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(Re)Negotiating Refugee Protection in Malaysia Implications for Future Policy in Refugee Management

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(Re)Negotiating Refugee Protection in Malaysia Implications for Future Policy in Refugee Management Discussion Paper 29/2018 (Re)negotiating Refugee Protection in Malaysia Implications for Future Policy in Refugee Management Katrina Munir-Asen (Re)negotiating refugee protection in Malaysia Implications for future policy in refugee management Katrina Munir-Asen Bonn 2018 Discussion Paper / Deutsches Institut für Entwicklungspolitik ISSN (Print) 1860-0441 ISSN (Online) 2512-8698 Die deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar. The Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at http://dnb.d-nb.de. ISBN 978-3-96021-086-3 (printed edition) DOI:10.23661/dp29.2018 Printed on eco-friendly, certified paper Katrina Munir-Asen has an MSc in Human Rights from the London School of Economics and Political Science and an LLM in Immigration Law from Queen Mary, University of London. She has worked in programme management and refugee protection in Malaysia, Australia and the United Kingdom. Email: [email protected] Published with financial support from the Federal Ministry for Economic Cooperation and Development (BMZ) © Deutsches Institut für Entwicklungspolitik gGmbH Tulpenfeld 6, 53113 Bonn +49 (0)228 94927-0 +49 (0)228 94927-130 Email: [email protected] www.die-gdi.de Foreword This case study of urban forced migration in Malaysia was commissioned as part of the German Development Institute’s (DIE) project titled Reducing Root Causes of Forced Displacement and Managing Migration. This three-year project is funded by the German Federal Ministry of Economic Cooperation and Development (BMZ), and aims to deepen empirical knowledge on drivers of forced displacement and regional migration policy. Katrina Munir-Asen’s case study of Malaysian forced migration and refugee policy provides readers with a narrative of how Malaysia has absorbed and managed multiple waves of migrants and refugees, with a particular focus on the role of urban areas in resettlement. As a case study, it delves into the national policy implications for managing forced migration, highlighting both the successes and challenges faced by the Malaysian government over multiple decades of migration and refugee flows. The study provides a comparative case for analysing forced migration, supplementing work currently undertaken by the DIE in Kenya and Colombia. Critically, it provides policy-makers with a tangible example of how a middle-income country has dealt with large flows of refugees, and highlights new directions for research on the role of cities as hubs for sustainably integrating migrants and refugees. Bonn, November 2018 Charles P. Martin-Shields Acknowledgements This paper is based on both desk research and conversations with organisations and individuals in Kuala Lumpur. Asylum Access Malaysia, delivering legal services to refugees, provided comprehensive responses to key questions pertaining to this research. The International Catholic Migration Commission provided analysis on the protection situation in Malaysia and potential future trajectories. Renuka Balasubramaniam, a lawyer engaged in pro bono support for refugees, provided extensive information regarding the rule of law and how this can be used in widening the protection space in Malaysia. The UNHCR contributed various factsheets and statistics and tangible information on current ways of working. The author is grateful to all those who provided invaluable information to better understand forced migration issues in the Malaysia context. This author also benefited from the invaluable comments and feedback on previous drafts from Jörn Grävingholt, Jana Kuhnt, Julia Leininger and Irene Schöfberger. Particular thanks goes to Charles Martin-Shields, who provided exceptional support in the editing of this paper. Any errors or omissions remain the responsibility of the author. Bonn, November 2018 Katrina Munir-Asen Contents Foreword Acknowledgements Abbreviations Executive summary 1 1 Introduction 5 2 Refugees in Malaysia: History and drivers of flight 6 2.1 Malaysia and migration 6 2.2 Refugees in Malaysia – a brief history of policy and practice 7 2.2.1 Humanitarian imperatives and religious factors in integration 8 2.2.2 Labour shortages and refugees 9 2.3 Drivers of contemporary flight 10 2.3.1 Myanmar: The largest sending country 10 2.3.2 The wider Malaysian refugee community 12 3 Refugees in Malaysia: Legislation, policy and practice 13 3.1 Legislation 14 3.2 Policy and practice 15 3.3. Government change: Future trajectories 17 4 Malaysia: Urban refugees and a destination of choice 18 4.1 The urban environment: Informal protection and its