Report of the United Nations Working Group on Arbitrary Detention on its Mission to Malaysia (7–17 June 2010) - 8 February 2011
“…Detention under immigration powers does not seem to be in line with international human rights law. The Working Group considers that the detention of migrants should be decided upon by a court of law, on a case-by-case basis, and pursuant to clear and exhaustively defined criteria in legislation under which detention may be used. The Working Group received complaints of detainee abuse, inadequate food, water, medical care and poor sanitation in most immigration detention centres. The situation at the overcrowded Lenggeng detention centre is especially highlighted. The Working Group expresses its concern at the caning of immigrants in an irregular situation and the powers extended to the Ikatan Relawan Rakyat Malaysia (RELA) volunteer force to be present in immigration detention centres and to track down foreigners living in Malaysia without valid documents.
The Working Group also recommends that the Government change its laws and policies related to the detention of asylum-seekers, refugees and migrants in an irregular situation, so that detention is decided upon by a court of law, on a case-by-case basis and pursuant to clearly and exhaustively defined criteria; rule out systematic immigration detention of vulnerable groups of migrants; and provide in all cases for automatic periodic review by a court of law on the necessity and legality of detention, as well as an effective remedy for detainees. Lastly, the Working Group recommends that the Government of Malaysia strengthen the status, powers and functions of the national human rights institution SUHAKAM, in accordance with the Paris Principles.”
G. Detention pursuant to immigration powers
65. With regard to detention outside the context of criminal law, during its visit, the Working Group was seriously concerned by the administrative detention regime applied to asylum-seekers, refugees and migrants in an irregular situation. In a population of around 28 million, between 3 to 4 million are foreign immigrants. It is estimated that at least half of them are in an irregular situation or without the necessary documentation. Malaysia is a transit point for asylum-seekers, particularly those from Afghanistan and Myanmar. Some 90,000 foreigners have refugee status as determined by the Office of the United Nations High Commissioner for Refugees (UNHCR) and mainly live in Kuala Lumpur. A significant number of migrants from, inter alia, Bangladesh, Indonesia and Nepal also live in the country without authorization.
66. There is no special legislation relating to refugees and asylum-seekers in Malaysia, since they are not recognized as such under domestic law; indeed, current legislative framework does not even recognize the terms “refugees” and “asylum-seekers”. It is understood that any non-citizens of Malaysia entering the country without the necessary documents and permits are categorized as illegal migrants, dealt with according to the relevant laws and punished accordingly.
67. Illegal migrants are detained under the Immigration Act for the purposes of making inquiries or investigations into an offence under the law, and also for removing from Malaysia any foreigners who violate the provisions under the Act.
68. While immigrants in an irregular situation are subjected to mandatory detention under the Immigration Act, they do have some recourse to a court law. Article 5 of the Federal Constitution provides that detained persons should not be detained for more than 24 hours without authorization by a magistrate, although in the case of immigrants, this period is extended to 14 days. Migrants are detained by order of the Director General of Immigration and, under the criminal Procedure Code, by a magistrate. Detention of migrants in a prison is governed by the Prisons Regulations (2000), which contain safeguards on fundamental liberties, inter alia the rights to food, clothing, medical examination and treatment, education and recreation, the right to visits and communication.
69. The Government has not ratified the Convention relating to the Status of Refugees or the Protocol thereto. The Government has yet to put in place a national legal and administrative framework for dealing with asylum-seekers and refugees. While the Government does not restrict the access of undetained asylum-seekers to the Office of UNCHR, it does nothing to facilitate access and, as part of its immigration enforcement efforts, often arrests and detains asylum-seekers and refugees.
70. Although Malaysia is not a party to the Convention relating to the Status of Refugees and the Protocol thereto, Malaysia has fulfilled its international obligations to persons who have entered Malaysia claiming to be refugees and asylum-seekers through special arrangements on humanitarian grounds with UNHCR.
71. Persons committing offences under the immigration laws (either travelling without travel documents or committing criminal offences) are detained by the relevant authorities. However, section 8 (3) of the Immigration Act 1959/63 also sets out to determine persons categorized and prohibited from entering Malaysia. In the event, however, that such offenders are from vulnerable groups, including minors, families with minor children, pregnant women, elderly persons, persons with disabilities and other such persons, the authorities are required, on the basis of humanitarian grounds, to take all reasonable measures to treat such persons with appropriate care and attention.
