently guaranteed protection in practice.[10] In Malaysia, it is illegal for refugees to work, often forcing them into sweatshops and other unlawful forms of employment where there are no protections against mistreatment.[11] They are also barred from access to healthcare.[12] Additionally, these refugees also “have no legal access to public schools and cannot afford private schools, so they can only go to NGO-sponsored schools that often do not have proper resources or space.”[13] However, there are not enough NGO-sponsored schools,[14] forcing many of the children into factories and other forms of menial labor.[15]

In addition to these issues with daily life, refugees and migrant workers in Malaysia are also subject to immigration raids which often lead to detention and, in some cases, deportation.[16] In Malaysia, immigration matters are governed by the Immigration Act, under which it is a “strict liability offence for persons [to be] in the country without authorization, which could include registered refugees.”[17] The fear of arrest for being an illegal entrant, regardless of registration with the UNHCR, is widespread and affects all ages.[18] Even children are frequently arrested on their way to and from school.[19] Once detained, many of these children are “separated from their families and detained with unrelated adults.”[20]

According to Malaysian law, “foreigners suspected of entering the country illegally . . . [can] be detained for ‘such period as may be necessary.’”[21] Many of those detained were allowed in the country legally as refugees and often spend the majority of their incarceration “petitioning the guards to notify UNHCR of their whereabouts,”[22] which is “the only way to get their refugee status verified and avoid deportation.”[23] Once detained, Malaysian law does not provide for either periodic review or judicial review of the decision to detain a migrant unless the alleged violation is related to a procedural issue.[24] On average, this detention lasts around 16 months; however, it has been known to last over five years in some cases.[25]

The conditions of these detention centers are also notorious for being overcrowded and unsanitary, leading to disease.[26] Many migrants detained in these centers also do not have access to nutritious food and medical services.[27] The Malaysian Public Works Department has held several blocks in detention centers to be “’unfit and unsafe for occupation.’”[28] Furthermore, the Malaysian Human Rights Commission (SUHAKAM) has gone as far as to describe the conditions in these detentions centers as ‘inhumane.’[29] The consequences of these poor conditions became clear when it was discovered that between 2014 and 2016, 161 people, many of them foreigners, died of disease in these detention centers.[30]

Unfortunately, “Malaysia is not a signatory to the 1951 UN refugee convention and is not bound by international laws to provide refuge, asylum, jobs and education to refugees.”[31] However, Malaysia is a signatory of the UN Convention on the Rights of the Child (CRC), which does bind them to provide protection for children.[32] As a result, many of the recent projects to improve the treatment of refugees in Malaysia have focused on children, specifically in the context of detention.[33] For example, in 2015 a national action plan was created by Malaysia and UNHCR to improve detention conditions as part of the UNHCR’s Global Strategy-Beyond Detention Program.[34] The plan focused on three goals: “[e]nd the detention of children;”[35] “[e]nsure that alternatives to detention are available in law and implemented in practice;”[36] and “[e]nsure that conditions of detention, where detention in necessary and unavoidable, meet international standards.” While this plan reaches beyond the treatment of children, children’s rights are its initial basis and is the only area in which changes have successfully been implemented.[37] These changes include greater legal and procedural protections for children, especially for unaccompanied minors, as well as the development of more alternatives to detention.[38]

However, this action plan has also served as a starting point from which other agreements have been created, such as the Memorandum of Understanding between the UNHCR and SUHAKAM that was signed in August of 2017.[39]  The purpose of the agreement was to “strengthen[] and formali[ze] their long-standing cooperation on human rights issues for asylum-seekers, refugees, and stateless persons.”[40] As a result of this memorandum, Malaysia has also begun to implement several educational programs for immigration officials, such as those who work in “law enforcement and prosecution for immigration offences, policy and strategy, and management of the Immigration Detention Centre.”[41] These programs focus on providing these officials with greater exposure to human rights issues and international standards for refugee protection.[42] However, while these changes have led to positive results for refugees of all ages, problems with detention still remain and the changes have had little effect on the overall legal status of refugees and asylum-seekers in Malaysia.[43]

There are many potential solutions that have been suggested by various organizations and individuals to deal with these outstanding issues. The UNHCR has continued to push for a greater administrative review of immigration decisions while other organizations have tried to implement greater oversight of the detention facilities and of the refugee process.[44] Some people have argued that the focus should be on “improving . . . access to employment, healthcare and education” for refugees and migrants, potentially by expanding the UNHCR’s registration system that is already in place.[45] Others argue that the “’Malaysian authorities could begin . . . by ending arbitrary and indefinite detention of migrants, including refugees and survivors of trafficking.’”[46] One organization, the Malaysian Bar Council, even went as far as creating a detailed “legal and administrative framework for dealing with asylum-seekers and refugees,” known as the proposal on “Developing a Comprehensive Policy Framework for Refugees and Asylum Seekers.”[47] However, the fact remains that few of these proposals have gone as far as to suggest that refugees receive an official legal status.

