As a member state of the United Nations Human Rights Council, Malaysia has appallingly failed to safeguard the rights of some Myanmar nationals by flouting the non-refoulement principle. In February 2021, 1,086 Myanmar nationals were deported back to Myanmar following the Malaysian Immigration Department’s instructions in defiance of a Malaysian High Court order to halt said deportation immediately pending the decision of the court. As the deportation was done concomitantly with both the ongoing pandemic and military coup in Myanmar, many expressed their concerns regarding the motive behind the deportation and the safety of the deportees, although the deportation was avowed to be a voluntary one.

As Warsan Shire concisely puts it, ‘no one leaves home unless home is the mouth of a shark’. As of the end of May 2021, there are around 179,570 refugees and asylum-seekers registered with the United Nations High Commissioner for Refugees (UNHCR) in Malaysia. Around 154,840 are Myanmar nationals,[1] representing about 86% of the group.[2]
  
On 23rd February 2021, 1,086 Myanmar nationals were sent back to their homeland by the Immigration Department of Malaysia despite the ongoing military coup and pandemic. More importantly, this was done in defiance of a court order halting said deportation.[3] In response to the public outcry, the Director General of the Immigration Department of Malaysia claimed that all the deported Myanmar nationals voluntarily agreed to be sent back, and no Rohingya refugees or asylum-seekers were amongst the deportees.[4] However, the reason as to why the deportation took place despite being stopped by the court was left unexplained.[5]

The ultimate question is why the sudden uproar on the decision to deport these Myanmar nationals — according to the track record, Malaysia has on multiple occasions exercised the right to deport individuals who violate certain laws, especially immigration laws in Malaysia.[6]

To answer this, we have to understand two items: first, the distinction between refugees, asylum-seekers and migrants;[7] and second, the Malaysian position on refugee, asylum-seeker and migrant issues.
 
I.   THE TYPICAL CONFUSION: REFUGEES, ASYLUM-SEEKERS OR MIGRANTS?
‘Refugee’ is defined under the Convention relating to the Status of Refugees (1951 Refugee Convention) as someone who is unable or unwilling to return to the country of origin owing to a well-found fear of being persecuted for reasons of peace, religion, nationality, membership of a particular social group or political opinion.[8] It must be highlighted that, unfortunately, Malaysia is not a State Party to the 1951 Refugee Convention or any other international laws relating to refugees. Nonetheless, Malaysia is a member of the United Nations (UN)[9] and is obligated to work with the UNHCR in addressing refugee issues on humanitarian grounds.[10]
 
On the other hand, asylum-seekers are persons who have left their country to seek protection in another country from gross human rights violations. However, they have yet to be legally recognised as refugees and are waiting to receive a decision on their asylum claim.[11] This essentially means that every refugee was once an asylum-seeker while waiting for their asylum claim to be approved by the UNHCR.
 
Addressing the more controversial subject, there is no one universally accepted legal definition of a migrant.[12] Oftentimes, migrants are misinterpreted to mean refugees or asylum-seekers. Amnesty International, a global human rights movement, defines migrants as people who live outside their homeland but are not asylum-seekers or refugees.[13] Some migrants left their country because they wanted to improve their future aspects of life, i.e., to work or study. It could also be attributed to the political unrest, natural disasters or other severe circumstances in their homeland.[14] Although migrants are not refugees, their human rights must nevertheless be protected in the country they moved to. They should never be detained or forced to return to their native country without a legitimate reason.[15]
 
Many often use the terms ‘refugees’, ‘asylum-seekers’ and ‘migrants’ interchangeably. Nevertheless, it is important to note the fundamental legal differences between them. First is the reason as to why they leave their homeland, as discussed above. While migrants choose to leave their homeland, refugees and asylum-seekers had no choice. Second, the protection afforded by the laws. Migrants would still enjoy the protection afforded in their homeland, but refugees and asylum-seekers do not.
 
II.  MALAYSIA’S STANCE ON REFUGEE ISSUES: DOMESTIC AND INTERNATIONAL
On top of not being a State Party to any international instruments relating to refugees, there are also currently no legislation or policies in Malaysia to deal with the situation of asylum-seekers and refugees.[16] The main organisation in Malaysia that deals with this group of people is the UNHCR which undertakes all activities from the reception, registration and documentation to determine the status of asylum-seekers and refugees.[17]
 
Refugees in Malaysia will be given the UNHCR card. However, the UNHCR card serves merely as an identity document.[18] Under Malaysian law, asylum-seekers and refugees are not legally recognised,[19] and they are allowed to remain in Malaysia only temporarily, after which they must return to their homeland or resettle in a safe third country.
 
