U.S. Committee for Refugees and Immigrants World Refugee Survey 2006 - Malaysia

Refoulement/Physical Protection

Malaysia deported more than 20 Rohingya refugees to Myanmar during 2005. In April 2006, it deported 31 recognized Chin refugees, including two pregnant women. Additionally, more than 400,000 migrant workers, some of whom were likely asylum seekers, left the country in the run-up to an announced crackdown on illegal immigration in March. Malaysia did offer protection to 130 Thai Muslims out of 131 who fled across the border in August, despite pressure from Thailand to extradite them for questioning about the insurgency in southern Thailand. Out of that group, Malaysia turned one asylum seeker over to the Thai Government for questioning about the theft of 400 weapons from a Thai military depot.

Other refugees were victims of constructive refoulement, opting for deportation due to poor conditions in immigration detention centers. More than 200 refugees who accepted deportation to Thailand returned to Malaysia during the year and re-approached the Office of the UN High Commissioner for Refugees (UNHCR). Thailand turned several of the deportees directly over to Myanmar whose authorities immediately beat one of them.

Malaysian authorities simply left some deportees that Thailand did not send back to Myanmar but handed others to agents of traffickers or smugglers. Agents sometimes held these and others they captured for ransoms of about $135 to $180 (500 to 650 Ringgit) or smuggled them back into Malaysia for higher fees $380 to $490 (1400 to 1800 Ringgit). Traffickers often sold those not able to pay to Thai fishing boats, in the case of men, or brothels, in the case of women.

Authorities did allow UNHCR to interview detained refugees for resettlement, but receiving countries did not provide nearly enough places for those in danger of refoulement.

The Government had no mechanism for granting asylum or registering refugees. UNHCR handled all refugee status determinations in Malaysia and issued plastic, tamper-proof cards to those it recognized as refugees. It gave Muslim Acehnese from Indonesia and Rohingyas from Myanmar temporary protection as groups, interviewing asylum seekers to establish their ethnicity. UNHCR performed individual status determinations for other asylum seekers, granting refugee status under its mandate. Refugees with group status were not eligible for resettlement, but if the authorities arrested and detained them, UNHCR gave them full interviews making those that passed eligible.

As UNHCR had no presence at the border, most asylum seekers had to travel to Kuala Lumpur for determinations. UNHCR conducted mobile registration exercises in areas with high concentrations of refugees, but these were insufficient to meet the need. UNHCR reported processing about 1,500 cases a month, but had a backlog of 13,000 Christian Chin from Myanmar as of March 2006. Chin asylum seekers reported waiting more than two years for interviews.

UNHCR reported improved cooperation from the Government on refugee protection in 2004-05. In late 2004, the police issued orders protecting those with UNHCR papers from arrest and detention. The Attorney General gave instructions in September 2005 that refugees already registered with UNHCR at the time of arrest should be exempt from prosecution on immigration offenses. By the end of the year, refugees with UNHCR cards were generally safe from arrest. Asylum seekers were still subject to arrest, as police did not always recognize the letters they received from UNHCR.

Malaysia's foreign minister announced in December that Malaysia would not have an "open door" policy towards asylum seekers, but would consider their humanitarian needs on a case-by-case basis. Malaysia had no refugee law and its 1959 Immigration Act (amended 2002) made no distinction between refugees and illegal immigrants. The Government had permitted some 65,000 Filipino Muslim refugees from the Moro insurgency of the 1970s to remain in Sabah Province. The Government did not grant them citizenship, however, rendering their children stateless.

Raids by immigration authorities or the its volunteer auxiliary, RELA, sometimes injured or killed fleeing refugees and asylum seekers. RELA members received bounties for the arrests they made. In January 2006, the bodies of five migrant workers, at least one of them Myanmarese, turned up in a lake following a raid in which RELA participated.

Following the August signing of a memorandum of understanding between the Free Aceh Movement and the Indonesian Government, Acehnese refugees began returning voluntarily. There was no formal process for doing so, and many had to purchase false passports to return.

Detention/Access to Courts

At year's end, 800 refugees and asylum seekers were in immigration detention on charges of illegal entry or illegal stay in Malaysia – including 120 women and children. Six hundred of the detainees were Myanmarese, including 400 ethnic Chin. During the year, UNHCR secured the release of 1,700 persons of concern from detention, 200 from immigration detention, 300 from prisons, and 1,200 from police lock-ups. This was a marked increase from 2004, when it secured the release of only 200. Otherwise, Malaysia generally held detainees until they agreed to be deported. In August, the Attorney General issued orders not to initiate any new prosecutions for immigration violations of asylum seekers and refugees holding UNHCR papers. Around 44,000 refugees held UNHCR documents at year's end, with 15,000 new applicants during 2005. More than 9,000 migrants rounded up during the crackdown were still in detention at year's end, mostly Indonesians. Malaysia confined the Thai Muslim asylum seekers in a detention facility but allowed UNHCR to interview them.

