Malaysian lawyers warn of dangers in refugee deal

June 24, 2011
The UNHCR says it was not informed that the Malaysia refugee swap would include unaccompanied children.

Over three nights last week, hundreds of thousands of people watched something very rare: a Reality TV show that actually showed some reality.

Australia’s public SBS television station showed a special three-episode program called Go Back To Where You Came From about the experience of six Australians (with widely varying views about refugees and asylum seekers) as they are sent on a 25-day trip to trace, in reverse, the routes that refugees have taken to reach Australia.

See also
Letter from a refugee on hunger strike: 'This system broke my heart'
Letter from a refugee: 'Thank you for remembering us'
Cruelty to refugees in the spotlight
End the live export of asylum seekers

The second episode focused mainly on the situation of refugees in Malaysia, where Australia plans to deport 800 desperate refugees who made it by boat to Australia. It confirmed, dramatically, what human rights activists and lawyers in Malaysia have warned about.

Renuka Balasubramaniam, from Lawyers for Liberty (Malaysia), attended a conference on refugees at the University of NSW on June 14-17. She also addressed a June 19 rally in Sydney to mark World Refugee Day.

She told Green Left Weekly she had little confidence in assurances by the Australian government that refugees deported to Malaysia will have special rights, such as a card to ensure that they won’t be treated like other refugees in Malaysia.

“Off the bat you can see this is discriminatory. There are 90,000 refugees who have been in Malaysia, some for many years, so how could this be justified? Is Australia promoting discrimination through this deal? What is the basis for this?

“The Malaysian government has given assurances to the Australian government that these refugees will be detained for six weeks, processed and then released into the community.

“The problem is that once they are released into the community they are liable to be arrested for any reason because it is an offence merely to be in Malaysia without any valid documentation. Frequently, we even have registered refugees arrested.

“This is a daily occurrence, due to the fact that the arresting authorities are unable to verify if the United Nations card is an authentic one or not. They are held in lockups until such time as the UN gives a verification.

“My concern is less with those arrested in Kuala Lumpur because the UN refugee office is right there. But if any of these 800 were to move to any city outside Kuala Lumpur, even in the outskirts, or the rural areas, where the authorities have not enough awareness about the situation of refugees and the cards that they hold, these refugees could end up being imprisoned or even convicted of illegal entry.”

Angeline Loh, a Malaysian human rights activist, lawyer and researcher with the human rights organisation ALIRAN, told Green Left Weekly in Malaysia in early June that at the heart of the problem was the fact that Malaysian laws simply do not recognise refugees. Malaysia is not a signatory to the 1951 refugee convention.

“Asylum seekers in Malaysia have never had any guarantee of safety in this country as Malaysian immigration laws do not recognise those granted official UNHCR refugee status.

“Our immigration law only distinguishes between documented and undocumented migrants.”

A 2010 Amnesty International report Trapped: The Exploitation of Migrant Workers in Malaysia pointed out that “irregular migrants are subjected to fines, imprisonment and deportation. Judges may and often do impose caning on migrants who are convicted of illegal entry: Nearly 35,000 migrants were caned between 2002 and 2008 …

“Caning is deeply humiliating and extremely painful. It leaves deep welts on the buttocks that take days to heal sufficiently to dress and move ordinarily without re-opening the wounds. The practice violates the international prohibition on torture and other forms of cruel, inhuman and degrading treatment or punishment.”

ALIRAN said in a June 20 statement that the “announcement by the Australian and Malaysian governments of a refugee/asylum seeker swap deal, pending further negotiations, sent a wave of anxiety among refugee communities in Malaysia. Another door had been slammed in their faces, dashing hopes of finding a safe haven …

“There are no concrete legally binding or lasting guarantees that asylum seekers and refugees will be afforded protection against human rights violations and deportation to countries where they will be at risk.”

Balasubramaniam said in her work as a lawyer she receives regular complaints from refugees of harrassment, abuse or even extortion by Malaysian officials.

“It is a regular occurrence. They all have experienced that at some point or another.”

Such allegations were documented in the 2010 Amnesty report:

“Some Malaysian immigration authorities themselves engaged in trafficking in persons by delivering immigration detainees to traffickers operating on the Thai border. Amnesty International identified over a dozen cases of individuals who were trafficked in this way, sometimes more than once, between 2006 and early 2009 …

“Migrant workers are regular targets for ill-treatment and extortion by police and agents from the People’s Volunteer Corps (Ikatan Relawan Rakyat or RELA). Police are authorised by law to investigate immigration status; RELA had the same authority until mid-2009. Both police and RELA agents frequently abuse that authority, treating stops as opportunities to make money.

“Much of Malaysia’s approach to migration is effectively to criminalise it, even though the country could not function without migrant labour. Large-scale public roundups in markets and on city streets and indiscriminate, warrantless raids on private dwellings in poorer neighbourhoods send the message that being poor and foreign — regardless of immigration status — is automatically suspicious.

“An ‘arrest now, investigate later’ approach to immigration enforcement prevails. Too often, in fact, the government’s approach targets the victims of human rights abuses rather than those who commit abuses.”

Balasubramaniam said in her World Refugee Day speech that she has a refugee client who lives in a shack he built for himself in the jungle. “He is surrounded by snakes, tigers and all sorts of wild animals but at night he is most terrified of being raided by police or RELA,” she said.

Loh said: “You either work illegally, you do odd jobs or you find a way to grow your own food. What else can you do? You either work illegally or die.

“Some go into construction work and some work in small and medium enterprises doing menial work. Some are employed in plantations as cheap labour. Sometimes they work and don’t get paid for the work.

“We’ve had such complaints and cases. But it is difficult to act for them because they have no legal rights whatsoever. We can’t take them to the labour ministry because they will be arrested for working illegally. Any contracts they make are not enforceable by law.”

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