Written by Wallace Kew JiaRong and Chia Jia Xuan, third-year Bachelor of Laws students from Universiti Malaya.
Edited by Cheng Xin Miao.
Reviewed by Chelsea Ho Su Ven.
This article aims to shed light on the plight of refugees mounting from their dearth of legal status in Malaysia. Refugees in the country often find themselves in a vulnerable state. On one hand, they face potential salary reductions and other forms of exploitation from their employers. On the other hand, refugee children are deprived of their rights to formal education — the gateway to a brighter future, a chance to meliorate their life quality. Yet, when faced with iniquity, they are unable to defend themselves by legal means as they risk detention and deportation for their illegal immigrant status.
I. DEFINITION OF REFUGEES IN MALAYSIA
A refugee, according to the United Nations High Commissioner for Refugees (‘UNHCR’), is a person who is situated outside their country of nationality or habitual residence and is unable or unwilling to return to their country of origin — owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion.
In short, refugees are asylum seekers with a broken past; some have been forced to flee from their war-torn homeland, while some whose home country was struck by natural disasters. They travelled far away from home to a foreign nation in hopes of a more proper shelter and more peaceful life. Yet, the irony for those who have escaped to Malaysia is that they are now situated in a vulnerable and unguarded position, wherein they are susceptible to arrests made by immigration officers and exploitation by employers, amongst others.
II. CONVENTION RELATING TO THE STATUS OF REFUGEES 1951 AND PROTOCOL RELATING TO THE STATUS OF REFUGEES 1967
Remarkably, Malaysia has no specific laws governing the right and status of refugees. Thus, international treaties such as the 1951 Convention Relating to the Status of Refugees (‘the 1951 Convention’) and the 1967 Protocol Relating to the Status of Refugees (‘the 1967 Protocol') shall be the primary documents of reference in this article to better scrutinise the actual rights enjoyed by refugees. Regrettably, as Malaysia is non-signatory to these comprehensive and holistic legal treaties, they are not legally binding upon Malaysia. Accordingly, refugees here have no legal status, nor do they enjoy the protection and rights afforded by such documents. This can be observed under Section 6(1) of the Immigration Act 1959/63 (‘IA 1959/63’), which provides that no person other than a citizen shall enter Malaysia unless he has a valid Entry Permit issued to him under Section 10 or his name is endorsed upon a valid Entry Permit in accordance with Section 12, and he is in the company of the holder of the Permit, or he is in possession of a valid Pass lawfully issued to him to enter Malaysia.
The legal position of refugees in Malaysia was addressed in Subramaniyam Subakaran v Public Prosecutor, where these individuals were held to be legally obliged to adhere to Malaysian domestic laws, including the IA 1959/63. General obligations of a refugee towards the country of refuge would include conformity to the domestic laws, regulations, as well as measures taken by the said country for the maintenance of public order. For instance, a refugee caught participating in a raid may be convicted under Section 6(3) of the IA 1959/633 despite being a non-citizen of Malaysia. With such analysis, it should be acknowledged that the IA 1959/633 was not made with the intention of suppressing the refugees, but rather to govern immigration-related affairs as provided under the preamble.
III. CURRENT POSITION ADOPTED BY THE MALAYSIAN GOVERNMENT WITH REGARD TO THE ACCEPTANCE OF INCOMING REFUGEES
In the past, various forms of assistance were offered by the Malaysian government in their pursuit of better protecting refugees. One of them would be their collaboration with UNHCR officers to register refugees through the issuance of UNHCR cards (identity documentation that facilitates one’s contact with the officers-in-charge and offers a level of protection which reduces risks of detention and deportation). Intriguingly, reliance was placed not on the UNCHR’s treaty, but on humanitarian grounds instead. This implies the Malaysian government’s generosity in aiding the refugees to adapt themselves to the new environment in our country. Nevertheless, what led to the surmise of the refugees having a lower level of social adaptation was ultimately the non-recognition of the refugees by Malaysia in the first place. This concerning observation was raised in the research conducted by Assoc. Prof Diana from the University of Malaya (‘UM’) against Afghan refugees residing in Malaysia.
While it is true that the Malaysian government had taken several admirable initiatives and exercised due diligence to improve the living quality of refugees, the authors humbly submit that these past endeavours should not be the end of recognising the refugee statuses in Malaysia, as they are sorely insufficient to guarantee the basic rights of refugees. For instance, the effect of UNHCR cards is limited, as they merely act as identity cards for asylum seekers and refugees to demonstrate their status. They do not hold legal value in our country, nor do they serve as a legally enforceable entry permit or passport under the IA 1959/63. This was affirmed by the Ministry of Home Affairs, Malaysia, when they referred to them as ‘illegal immigrants holding UNHCR cards in the country’ in announcing the non-recognition of the Rohingyas’ status as refugees. Aside from the lacklustre effect of such cards, the authors find it infuriating that there is still a lack of formal status agreements for UNHCR to work towards registering, documenting, or recognising the status of refugees in the country despite their time-honoured presence of over 40 years herein.