72. The Working Group believes that detention of migrants should be decided upon by a court of law, on a case-by-case basis, and pursuant to clearly and exhaustively defined criteria in legislation under which detention may be used. The Government should not use immigration detention for asylum-seekers, refugees and vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, or people with serious and/or chronic physical or mental health problems.
73. In all cases, immigrants should be provided with automatic periodic review by a court of law of the necessity and legality of their detention at any time.
74. Refugees and asylum-seekers are prosecuted for immigration-related offences and may be indefinitely detained at immigration detention centres or deported. Malaysia has no laws or regulations relating to the status of refugees and asylum-seekers in line with international standards. The 24 hours allowed for the police to bring a detainee before a magistrate becomes 2 weeks in the case of a foreigner detained under immigration laws.
75. In the absence of national refugee legislation, UNHCR performs core protection functions, including registration of asylum-seekers, determination of refugee status, issuance of identification documentation and promotion of solutions, including voluntary return, local integration or resettlement in a third country. UNHCR performs these functions, however, as a result of the Government’s unwillingness to perform what are clearly State functions of asylum management. UNHCR does so in the absence of a comprehensive legal and administrative framework for managing asylum-seekers.
76. The Government believes that the issue of refugees and asylum-seekers requires commitments from all States to cooperate in addressing the problems of the mass influx of refugees and asylum-seekers faced by many countries, including Malaysia. Such commitments would need to take into account the resources available of each State and their relevant domestic laws and migration policies. States should take measures jointly to eliminate the problems that give rise to persons having to migrate from their country of origin. Apart from addressing the issue of refugees, efforts need to be made to assist the countries of origin to alleviate the root causes of why their people migrate to other countries; only then would the international community to be able address the problem of refugees and migration as a whole.
77. The capacity of the 13 immigration detention centres in the country is around 6,000 places. All centres are under the control of the Immigration Department. Approximately 10,000 people were deported in 2009.
78. The Government is working to address the issue of overcrowding, the number of detainees has been reduced to an average of 4,500 to 4,800 from the total capacity of 6,640 of all detention centres. Cooperation with non-governmental organizations and international bodies is vital to improve management of immigration detention centres. The Government is therefore working closely with the International Committee of the Red Cross (ICRC) and organizations such as Buddhist and Shelter.
79. The Government recognized that there is a need to improve conditions in immigration detention centres. It is taking steps such as by establishing a new set-up comprising personnel from various departments. The Government is also currently looking at emulating best practices in detention centre management of other countries such as Australia and the Netherlands. An additional allocation of RM100 million was recently approved by the Government to upgrade physical conditions and renovations of the centres concerned.
80. The Working Group was informed that at least six asylum-seekers and migrants had died of leptospirosis, an infectious disease, in immigration detention camps. In 2009, 14 detainees died in immigration detention centres.
81. Capacity at Lenggeng detention centre is 1,250, including a block for 250 women. As a transit place, detainees should stay for a maximum of 14 days for investigation. The Working Group found evidence of overcrowding, insufficient access to potable water, poor sanitation and inadequate medical care. Allegations were received of inadequate food and lack of ventilation. The unsanitary and overcrowded conditions facilitated the transmission of communicable diseases, particularly skin diseases. Three detainees died during the first five months of 2010. Some detainees also stated that the overcrowding often led to confrontations and fighting between the detainees, with very limited or no intervention at all from the security guards.
82. The Working Group found a 14-year-old boy who had been in the centre since June 2008. He stated that he was born in Malaysia, although his documents indicated that he was Indonesian, as both his parents are Indonesian. He was adopted by a Malaysian family after his parents returned to Indonesia in 2006. His adoptive family had not visited him since 2009. He has no bed in his cell and was uncertain about his future.
83. According to the Government, all immigrants are subject to the same criminal justice system in Malaysia; detainees may therefore challenge the necessity and legality of their detention at any time. This is a common principle of the criminal justice system in Malaysia. Migrants who are found in an irregular situation (without valid travel documents) or commit an offence are charged in court. After the sentence period has been served, migrants are kept in immigration detention centres until deportation. The Working Group reminds the Government that it is an obligation of the State to guarantee the right to safety of all foreigners when it decides to place them in detention.
84. In Sabah, concern was also expressed at the detention of foreign children whose parents had been deported.
85. Migrants found to have violated immigration laws are liable to imprisonment, substantial fines and, in some cases, caning. Since 2002, caning has been used to punish immigration offences, such as illegally entering the country. The Working Group was informed that most of the 10,000 people caned each year are immigrants in an irregular situation.