While Malaysia has begun to take steps to improve the treatment of refugees and asylum-seekers, more attention still needs to be given to solidifying their legal status. As discussed above, many of the problems suffered by the refugee and migrant population in Malaysia stem from their lack of status.[48] It is this lack of status that prevents them from working and from access to education and healthcare, and ultimately leads them to being arrested and indefinitely detained.[49] Although addressing the terrible conditions at detention centers, providing access to social services, and creating frameworks for administrative and judicial review of immigration decisions will certainly improve the process, the problems faced by refugees in Malaysia are likely to continue as long as they have no legal status.  

[1] Laignee Barron, Refugees Describe Death and Despair in Malaysian Detention Centers, The Guardian, May 15, 2017, https://www.theguardian.com/world/2017/may/16/dozens-of-refugees-have-died-in-malaysian-detention-centres-un-reveals.

[2] Figures at a Glance in Malaysia, UNHCR: The UN Refugee Agency, http://www.unhcr.org/en-us/figures-at-a-glance-in-malaysia.html.

[3]Malaysia, UNHCR: The UN Refugee Agency, http://reporting.unhcr.org/node/2532#_ga=2.22234482.836529953.1520798617-1013290880.1520798617. 

[4] Barron, supra note 1.

[5] Malaysia, supra note 3.

[6] Kate Mayberry, First-Class Refugees: Malaysia’s Two-Tier System, Al Jazeera, Dec. 27, 2015, https://www.aljazeera.com/indepth/features/2015/12/class-refugees-malaysia-tier-system-151221061627431.html.

[7] Kok Xing Hui, Rohingya Refugees Find Solace in Malaysia, CNN, Feb. 25, 2018, https://www.cnn.com/2018/02/24/asia/malaysia-rohingya-refugee-school-intl/index.html.

[8] Mayberry, supra note 6.

[9] UNHCR Malaysia, National Action Plan: Malaysia, Nov. 2015, http://www.unhcr.org/en-my/5660000a9.html.

[10] Id.

[11] Melissa Goh, Rohingya Refugees Work at Unlicensed Bird's Nest Factory in Malaysia to Make a Living, Channel NewsAsia, Jan. 11, 2018, https://www.channelnewsasia.com/news/asiapacific/rohingya-refugees-work-at-unlicensed-bird-s-nest-factory-in-9852428.

[12] Id.

[13] Jueun Choi & Ifath Sayed, Refugees in Malaysia: Haunted by Memories, Pulitzer Center, Feb. 8, 2018, https://pulitzercenter.org/reporting/refugees-malaysia-haunted-memories.

[14] Id.

[15] Goh, supra note 11.

[16] UNHCR Malaysia, supra note 9.

[17] Id.

[18] Ifath Sayed & Jueun Choi, Inside Malaysia’s ‘Living Hell’ for Refugee Children, Refugees Deeply, Feb. 5, 2018, https://www.newsdeeply.com/refugees/articles/2018/02/05/inside-malaysias-living-hell-for-refugee-children.

[19] Id.

[20] UNHCR Malaysia, supra note 9.

[21] Barron, supra note 1.

[22] Id.

[23] Id.

[24] UNHCR Malaysia, supra note 9.

[25] Barron, supra note 1.  

[26] Id.

[27] UNHCR Malaysia, supra note 9.

[28] A. Ananthalakshmi, Malaysia Rights Panel Disturbed Over More Than 600 Deaths in Prisons and Detention Centers, Reuters, Apr. 4, 2017, https://www.reuters.com/article/us-malaysia-detention-deaths/malaysia-rights-panel-disturbed-over-more-than-600-deaths-in-prisons-and-detention-centers-idUSKBN1760S3.

[29] Id.

[30] Barron, supra note 1. 

[31] Goh, supra note 11.

[32] Status of Treaties: Convention on the Rights of the Child, United Nations Treaty Collection, https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4&lang=en.

[33] UNHCR Malaysia, supra note 9.

[34] Id.

[35] Id.

[36] Id.

[37] UNHCR Malaysia, Malaysia: Progress Under the Global Strategy Beyond Detention 2014-2019, Mid-2016, Aug. 2016, http://www.unhcr.org/57b587617 (hereinafter Malaysia: Progress Under the Global Strategy Beyond Detention).

[38] Id.

[39] UNHCR Malaysia, SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials, UNHCR: The UN Refugee Agency, Mar. 1, 2018, http://www.unhcr.org/news/latest/2018/3/5a9774214/suhakam-unhcr-human-rights-workshop-for-malaysian-immigration-officials.html (hereinafter SUHAKAM-UNHCR Human Rights Workshop for Malaysian Immigration Officials).

[40] Id.

[41] Id.

[42] Id.

[43] Malaysia: Progress Under the Global Strategy Beyond Detention, supra note 37.

[44] UNHCR Malaysia, supra note 9.

[45] Hui, supra note 7.

[46] Ananthalakshmi, supra note 28.

[47] UNHCR Malaysia, supra note 9.

[48] Goh, supra note 11.

[49] Id.