Asylum-seekers and refugees are hardly distinguished from other undocumented migrants under the Malaysian immigration law,[20] especially if the refugees lost their UNHCR cards.[21] Without proper documentation,[22] the Director General of Immigration may remove them from Malaysia as they are considered ‘prohibited immigrants’.[23] Furthermore, refugees or asylum-seekers are deemed undesirable immigrants because, under Malaysian immigration law, they are persons removed from any country by the government of that country on repatriation for any reason.[24]
 
Whether refugees or asylum-seekers, they are nonetheless considered ‘prohibited immigrants’ under the Malaysian Immigration Act.[25] If they are arrested or detained, they must produce a valid pass lawfully issued to them;[26] or in a case of a refugee, the UNHCR card. Under the law, the burden to prove such existence of documents that they entered and remained in Malaysia lawfully is on the refugees and asylum-seekers.[27] Otherwise, the Director General of Immigration may remove them from Malaysia for committing an offence under the Immigration Act.[28] The unfettered discretion possessed by the Director General of Immigration further exacerbates the situation.[29] 
 
The international laws, however, have accorded sufficient protection to refugees, asylum-seekers and migrants. The protection is premised on the fundamental principle of non-refoulement.[30] The principle of non-refoulement prohibits States to deport individuals to a place where they are threatened with the risk of persecution.[31] Progressively, the scope of protection is widened to include asylum-seekers or migrants, albeit not those with refugee status.[32] As the non-refoulement principle becomes increasingly significant in safeguarding one from being subjected to persecution due to the State’s deportation, the international community has perceived it to be of non-derogable (jus cogens) customary international law.[33]
 
It is rather a shame that to date, Malaysia has yet to ratify any of the international human rights instruments relating to the issues of refugees. Nonetheless, Malaysian authorities are still legally bound, though not expressly, by the non-refoulement principle. Thus, it cannot be said that the deported Myanmar nationals have no legal rights to remain in the interim in Malaysia. However, does that mean that the Malaysian government must bear all costs to accept the Myanmar nationals and never deport them? The answer is a conditional NO.
 
Deportation is a viable option only if the country of destination is objectively considered ‘safe’.[34] Legally speaking, deportation is not allowed if ‘a consistent pattern of gross, flagrant or mass violations of human rights’ is found in the said country.[35] However, how do we ascertain if there is such a consistent pattern of gross, mass violation of human rights in a particular country? Cases have established a non-exhaustive list of considerations to be considered by States, among others:

• the general human rights situation in the country of destination;[36]

• the political affiliation in the country;[37] and

• the ethnic background of the migrants.[38]

 
It is also known that the human rights record in Myanmar suffered a hit when the military coup that took place in February saw hundreds of nationals killed and countless human rights violations reported.[39] On this note alone, the authors believe that even if the Myanmar nationals are illegal migrants (who are not refugees or asylum-seekers), they should not have been deported because of this possible risk of persecution in light of the ongoing military coup in Myanmar.[40] It is hard to justify the human rights situation in Myanmar as it is beyond an acceptable standard that would give rise to possibly more gross violations of human rights. It is unfathomable to visualise what is it at the waiting end for the deported Myanmar nationals if the regime is cruel enough to kill hundreds of law-abiding nationals.
 
Unfortunately, the Malaysian High Court order and the situation in Myanmar were not seen as valid reasons to halt the deportation of the Myanmar nationals. In fact, this is a huge slap to Malaysia as the Foreign Minister Datuk Seri Hishammuddin Tun Hussein Onn announced Malaysia’s candidature in the upcoming member states election of the UN Human Rights Council.[41] Malaysia’s decision to harshly deport the Myanmar nationals, arguably including refugees and asylum-seekers, was heavily criticised by the independent UN Human Rights Experts where they have termed the decision as a ‘failure to ensure due process safeguards for all migrants’.[42]
 
Was Malaysia left with no choice but to deport the migrants? The answer evidently is in the negative.
 
First, there is no mass influx of refugees or migrants. Even if faced with this deadly pandemic, Malaysia retains its ability to maintain the migrants until a ‘safe third country’ for deportation is found or the human rights situation in their homeland has improved to an acceptable standard.

Second, the UNHCR suggested three ‘durable solutions’ to help member states in addressing the issues of the mass influx of refugees or migrants.[43] Apart from repatriating migrants to a ‘safe third country’ that is willing to accommodate the migrants, two other ‘durable solutions’ include voluntary repatriation and local integration. In fact, voluntary repatriation requires two important elements to be satisfied: voluntariness for repatriation or deportation without being forced,[44] and assurance that the repatriation or deportation is a safe return and with dignity.[45] In simple terms, Malaysia is still required to analyse the human rights situation in Myanmar by assessing the risk of Myanmar nationals being subjected to persecution.
 
