Action Puts Lives at Risk, Defies Court Order
(Bangkok) -- The Malaysian government should urgently investigate the Immigration Department's return of 1,086 Myanmar nationals to Myanmar in defiance of a court order, Human Rights Watch said today.
On February 23, 2021, the Malaysian High Court granted a temporary stay of deportation for 1,200 Myanmar nationals in custody to allow judicial review. Despite the court order, immigration authorities transferred 1,086 of them to the custody of the Myanmar navy for return to Myanmar.
Prime Minister Muhyiddin Yassin should order the Immigration Department to grant the United Nations refugee office, UNHCR, immediate access to everyone in immigration detention to assess and determine whether they are recognized refugees, qualify as refugees, or have grounds to seek asylum.
"Malaysia's immigration authorities have shown a blatant disregard both for the basic rights of Myanmar nationals and an order by the Malaysian High Court," said Linda Lakhdhir, Asia legal advisor. "The immigration director-general has put lives at risk by sending people back to a country now ruled again by a military that has a long track record of punishing people for political dissent or their ethnicity."
In a letter dated February 11, 2021 "regarding the repatriation for 1,200 undocumented Myanmar nationals," the Myanmar embassy in Kuala Lumpur asked Malaysia's Ministry of Foreign Affairs for "permission" for three navy ships to dock at the Lumut Naval Base in Perak State on February 21 and depart on February 23. Malaysia's director-general of immigration, Khairul Dzaimee Daud, publicly confirmed the arrangement on February 11.
On February 15, Daud asserted that the Myanmar nationals to be returned would not include UNHCR "cardholders" or Rohingya refugees. Human Rights Watch, Fortify Rights, and others called for Malaysia to allow UNHCR, which has been denied access to Malaysian immigration detention centers since August 2019, to have access to the detainees to determine whether any were recognized refugees or had grounds to qualify as refugees. That access was never granted.
Despite lack of access, Asylum Access and Amnesty International, in their application for judicial review filed on February 22, said they received information indicating that at least three UNHCR cardholders were among those scheduled for return. The groups also received information indicating that at least 17 children with one or more parent in Malaysia were among those scheduled for return. On February 23, the High Court granted review and ordered a halt to the deportations until after a hearing to be held at 10 a.m. on February 24.
Malaysia's Immigration Department has provided no information regarding the approximately 114 Myanmar nationals who were not transferred to the custody of the Myanmar navy, but again asserted that it did not send back any Rohingya refugees or asylum seekers.
"Given Malaysia's prior claims that no refugee cardholders were among those scheduled for return, the Immigration Department's assurances carry little weight," Lakhdhir said. "Without a full and transparent investigation into these returns and an order permitting UNHCR access to all detainees, refugees and asylum seekers in Malaysia are at risk of prolonged detention and return to persecution."
As of December 2020, more than 178,000 refugees were registered with UNHCR in Malaysia. More than 86 percent are from Myanmar, including more than 100,000 Rohingya, 22,000 Chin, and 29,000 from other ethnic communities. The total number of refugees in Malaysia, including those from Myanmar, is likely much higher.
More than one million ethnic and religious minorities from Myanmar have fled persecution, protracted human rights violations, and mass atrocity crimes by the Myanmar military in the past decade. On February 1, the Myanmar military overthrew the democratically elected government. Since the coup, Myanmar security forces have used excessive and unnecessary lethal force against peaceful protesters, conducted hundreds of arbitrary arrests, amended laws to strip away rights, and blocked internet access nationwide.
The international legal principle of nonrefoulement prohibits countries from returning any person on its territory or under its jurisdiction to a country where they may face persecution, torture, or other serious harm. Although Malaysia is not a party to the 1951 UN Refugee Convention or its 1967 Protocol, nonrefoulement is recognized as part of customary international law and is binding on all states.
Given the Myanmar military's repression of critics of the coup or the junta, as well as the military's record of abuses against ethnic minorities, Malaysia's failure to provide fair asylum procedures or allow UNHCR to make refugee determinations violates the government's international legal obligations, Human Rights Watch said.
Director-General Daud did not specify whether the 17 children identified by Asylum Access and Amnesty International, or any other children with a parent in Malaysia, were among those returned to Myanmar. Separating children from their parents would violate Malaysia's obligations under the Convention on Rights of the Child, to which Malaysia is a party. Under that convention, children should not be separated from their parents unless doing so is in the best interests of the child.
The Malaysian government should thoroughly investigate the actions of the Immigration Department in this case, take appropriate disciplinary or legal action against anyone acting in violation of the court order, and put in place rules and regulations to ensure that any future returns are in full compliance with international law, Human Rights Watch said. The government should grant UNHCR immediate access to all immigration detention facilities to exercise its mandate to determine the refugee status of all detainees and facilitate durable solutions, including integration in Malaysia, for those recognized as refugees. The government should also ratify the Refugee Convention and establish asylum procedures consistent with international standards for stateless people and foreign nationals at risk of persecution in their home countries.
"Malaysia's Immigration Department should recognize that it cannot operate above the law," Lakhdhir said. "With Myanmar's brutal military back in power, the risks of returning Myanmar nationals fearing return are higher than ever."
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