Notably, these adverse impacts are partly due to the reluctance of the Malaysian government in recognising the status of refugees herein. For this, refugees will remain in a hazardous environment where they constantly fear getting arrested while working without legitimate permits. This is especially so amidst the Coronavirus disease (‘COVID-19’) pandemic, as a UNHCR card may not necessarily guarantee them sufficient protection against raids. This was illustrated in the case of Tun Naing Oo v Public Prosecutor, where the applicant, an asylum-seeker from Myanmar, was arrested during an operation carried out by the immigration officers. At the time of his arrest, the applicant was selling and repairing computers and accessories in a shop. Upon appeal to the High Court, a punishment of 100 days' imprisonment was imposed onto him, and UNHCR was ordered to have him resettled in another country. It is with a heavy heart the authors observe that the refugee was still denied a place of residence in Malaysia, even upon his release from imprisonment. The court in this case, however, did recall the statement made by the then honourable Attorney General of Malaysia, Tan Sri Datuk Seri Panglima Abdul Gani bin Patail, in a 2005 News Straits Time newspaper excerpt:
‘Malaysia accorded humanitarian treatment to immigrants and exercised care, although the immigrants had committed an offence under the immigration Act by entering the country illegally. He also said that prosecution was not a priority for the authorities because if all the cases involving thousands of detained immigrants were taken to court, the prisons would be filled.’
Seemingly, such reassurance is a welcomed march towards better treatment of refugees, but to the authors’ dismay, the ruling party Perikatan Nasional (‘PN’) had since reversed such advancement by banning UNHCR from providing legal aid to refugees. Alarmingly, such a withdrawal was seemingly supported when the government authorities chose to reject 27 crowded boats bearing Rohingyas into the Malaysian borders.
IV. RIGHTS OF REFUGEES UNDER EMPLOYMENT LAWS IN MALAYSIA
In this part of the article, the authors scrutinise the issue of whether refugees are entitled to the equal protection of employment laws in the event of employment-related disputes.
Historically, many ruthless businesspersons would take advantage of the vulnerability of refugees by paying them far below the minimum wage, perhaps even less than half of what they deserve. They are well aware that their employees, as refugees, could not possibly seek legal recourse, since they were not engaged through proper employment contracts. Furthermore, refugees are not adequately protected under the Workmen’s Compensation Act 1952 (‘WCA 1952’), as no compensation would be paid by the employers to the refugees in the event of any work-related injuries. As such, refugees have very limited capacity to enforce their rights in the workplace.
However, as time progresses, several forms of legal recourse have been made available to refugees in cases of unlawful dismissal. They may seek gainful employment and, upon doing so, avail themselves of the protections provided under the Employment Act 1955 (‘EA 1955’). EA 1955 applies to all workers and migrant workers — affording both documented and undocumented workers the legal capacity to uphold their rights against infringements by making a claim in the Industrial Courts.
This was illustrated in Ali Salih Khalaf v Taj Mahal Hotel, whereby the claimant, a UNHCR refugee categorised as an undocumented worker, had been unlawfully dismissed from his job at a hotel. Despite his refugee status, he had the right to file a claim against the hotel by virtue of Section 20 of the EA 1955 for unjust dismissal. Such a decision was made based on the phrase ‘any person’ in Section 2 of the Industrial Relations Act 1967 (‘IRA 1967’) that was interpreted widely enough to encompass a refugee. Secondly, the right to life guaranteed under Article 5 of the Federal Constitution (‘FC’) can be interpreted as to include the right to seek and be engaged in lawful and gainful employment. Thirdly, Article 8 of the FC uses the word ‘persons’ instead of ‘citizens’, implying that rights guaranteed under our constitution equally extend to all persons — including documented and undocumented migrant workers. In the authors’ view, the definition of ‘persons’ would similarly include ‘refugees’. Having recognised the claimant as a workman, the court decreed that he was dismissed without just reasons, and thus compensation in lieu of reinstatement and back wages were awarded. In coming to such a decision, an interesting part of the judgement which reinstates the refugee’s right to work in Malaysia reads as follow:
‘As we are aware in the year 2013 (mid) the Government of Malaysia through the Ministry of Home Affairs has made work legal for refugees and all asylum seekers in Malaysia. Today such refugees and asylum seekers have a legal recourse if they get caught in any exploitative situations with employers…. Previously however Malaysia did not recognise the rights of refugees to have the right to work. But does that mean that such refugees as in the case of the claimant could not seek gainful employment and if they did could not avail themselves to the protection of the Employment Act 1955 and Industrial Relations Act 1967 if they were unlawfully dismissed? My answer is no, they are protected and can seek the protection and claim to be reinstated under the Industrial Relations Act 1967.’
