Monday, August 17, 2015

Foreigners or refugees? – Shaun Kang

In recent days, a certain minister had made critical comments on refugees/asylum seekers whom he loosely labeled as foreigners.

The distinction in terminology is a technical one and must be underlined. The former enjoys rights and protection under international law. The latter, as defined by the Oxford dictionary, carries the meaning of a “person born in or coming from a country other than one’s own”. A foreigner as such, is not necessarily a refugee/asylum seeker.

In essence, refugees are persons “who have a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion … who are unable or unwilling because of such fear to return to their country.“ (Article 1A, Refugee Convention).


On the other hand, foreigners may include economic migrants who come to the country merely for economic purposes.

Accordingly, not making this distinction at the outset is misleading and at best, unfortunate.

As with any civilised discourse, a courteous reply is called for. Below are a few noteworthy points in response to the minister’s statement. Excerpts of his statement are attached for ease of reference.

A. Diplomatic status and the issuance of the UNHCR card

“The UNHCR Office has no diplomatic status and they have to stop issuing refugee cards immediately."

Diplomatic status does not affect the issuance of a UNHCR card. The UNHCR is mandated to provide international protection to persons of concern. In fact, one may argue that UNHCR could potentially be held liable under international law, specifically the Articles on the Responsibility of International Organizations, for failing in its mandate to provide “international protection” to refugees, should it cease to issue refugee cards to those who fulfil the requirements.

In countries where the State is unable or unwilling to deal with the refugee issue, UNHCR’s role has been, unfortunately, to do it for or on behalf of the government – if anything, UNHCR is undertaking this task which in actual fact should be the State’s responsibility.

B. Deportation of those detained

“[The minister] want[s] the detained immigrants deported to their home countries to avoid overcrowding of camps.”

On the premise that the immigrants referred to are refugees/asylum seekers, any act of deportation by the Malaysian government is prima facie, a violation of international law.

There are a few points to note here. Contrary to popular belief, Malaysia remains bound by certain principles expounded by the Refugee Convention, even though it has not acceded to the Convention (by the fact that certain principles are today, customary international law).

Second, international law dictates, pursuant to the principle of non-refoulment, that the Government cannot forcibly return refugees/asylum seekers to a country in which they are liable to be subjected to persecution.

Third, this principle covers persons who are refugees/asylum seekers, with or without the refugee card which is merely declaratory in nature. Hence, deportation of refugees/asylum seekers is legally and morally incompatible.

C. Foreigners involved in crime

“The government does not want them involved in crimes, for example in Myanmar, to come to Malaysia obtain refugee cards through an easy interview process.”

First, not all foreigners who arrive in Malaysia, have committed crimes in their respective country of origin.

Second, as mentioned, I believe these foreigners referred to are refugees/asylum seekers, whom by status enjoy protection and specific rights under international law.

Third, it is presumptuous that UNHCR gives out cards to refugees/asylum seekers who had committed crimes in their country of origins.

Fourth, the interviews conducted by UNHCR are anything but simple. The process of refugee status determination is a complex fact-finding exercise and these are conducted by highly trained personnel with professional expertise in the area of work. Assessments are made based on well-established internal guidelines that are derived from the Refugee Convention (acceded by 146 States) and in line with international law.

D. Nation’s security and job opportunities are affected

“[T]here were complaints from the public on the flooding of foreigners, affecting the nation's security and job opportunities.”

It is unclear how issuing a UNHCR Card to refugees/asylum seekers is a threat to the nation’s security, and in what context security is being referred to. Security and jobs are indeed vital points which should not be given any less attention. However, to make such an assertion would require statistics to prove refugees/asylum seekers have threatened security and had taken away jobs which otherwise would have been filled by locals. Hence, a premature point.

E. National ppplication procedure for refugee status

"Foreigners wanting to apply for refugee status have to go through procedures as required by the laws in the country.”

At the time of writing, it appears that there are no procedures provided by any law in the country for “foreigners” to apply for refugee status. 

F. Conclusion

It is clear that prohibiting UNHCR from issuing the UNHCR cards is counter-productive and wholly unjustified. Refugee cards are the only source of identification for many refugees. It is an all too important document, without which resettlement to a third country would only be nothing more than a distant dream. I would argue that refugee cards have, in fact, assisted the Government in being able to identify and distinguish whether an individual is in Malaysia for leisure, work or to seek refuge in accordance with international law.

On that note, refugees/asylum seekers are not merely foreigners. They are persons who have fulfilled certain criteria under international law. They are unquestionably not in Malaysia on their own terms. Most importantly, they are our fellow human beings, who fled from their country for a variety of reasons, often including, torture, murder, rape, arbitrary arrests and deprivation of citizenship.

Malaysia is a member of the international community which plays by the rule of international law. It has shown its commitment to international law, most recently through its participation in proposing a motion in the UN Security Council for the establishment of a Criminal Tribunal in relation to the MH 17 incident. This commitment should extend beyond the purview of its own interest to include other areas of international law such as in addressing refugee rights.

International law is clear on this front, deportation of refugees/asylum seekers is a gross violation of international law. Certainly, Malaysia cannot draw the sword of international law in the eyes of an international forum, while trampling the sanctity of it in its own backyard. – August 16, 2015.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insider.

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