As mentioned above, the Director General of Immigration claimed that all the Myanmar migrants agreed to be sent back voluntarily.[46] Evidently, even if the Director General of Immigration is not wrong in avowing that the repatriation is a voluntary one, he still failed to ensure that the return is a safe and dignified one considering the deteriorating human rights situation in Myanmar. Thus, the entire repatriation is a mockery of the established international rules. Though on the surface, the decision to deport seems to be a lawful one, the assertion that the repatriation is voluntary is not backed by any persuasive evidence from the migrants themselves.
 
III.  THE SUDDEN UPROAR: INTERNATIONAL AND DOMESTIC RESPONSE
Even if Malaysia rightly decided to deport the 1,086 Myanmar nationals back to Myanmar because of immigration offences committed, why was there a sudden outrage domestically and internationally?
 
Before the deportation of the 1,086 Myanmar nationals that took place on 23rd February 2021, human rights groups such as Amnesty International Malaysia and Asylum Access Malaysia demanded the Immigration Department to disclose the number of refugees and asylum-seekers on the deportation list who were identified by the UNHCR.[47] On the 22nd of February 2021, the UNHCR claimed that at least up to six of the people to be deported were registered refugees.[48] This came in conflict with the Immigration Department’s own statements claiming that those on the deportation list were all undocumented migrants and none were refugees or asylum-seekers.[49] The Immigration Department even claimed that all deportees agreed voluntarily to return.[50] Although there is a possibility that these refugees are in the group of 114 Myanmar nationals not deported, their identities remain unclear.
 
The ultimate problem is the little transparency on the verification process of individuals to be deported and the voluntariness to be repatriated. It was reported that the UNHCR had been denied entry to visit immigration detention centres in Malaysia since August 2019.[51] Since then, the UNHCR could not have conducted detention interventions on a weekly basis to register and verify refugee status.[52]

Therefore, the reason for public outrage is many-fold, among others: the political situation in Myanmar; the pandemic; the fact that UNHCR was not given access to confirm the status of the deportees before the deportation to assure the international community that refugees and asylum-seekers will not have to face persecution back in Myanmar; and most importantly, the defiance of a court order. This court order affirmed the importance of verifying the status of the 1,086 Myanmar nationals because if it is found that this figure includes refugees or asylum-seekers, they must be afforded protection in Malaysia and should not have been deported. The 17th February 2021 report in Nikkei Asia a few days before the deportation took place cited an unnamed source in the Immigration Department of Malaysia who confirmed that it would be difficult to distinguish undocumented immigrants from refugees who have lost their UNHCR cards.[53] This report reiterated the fact that UNHCR should be given access to verify the status of those named on the deportation list.
 
If it is true that the Myanmar nationals deported did not include refugees and asylum-seekers and that the nationals had voluntarily agreed to be sent back, the decision to deport could have been suspended momentarily in accordance with the court order to verify the status of those affected and address the many allegations of human rights groups in a more transparent way. Why the rush?
 
IV.  THE WAY FORWARD: BRIGHT OR BLEAK?
The issue of refugees, asylum-seekers and migrants is no longer novel. The Malaysian government has time and time again been forced to face the issue, but each time there would still be no policies or guidelines set. This issue requires a long-term solution and not one on a periodic basis, especially when human lives are at stake. What does the future hold for refugees and asylum-seekers in Malaysia?
 
Long-term plans suggested including working with the UNHCR closely to find durable solutions to the refugees’ plight by repatriating voluntarily to their homeland, integrating into countries of asylum or ultimately, resettling in safe third countries.[54]
 
The Malaysian government must develop a solution or framework to the current issue, ensuring that refoulement will not happen in the future.
 
As of the writing of this article, the Malaysian High Court granted international human rights groups to challenge the deportation of Myanmar nationals and barred the removal of the remaining 114 Myanmar nationals who were supposed to be deported.[55]
 
Although this judicial review will unlikely bring those already deported back to Malaysia, this case would set a precedent and serve as a guide for similar challenges in the future.[56] This decision will also determine the future approach to be taken by Malaysia towards refugees, asylum-seekers and migrant issues as the court will most likely consider the application of the non-refoulement principle. It must not be forgotten that there are still many other refugees, asylum-seekers and migrants (illegal or not) in Malaysia.
 
It is high time for us to turn the bleak to bright.
 
Refugees, asylum-seekers or migrants, they are essentially you and I with different circumstances.
 
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