86. Upon the conclusion of its visit, the Working Group was informed that no migrant in detention was denied the necessary medical treatment.
V. Conclusions
92. Most prisons visited were found to meet international standards and regulations on conditions. This finding does not, however, apply to immigration detention centres.
100. The regime applied to migrants in an irregular situation, refugees and asylum seekers is not seen to be in line with international human rights law. Immigrants in an irregular situation arriving in the country are subjected to mandatory detention without genuine recourse to a court of law. The conditions of detention at most of the immigration detention centres visited adversely affect the ability of detainees to challenge the lawfulness of their detention. The Working Group received complaints of detainee abuse, inadequate food, water and medical care, and poor sanitation in the immigration detention centres.
101. The Working Group expresses its concern about the excessive powers granted to the non-official organization RELA, particularly its activities concerning asylum seekers, refugees and migrants in an irregular situation. The Working Group received allegations of ill-treatment and beatings by RELA militants.
103. The Working Group further expresses its concerns about the situation of overcrowding in prisons, but mainly in immigration detention centres.
A. General recommendations
105. The Government should increase its efforts to develop a human rights culture in Malaysia. The judiciary should train magistrates, judges and prosecutors in international human rights law in order to increase the capacity of applying international human rights principles and standards in the resolution of judicial cases.
106. The Government should become a party to the main international instruments on human rights, particularly the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention relating to the Status of Refugees and the Protocol thereto, the Convention relating to the Status of Stateless Persons, the Convention on the Reduction of Statelessness and the Rome Statute of the International Criminal Court.
107. The Government should also study the possibility of becoming a party to the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the Optional Protocol thereto, as well as of revising the reservations and declarations it made to those conventions to which it is a State party.
C. Concerning detention under immigration powers
117. Regardless of immigration status, nobody should be subjected to arbitrary detention or appalling detention conditions. The Government is reminded that it is its responsibility to guarantee the right to physical and psychological integrity and the right to security in immigration detention centres.
118. The Government should ratify the Convention relating to the Status of Refugees and the Protocol thereto, and put in place a national legal and administrative framework for dealing with asylum-seekers and refugees that meets international standards.
119. The Government should also rule out detention of asylum-seekers and refugees
as well as vulnerable groups of migrants, including unaccompanied minors, families with minor children, pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, people with serious and/or chronic physical or mental health problems.
120. The Government should, in all cases, provide for automatic periodic review by a court of law on the necessity and legality of detention.
121. The Government should also provide for an effective remedy for detainees to challenge the necessity and legality of detention at any time of the detention period and ex post facto, and define the circumstances.
122. As long as there is a regime of mandatory administrative detention for migrants in an irregular situation, the Government should legally define its maximum period rather than basing it on Government regulations or policy.
123. The Government should also provide for a system of legal aid for immigration detainees.
124. The Government should assume the responsibility of improving the conditions in immigration detention centres as a matter of urgency.
125. RELA, as a volunteer force, should not be used for law enforcement nor for guarding immigration detention centres.
Showing posts with label Refugees. Show all posts
Showing posts with label Refugees. Show all posts
Thursday, March 10, 2011
Report of the United Nations Working Group on Arbitrary Detention (Malaysia) - 8/2/2011
Below are selected extracts only concerning migrants in Malaysia, for the full report go here
Sunday, June 20, 2010
Can refugees work? Can migrant children get education in Malaysia? The government answers
Still thinking - whether education for all, refugee can work?
In Malaysia, there were more than 2 million documented migrants, and, in my estimate, more that 5 million undocumented migrants, of which only about 200,000 at most may be asylum seekers and/or refugees. Whilst the majority of undocumented migrants are from neighbouring Indonesia, it is estimated that there are about 700,000 undocumented migrants from Burma.
Given this fact, one must be more concerned about these undocumented migrants, their children and families. What about their healthcare, education, etc...?
From my reading of the answers:-
* Malaysia does not recognize refugees - there are undocumented migrants.
* Malaysia has no specific laws for refugees - and as such asylum seekers/refugees are all dealt as document migrants or undocumented migrants under the Immigration Act - maybe besides asking for the ratification of the UN Convention, we could ask Malaysia to have a specific Malaysian law to govern asylum seekers/refugees and their families/dependents. The Malaysian government can have their own procedure and standards on conferring a person the status of asylum seeker (temporary or permanent), or even refugee status.