Nevertheless, several hidden and potential predicaments are unfortunately still in place — from language barriers, expensive legal representation fees, to the risk of deportation during the commencement of the lawsuit, as the defendant employer would predictably terminate the claimant employee’s work permit. Not every refugee is fortunate enough to be represented before the court, let alone be compensated for unjust dismissal.
The million-dollar question that arises then would be, are there any alternative routes that may be taken to overcome such a depressing issue? At the outset, it must be noted that had Malaysia taken the initiative to become a signatory of the 1951 Convention and the 1967 Protocol, the rights of refugees would be statutorily safeguarded, especially employment rights that guarantee receipts of salaries. More eminently, the Parliament may then ratify such treaties to bestow legal status upon refugees locally, to empower them to enter into legally enforceable employment or business contracts.
Alternatively, Malaysia may opt to become a ‘resettlement country’ to allow for permanent resettlement of the refugees, subject to mandatory prerequisites. Resettlement is defined as ‘transfer of refugees from an asylum country to another State, that has agreed to admit them and ultimately grant them permanent residence’. The authors proposed for the resettlement conditions to resemble the immigration requirements as seen in the Malaysia My Second Home (‘MM2H’) Programme. MM2H programme is a programme launched by the Malaysian government to permit foreigners who satisfy the criteria set to reside in the country for a long period of time. However, such resettlement conditions must not be far-fetched and unachievable to the extent where it would defeat the initial intention of the resettlement policy — to assist the resettlement of working-class immigrants.
Moreover, Refugee Status Determination (‘RSD’) which was defined as a process by which governments or UNHCR determine whether a person seeking international protection is considered a refugee under international, regional, or national law. Incidental to that, the government authorities may elect several representatives to filter potential applicants out of the pool of refugee applicants during the RSD interview, and eventually select the beneficiaries under such resettlement policy.
Though foreign employees working in Malaysia now enjoy protection from unlawful withholding of salaries and mistreatment among others under the EA 1955, this does not necessarily apply to refugees — especially after considering the literal wordings of the definition of employee, which discludes ‘refugees’. Without expressly including refugees as ‘employees’ under the legislation, they are susceptible to exploitation and harassment in the workplace, notwithstanding the wise judgment by the Industrial Court in the case of Ali Salih Khalaf. In the authors’ humble opinion, necessary amendments to the EA 1955 are required to extend such protection to refugees, particularly through the inclusion of ‘refugees’ within the definition of ‘employees’ under the EA 1955. However, such an inclusion would indirectly denote the recognition of the status of refugees by Malaysia. Thus, the very first step to alleviate the predicaments encountered by refugees would be the ratification of the 1951 Convention and the 1967 Protocol. The authors believe that such amendments would place our country and the refugees in a win-win situation, for the latter would be able to contribute largely to Malaysia’s economy and industry’s development with their employment rights guaranteed.
As a matter of fact, the Malaysian government had previously undertaken the issuance of work permits and provision of training for refugees residing within Malaysia, but they have reneged on their promise. It is now high time for the Malaysian government to express their sincerity in tackling the humanitarian concerns of refugees by initiating effective collaborations with non-governmental organisations (‘NGOs’) and UNHCR to provide training and implementing employment policies to equip refugees with the necessary skills before joining the labour force. This would eventually promote fair competition between refugees and local candidates in the labour market, especially during the pandemic where the employment rate is extremely low.
V. RIGHT OF EDUCATION FOR REFUGEES
In the borrowed words of Langston Hughes: ‘Hold fast to your dreams, for if dreams die life is a broken-winged bird that cannot fly’. Truth is, ‘broken-winged bird’ is a reality for refugee children in Malaysia.
Sheila is a 17-year-old refugee child who sought asylum with her family in Malaysia since 2009. She aspired to be a physiotherapist, but she was unable to enrol at the local government school. Her younger brother David, who dreamed of being an engineer, shared the same fate — denial of their right to education for their illegal status. Consequently, the only education that they could receive is of informal nature, at the church or refugee school, where only a handful of subjects are taught.
Sadly, the plight faced by Sheila and her brother is not uncommon. According to the UNHCR, among the hundred thousand refugees in Malaysia, 25,499 are minors, with 23,823 consisting of school-going ages. By the end of October 2021, the number of minors had increased to a whopping 45,870. The exact figure for those of school-going age is unclear, but it was found that only 30% was enrolled in community learning centres.