challenges 18 4.2 Implications for urban refugee policy 21 5 Conclusions: Policy implications and recommendations 23 5.1 Policy implications and recommendations 23 References 27 Figures Figure 1: Mixed migration flows: Southeast Asia 10 Abbreviations ASEAN Association of Southeast Asian Nations CBO community-based organisation CBP community-based protection KL Kuala Lumpur MCP Malaysian Communist Party MOHA Malaysian Ministry of Home Affairs OHCHR United Nations Office of the High Commissioner for Human Rights POC persons of concern PK Pakatan Harapan RCF Regional Cooperation Framework RSD Refugee Status Determination SGBV sexual and gender-based violence SUHAKAM Human Rights Commission of Malaysia UMNO United Malays National Organisation UNHCR United Nations High Commissioner for Refugees (Re)negotiating refugee protection in Malaysia: implications for future policy in refugee management Executive summary Malaysia provides an interesting case study of the challenges of refugee integration, and the considerable implications of a country continuing to host refugees outside a refugee law framework and without a consistent refugee policy. The Malaysian government has not signed the 1951 United Nations Convention Relating to the Status of Refugees, nor its 1967 Protocol (hereafter, in unison, the Refugee Convention), and is therefore under no obligation to comply with the substantive provisions of it. It has implemented neither relevant legislation nor consistent policy measures to (a) administer refugee status or (b) adequately meet refugees’ protection needs. Consequently, with the tacit agreement of the Malaysian government, the United Nations High Commissioner for Refugees (UNHCR) carries out a significant role in the provision of protection activities in the country, along with civil society groups, non- governmental organisations (NGOs) and community-based organisations (CBOs). This paper examines the policy context for refugees in Malaysia, unpacking (a) key challenges faced by refugees in the country, (b) the lessons that can be learned from current ways of working with refugees in non-camp/urban settings, and (c) how policy measures can be strengthened to most effectively protect refugees in the medium- to long- term and, essentially, to foster integration. As of August 2018, over 160,000 “persons of concern” (POCs) were registered with the UNHCR Malaysia, through their offices in Kuala Lumpur (hereafter, KL) (UNHCR, 2018c). The organisation believes a further 20,000 are awaiting registration (UNHCR, 2018b). The vast majority registered are from Myanmar (86 per cent), of which the Rohingya, a stateless minority from Myanmar, are the largest cohort. Refugees reside within the general population, often moving to find employment opportunities and community support, predominantly in urban areas. Seventy-five per cent of those registered with UNHCR lived in either KL and its surrounding state, Selangor, in Pulau Pinang or Johor – all urban or peri-urban centres. Malaysia’s approach to refugees has been ad hoc. In the mid-1970s Malaysia granted asylum both to Vietnamese refugees following the aftermath of the Vietnam War and to those fleeing from Mindanao in the southern Philippines. In both cases, refugees were, at least initially, housed in camps and provided with basic necessities administered by the UNHCR. The Vietnamese were ultimately repatriated, while those from Mindanao were provided residency permits and permitted to stay indefinitely. Similarly, ethnic Chams fleeing Cambodia in the 1970s and Bosnians coming to Malaysia in the 1990s were provided the option of residency, and Acehnese fleeing ethnic violence in Indonesia were also provided temporary residence in 2005. Though these are examples of a seemingly generous refugee policy, the application of it has been inconsistent – dependent on social, economic and political factors. For instance, Rohingya, who began arriving in the early 1990s, were not granted residency rights and are still considered illegal under Malaysian immigration law. Though, the Malaysian government has provided temporary asylum, including work and study rights to 1,000 Syrians, the large majority of refugees in the country do not have access to these rights. In an attempt to ease refugees’ position somewhat – and without amending Malaysian immigration law – an Attorney General’s Circular in 2005 provided a degree of immunity German Development Institute / Deutsches Institut für Entwicklungspolitik (DIE) 1 Katrina Munir-Asen from prosecution for illegal entry for all asylum seekers and refugees registered with the UNHCR. Similarly, steps have been taken to prevent detention of asylum seekers and refugees through establishment of an online database of all those registered with UNHCR, consulted, upon
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