* Can refugees work? Well, the government is still studying the possibility
* Can children of refugees/undocumented migrants get education? No chance for formal education in government schools, etc BUT the government is ready to work with other in providing " alternative education" - very vague answer.
The Foreign Ministry’s response to my Parliament question shows us how little the Government cares for the refugees in Malaysia. Not surprising that just three days ago, a report released by Amnesty said that Malaysia is a “dangerous” place for refugees who were often often abused, arrested and “treated like criminals”.Once again, I urge the Ministry of Human Resource to give temporary work permits to the refugees in Malaysia. This will not only help them survive while they are being processed by UNHCR, but will also help ease Malaysia’s labour shortage which is ultimately to our own benefit. Enough of the “masih mengkaji” excuse!Pertanyaan: Bagi Jawab Lisan [Question for an Oral Answer]
Daripada: YB Puan Teresa Kok Suh Sim [Seputeh]
Tarikh: 9 Jun 2010
Soalan: YB Puan Teresa Kok Suh Sim minta Menteri Luar Negeri Menyatakan bilakah kerajaan akan membenarkan orang pelarian negara asing di Malaysia untuk bekerja di Malaysia? Apakah langkah diambil oleh kerajaan untuk memberi pendidikan kepada golongan generasi kedua orang pelarian tersebut?Member of Parliament Teresa Kok Suh Sim asks the Minister of Foreign Affairs to state when the government will allow foreign refugees in Malaysia to work in Malaysia? What are the steps taken by the government to provide education for the 2nmd generation of these refugees?Jawapan:Tuan Yang Di Pertua,
Saya mengucapkan terima kasih kepada Yang Berhormat Seputeh ke atas soalan yang dikemukakan.Tuan Yang Di Pertua,
2. (sic) Untuk makluman Dewan sekalian, Malaysia bukan merupakan negara pihak kepada Konvensyen Berkaitan Status Orang-Orang Pelarian 1951 dan Protokolnya 1967 (Convention Relation to the Status of Refugees 1951 and its Protocol 1967), yang menjadi asas bagi menentukan taraf pelarian bagi seseorang individu. Kerajaan berpendapat sekiranya Malaysia menjadi negara pihak Konvensyen tersebut, dan disoking oleh faktor kedudukan geografi Malaysia yang strategik di rantau Asia Tenggara, ianya akan menjadi faktor penrik kepada individu-individu datang ke Malaysia dan menuntut taraf sebagai orang pelarian, padahal, mereka sebenarnya datang ke Malaysia atas alasan mencari nafkah.For the information of this House, Malaysia is not a party of the Convention Relation to the Status of Refugees 1951 and its 1967 Protocol, which forms the basis of determination of refugee status of an individual. The government, is of opinion, that if Malaysia becomes a party to that Convention, and considering the factor of Malaysia's geographical location that is strategic is South East Asia, it will certainly be a pull factor for individuals to come to Malaysia and claim refugee status, when in fact, they really come to Malaysia to earn a living.3. Oleh kerana tidak ada undang-undang khas bagi orang pelarian di negara ini, isu orang pelarian adalah tertakluk di bawah Akta Imigresen 1959/63 (Pindaan 2002), di mana ke semua mereka dianggap sebagai Pendatang Asing Tanpa Izin (PATI).Since there is no specific laws for refugees in this country, the refugee issue comes under the Immigration Act 1959/63 (Ammended 2002), whereby they are all considered Foreign Migrants Without Permission (PATI)4. Memandangkan orang-orang pelarian ini dianggap sebagai Pendatang Tanpa Izin (PATI), dan dengan ketiadaan dokumen pengenalan diri yang sah, ini menyukarkan pendatang tanpa izin ini memasuki alam pekerjaan. Dokumen pengenalan diri yang dikeluarkan oleh pihak UNHCR tidak diiktiraf oleh pihak Kerajaan kerana Malaysia bukan merupakan negara pihak kepada Konvensyen Berkaitan Status Orang-Orang Pelarian 1951 dan Protokolnya 1967.Considering the fact that these refugees are considered as Foreign Immigrants Without Permission (PATI), and in the absence of valid identification documents, it is difficult for these Foreign Migrants Without Permission (PATI) to enter into employment. Identification documents issued by the UNHCR is not recognized by the government since Malaysia is not a party to the Convention Regarding Status of Refugees 1951 and its 1967 Protocol.5. Saya difahamkan bahawa Kementerian Sumber Manusia masih mengkaji dengan teliti cadangan membenarkan PATI yang mendaftar dengan pihak UNHCR di