In July, authorities arrested 68 Myanmarese refugees and charged them with illegal assembly, illegal immigration, and disobeying orders when they protested outside the Myanmarese Embassy on the 60th birthday of Aung San Suu Kyi. They released 2 in early January 2006, while 27 admitted to the offenses and remained in immigration detention awaiting deportation or resettlement, and 39 remained in police custody with a March 2006 court date.

Detention centers for illegal immigrants were overcrowded, and detainees received insufficient food and health services, poor sanitation, and abuse from guards. These conditions contributed to the death of at least one detainee during 2005. Refugees also contracted tuberculosis while in detention, which barred their resettlement. In January 2006, a Timorese detainee died in detention after nine months of confinement. In November, 200 Indonesian and Pakistani detainees attacked guards with rocks and bricks and demanded to be deported.

UNHCR and the Human Rights Commission of Malaysia (SUHAKAM) were able to visit detention centers, but the Government did not generally permit ICRC, nongovernmental organizations, or the media to visit prisons or monitor conditions. Refugees could challenge their detention if they had legal representation, but most had no opportunity to ask for legal representation and/or could not afford legal fees. UNHCR provided refugees with volunteer lawyers, but as Malaysia had not ratified most relevant human rights accords their arguments were rarely successful. Additionally, authorities did not permit detainees to make phone calls upon arrest, so they generally had to bribe a police officer to be able to inform anyone of their arrest.

Amendments to the Immigration Act in 2002 provided for up to five years imprisonment, along with whipping up to six strokes, and fines of about $2,700 (10,000 Ringgit) for violations. Authorities held many detainees for more than a year.

Freedom of Movement and Residence

Refugees and asylum seekers recognized by UNHCR enjoyed some freedom of movement, although government harassment, extortion, and detention still occurred. Authorities still arrested those without documentation while they were trying to move about the country and during immigration raids conducted house-to-house.

The Immigration Act prohibited renting housing to undocumented migrants, calling it "harboring." Although they had no legal right to do so, refugees resided where they could find jobs and were under constant threat of arrest. Many Chin refugees lived in makeshift camps in the jungle, near construction sites or other places of employment. The law generally confined Filipino Muslim refugees to the designated area of Sabah.

Refugees did not have access to international travel documents, except for those who received documents from countries of resettlement.

Right to Earn a Livelihood

Malaysia did not, in general, allow refugees to work, but there were several exceptions. It continued to allow Filipino Muslims in Sabah to work as it had for some time. Starting in August, the Government issued between 32,000 and 35,000 work permits to Acehnese refugees and migrants, also Muslims, which also legalized their stay in the country. As the Government allowed the Acehnese community to handle the process, rather than UNHCR, not all of the refugees recognized by UNHCR received the permits. The permits cost between $44 and $50 (162 and 180 Ringgit), were valid for two years, and were renewable. They did not permit the refugees to engage in "trading," but did allow them to work, attend school, and live in the country legally. The Government announced that Rohingyas from Myanmar, also Muslims, would be eligible for work permits, but did not begin to register them by year's end. In the past, Malaysia also allowed Cambodian Khmer Muslim and Bosnian refugees the right to work. Other refugees, including Christian Chin from Myanmar, did not enjoy these exceptions.

The Immigration Act penalized employers of illegal immigrants and authorities often raided workplaces and arrested illegal workers. Many worked in the informal sector without legal protection, where authorities harassed them and extorted money under threat of arrest. Malaysia also did not allow refugees to hold title to or transfer business premises, farmland, homes, or other capital assets.

Foreign workers with legal permits could theoretically join unions, but the Immigration Department placed conditions on their permits that effectively barred them from doing so. The permits of most foreign workers tied them to single employers, although this was not the case with the permits given to Acehnese refugees. In April, the Malaysia Trade Union Congress resolved to advocate for full work rights for migrant workers and refugees, including an end to the one-employer rule.

Immigrant workers in construction and other sectors, especially those without legal status, generally could not use the national system of labor adjudication. If employers dismissed foreign workers for any reason, they lost their permits, their legal right to remain in Malaysia, and their right to pursue legal action against abusive employers – despite court requests that the Immigration Department grant them visas to do so.

Public Relief and Education

Despite having ratified the Convention on the Rights of the Child, Malaysia did not provide primary education or free health services to most refugee children or asylum seekers – not even those born in Malaysia. A Rohingya community-based school enrolled about 65 children, but thousands remained unschooled. Filipino Muslim refugees in Sabah generally received public assistance, although some children were not able to attend classes due to severe overcrowding.

The Ministry of Health declared that government hospitals would charge refugees with UNHCR cards half the standard rates for foreigners, but this was still higher than the rates for nationals and it had not fully implemented the policy by year's end. Other than this, authorities provided no medical care, public relief, rationing, or assistance, but did permit independent humanitarian agencies to assist refugees. Police conducted surveillance of local NGOs who helped asylum seekers and refugees, but allowed them to continue their work.