As stated in the Universal Declaration of Human Rights (‘UDHR’), education is one of the fundamental human rights alongside economic, social, and cultural rights. Article 26 of the UDHR provides that everyone shall have the right to free and compulsory education, at least for elementary and fundamental stages. In the 1980s, world leaders came to a consensus that a special convention for children under 18 years old is imperative to safeguard their indispensable need for special care and protection. Thus, the Convention on the Rights of the Child (‘CRC’) became the first legally binding international instrument on 2nd September 1990 to incorporate the full range of human rights, in the context of children, and Malaysia acceded to this convention on 17th February 1997. Nonetheless, the Malaysian government’s reservations on Article 28 of the CRC — the right of every child to free and compulsory primary education — remains to date.
In 2002, the Government amended the Education Act 1996, making primary education compulsory. Besides, monetary aids and other forms of assistance have also been afforded to the eligible children. Yet, the incompatibility of domestic laws with the CRC remains unresolved, particularly on the lack of legislative and administrative laws for child refugees, hence depriving them of their rights to formal and government-funded education.
As Malaysia does not grant jus soli (birthright citizenship), the statelessness of refugees will be ‘inherited’ by their children. The only accessible path of knowledge for refugee children is through programs offered by UNHCR, NGOs, or community-based organisations. According to UNHCR’s statistics, there are approximately 133 community-based learning centres throughout the nation that provides informal parallel education.
However, there exist significant flaws within these informal education programs in terms of resources, teachers, and certifications. As of September 2017, only 128 among approximately 700 teachers in community-based learning centres are compensated under the Teachers’ Compensation Programme provided by UNHCR. The arduous teaching load — educating large groups of students of various ages, psychosocial needs, and learning abilities — followed by the minimal to no compensation inevitably contributed to a high teacher turnover. This would subsequently destabilize the supply of teachers, and inevitably, money invested into teacher training would go to waste.
The Committee on the Rights of the Child had in their Concluding Observation urged the Malaysian government to take necessary measures to ensure the accessibility of refugee children to free and formal primary, secondary and other forms of education, as well as official examinations. Sadly, Malaysia has yet to accept such recommendations. To date, there exists the non-recognition of informal education, the lack of certified education, inaccessibility to public examination, and the fact that refugee children have next to no chance of pursuing tertiary education. They can only rely on memorandums of understanding signed between UNHCR and some six private universities in hopes for enrolment, whereupon a prohibitive cost would await them. Although scholarships are offered, there are extremely limited placements. These considerations effectively deter refugee parents from sending their children to community-based learning centres.
This is demonstrated and fortified by a study conducted by Júlia Palik wherein it was found that Rohingya parents often consider education to be of secondary significance to being employed. A stark contrast between primary and secondary level education enrolment is also observed, with a 44% enrolment turnout at the primary level as compared to a mere 16% at the secondary level. On this note, other factors such as financial incapacity also hinder their advancement into secondary education which is, considerably, a luxury. But to force refugee children into the workforce at such a young age would most certainly expose them to a higher risk of unfair treatment, abuse, violence, or injury in the workplace.
In this regard, the authors suggest that the Malaysian government unhand its reservations on Article 28(1) of the CRC on the right to free and compulsory education for all, regardless of the child’s legal status, at least on the primary level. Gradual advancement to the secondary level should also be promoted to ensure that no child is left behind. In the meantime, the Government should also provide incentives to teachers contributing to the community-based learning centres, or even allocate budgets to improve the facilities.
Although the Malaysian government had shown compassion and sympathy towards refugees for humanitarian reasons in the past, such empathy has seemingly come to a halt, especially during the ongoing pandemic which has exacerbated xenophobia in the society. For two consecutive years, Malaysia has made its way to the list of Top 10 worst destinations for refugees. Yet, the plight of refugees in the country is hardly discussed in the mainstream media, and it is the authors’ contention that their intolerable sufferings should be brought into the light to pressure policymakers for a better change. The authors anticipate that the government recognises the hardships suffered by the refugees in the country due to their inaction and subsequently redeem themselves by ratifying the international treaties and formulating positive changes in our legal framework to safeguard the rights of refugees and to provide them with a second chance in life to start anew in Malaysia.
Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the views of the University of Malaya Law Review, and the institution it is affiliated with.
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 See footnote 5 above, s 12.
 See footnote 5 above, s 6(1)(b).
 See footnote 5 above, s 6(1)(c).
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 See footnote 5 above, s 6(3).
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 See footnote 27 above, art 8.
 See footnote 24 above, 19, .
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 See footnote 23 above, sch 1.
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 See footnote 40 above.
 See footnote 40 above.
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 See footnote 40 above.
 Secondary level education is, considerably, a luxury to refugee children as only 21 out of the hundred learning centres offer the same. See also UN High Commissioner for Refugees (‘UNHCR’). (2016, Sept 15). UNCHR reports crisis in refugee education. UNHCR. Retrieved from <https://www.unhcr.org/en-my/news/press/2016/9/57d7d6f34/unhcr-reports-crisis-refugee-education.html>. Site accessed on 8 Dec 2021.
 See footnote 44 above.
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