negara ini bekerja secara sah di Malaysia. Ini memandangkan terdapat beberapa isu perlu dikupas seperti pentapan sektor yang benar-benar sesuai dengan mereka yang berkenaan yang terdiri daripada pelbagai warganegara, agar tidak menjejaskan peluang untuk rakyat tempatan mendapatkan peluang pekerjaan.I am given to understand that the Ministry of Human Resources is still studying thoroughly the proposal of allowing Foreign Migrants Without Permission(PATI) registered with the UNHCR to work legally in Malaysia. This is because there are several issues that have to be considered thoroughly such as the determination of the sectors that is truly suitable for them that come from various nationalities, so that it does not affect the opportunities of local citizens from getting jobs.6. Mengenai pendidikan untuk generasi kedua PATI yang mendaftar dengan pihak UNHCR pula, Kementerian Pelajaran Malaysia tidak mempunyai dasar bagi memberi pendidikan formal kepada generasi kedua PATI yang telah mendaftar dengan pihak UNJCR memandangkan mereka tidak mempunyaiu dokumen pengenalan diri yang sah. Walau bagaimanapun, selaras dengan usaha memberi pendidikan untuk semua, Kementerian Pelajaran Malaysia sentiasa bekerjasama dengan pelbagai agensi sama ada dalam kerajaan, pihak swasta dan badan-badan bukan kerajaan (NGOs) dalam menyediakan pendidikan alternatif kepada generasi kedua pendatang-pendatang yang berkenaan.On education for the second generation of Foreign Migrants Without Permission (PATI)which have been registered with the UNHCR, the Education Ministry have no policy for providing education for the 2nd generation of PATI registered with the UNHCR given the fact that do not have valid self identification documentation. However, in line with the effort to provide education for all, the Malaysian Education Ministry is always ready to cooperate with various agencies be they in government or not, the private sector and non-governments; organizations(NGOs) in providing alternative education to the 2nd generation of these migrants.Sekian, terima kasih.
Thursday, December 3, 2009
11,000 Myanmars In Malaysia Given Refugee Status By UNHCR in 2009
December 03, 2009 12:09 PM
11,000 Myanmars In Malaysia Given Refugee Status By UNHCR
By D. Arul Rajoo
BANGKOK, Dec 3 (Bernama) -- About 11,000 Myanmar refugees in Malaysia were recognised by the United Nations High Commissioner for Refugees (UNHCR) in 2009, making them eligible for resettlement in third countries, according to The Irrawaddy online portal.
Of the total, the Chin ethnic group numbered about 5,000 people, Mon 1,800, followed by Kachin and Shan at about 1,000, and other ethnic groups, while the Arakan were not recognised this year.
Irrawaddy said it was the first time that the UNHCR had recognised such a large number of Myanmar refugees who had experienced difficulties earlier this year when Thailand launched a crackdown on illegal migrants from the country attempting to enter from the Malaysia-Thailand border.
Quoting the Alliance of Chin Refugees (ACR), it said there were about 50,000 Chin currently living in Malaysia, and an estimated 20,000 had been granted UNHCR refugee status in Malaysia since 2001.
Nai Roi Mon, an official with the Mon Refugee Office (MRO) in Malaysia, told The Irrawaddy that it processed about 3,000 Mon for UNHCR refugee status.
According to the MRO, no Mon was granted refugee status in 2007, and only 500 were recognised in 2008. It estimated that there are 20,000 Mon living in Malaysia, many illegally.
"They have given favourable recognition to children under age 18, especially from families with many children but no husband. They also favour older men, over 50, as well.
"If you have a UNHCR card, if you are arrested, the UNHCR can help you during detention. This is an advantage for people who work here," Nai Roi Mon said.
Refugees from Myanmar recognised by the UNHCR may wait up to one year or longer for resettlement to third countries.
The Kuala Lumpur-based Burma Workers' Rights Protection Committee told The Irrawaddy that there were about 500,000 Myanmar migrants working in Malaysia, legally and illegally.
The portal said that at the end of October 2009, about 67,800 refugees and asylum seekers were registered with the UNHCR in Malaysia, of whom 62,000 were Myanmars.
"Many pay 18,000 Thai baht (US$500) or more to enter the country (Malaysia) illegally," it said.
-- BERNAMA
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