The term ‘refugee’ generally refers to a person who has been forced to leave their country to escape war, persecution, or natural disaster in their home country.
Recently, a refugee in Malaysia wrote to us to enquire about his legal capacity to travel and resettle himself in another country out of Malaysia.
After advising him, we felt the need to shed light on information regarding the Malaysian legal landscape in this area of the law.
Is there a Refugee Law in Malaysia?
Technically, there is none.
If at all, such law does exist under the international law regime known as the 1951 Convention Relating to the Status of Refugees (a.k.a. 1951 Refugee Convention), as well as the 1967 Protocol Relating to the Status of Refugees (‘the 1951 Convention and the 1967 Protocol’). The 1951 Convention and the 1967 Protocol were enacted by the United Nations (‘UN’) General Assembly, which is a form of treaty, or simply put, a contract, presently signed by 145 countries out of 195 countries in the world (as found in UNHCR’s publication here: States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol). The 1951 Convention and the 1967 Protocol basically outline the rights and obligations of both the refugees and the contracting countries where they were in.
Under the 1951 Convention and the 1967 Protocol, the United Nations High Commissioner for Refugees (‘UNHCR’) offices were established in most countries in the world as the mandated body to provide such protection and assistance to the world’s refugees, under and pursuant to the 1951 Convention and the 1967 Protocol.
It is worth noting that Article 1 of the 1951 Convention read together with the 1967 Protocol provide for the legal definition of a refugee as
‘A person owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.’
The 1951 Convention and the 1967 Protocol is by far the most complete piece of standalone refugee law, albeit the fact that Malaysia is not a contracting country in the international law regime and thus have no legal obligation to be bound by it. In view of that, a refugee shall be bound by section 6 of the Immigration Act 1959/63 (Act155) which states that no person other than a citizen shall enter Malaysia unless he is in possession of a valid Entry Permit on which his name is endorsed, or a valid Pass lawfully issued to him to enter Malaysia.
The Malaysia way of protecting refugee – the UNHCR Card
Notwithstanding that, the Malaysian government has since protected a significant number of refugees on humanitarian ground. Throughout the years, the Malaysian government has worked with the Malaysia UNHCR office to register refugees needing international protection by providing them a UNHCR card. A UNHCR card, however, is only meant to be identification documentation for the refugees to reduce the risk of arrest, allow access to health services, education and other essential support services from UNHCR and its related organizations.
It is essential to note that a UNHCR card is not a valid Pass or Entry Permit capable of valid entry into Malaysia in accordance to the Immigration Act 1959/63.
Pending regularization of the rights of refugees, the Malaysia UNHCR remain as the vital administrative body in determining the refugee status under the procedural standards of Refugee Status Determination (‘RSD’) as mandated by the General Assembly of UN, prior to the issuance of UNHCR card to them.
The RSD process is aimed at ensuring a person is in fact a refugee under the definition of the 1951 Convention and the 1967 Protocol. The RSD process entails the basic steps as follows:-
Firstly, the refugee applicant is required to fill up in the RSD application form and provide their personal details together with supporting documents (for instance, identity documents) at the UNHCR’s office. On a strictly confidential basis, the UNHCR officer will then conduct a registration interview to record, review and verify the applicant’s reason to leave his country.
Secondly, the RSD interview will then be conducted by the assigned UNHCR officer in charge. The applicant has to make a complete and detailed disclosure of the facts relevant to his or her claim in order for the officer to critically review against the recognized refugee status criteria.
Thirdly, the applicant subsequently be informed of the RSD result. For negative RSD decision, the reason for rejection would be clearly stated in writing and the applicant must be informed that he or she has the right to appeal against the negative decision, and is allowed access to UNHCR officer for matter relating to appeal.
Fourthly, the application to appeal must be done within 30 days after receiving notification of the RSD decision.
Lastly, should the rejected applicant fail to exercise their right to appeal, the application will be closed permanently unless they apply for re-opening of claims, which is only allowed in exceptional cases.
In the past, the Malaysian government has assisted many refugees in its own way, including the current pilot project that enabled about 300 Rohingya refugees who are UNHCR card holders to work legally in the plantation and manufacturing sector, providing them training on certain survival skills for the future. Additionally, the UNHCR also currently work with some NGOs, such as A Call To Serve (ACTS), Buddhist Tzu Chi Foundation, and Malaysian Social Research Institute (MSRI), to provide volunteer healthcare services for refugees and asylum seekers.
There is much needed political will for the government of the day to expedite the reforms in this area of the legal landscape. As what the Malaysian UNHCR representative, Richard Towle said, “The most important thing is to regularise the rights of refugees, right here, right now, through executive orders and minor amendment to regulations, there are many important practical things that can be done now without signing the convention (the 1951 Convention)”, to quote
About the Author
This article was written by Chia Swee Yik, Partner of this Firm (assisted by legal interns, Yong Yu Xian and Samantha Hah), who has provided advice on immigration law and citizenship in Malaysia.
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