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Security and status determination for urban refugees in Malaysia

It seems probable – and entirely reasonable - that it will take several years to build trust in a ‘new’ Myanmar that is safe to return to. But in a context of perpetual fear and insecurity, how will refugees in Malaysia survive until then? 

Kirsten McConnachie
26 March 2014
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Myanmar refugees have to sell vegetables they collect from a dump to survive in Selayang, north Kuala Lumpur. Malaysia doesn’t distinguish between illegal immigrants and refugees. Demotix/Adli Ghazali

Malaysia is much less closely associated with Burmese displacement than Thailand – yet Malaysia is host to one of the largest populations of refugees and asylum seekers from Myanmar in the region, with more than 130,000 people registered with UNHCR and perhaps another 35,000 that are unregistered. The population is diverse, with large populations of ethnic Chin and Rohingya, and smaller groups from all the other Burmese ethnic nationalities.

All refugees in Malaysia are ‘urban refugees’, with the majority living in Kuala Lumpur and smaller populations dispersed throughout the country. The experience of refugees in Kuala Lumpur can be described by analogy to Neil Gaiman’s Neverwhere, a fictional world where London exists as ‘two cities so near and yet in all things far’. One of these (London Above) is the city as we know it today. The second (London Below) is home to those ‘who have fallen through the cracks’ in the world above. It is an infinitely more sinister place, a world of fear and insecurity where danger lurks around every corner. Like Neverwhere’stwo Londons’, it could be said that there are two Kuala Lumpurs: the city as it is experienced by those with valid documents, and as it is experienced by refugees and undocumented migrants.

(In)security

Malaysia is not a signatory to the Refugee Convention and makes no legal distinction between refugees and other undocumented migrants. A foundational illegality permeates every aspect of refugees’ lives. Their children are not allowed to access Malaysian state schools and instead attend community-run education centres where the teachers have barely completed high school themselves.

Paid employment is illegal, and in the sectors where refugees and asylum seekers find work (retail, agriculture, construction, domestic labour) labour exploitation occurs in many forms, including low pay, long hours, dangerous working conditions, labour trafficking and indentured slavery. Workplace accidents and fatalities are commonplace, particularly in the construction sector. Funerals are extremely expensive, placing an additional burden on a bereaved family. 

Landlords take advantage of desperation to house refugees in dangerous or unsanitary locations: next to rubbish dumps, construction sites, flooded areas. One Chin refugee I met lived on the twelfth floor of a high-rise building. Lower floors were used for prostitution and he was forbidden from using the lift to ensure it was available for ‘clients’. When he objected to this, he was punched and beaten.

These conditions of deprivation, exploitation and insecurity have direct health consequences, yet accessing health care presents further dangers. Doctors and nurses are under a standing requirement to report undocumented migrants to immigration services, and cases of asylum seekers being arrested post-surgery or post-childbirth have instilled deep fear among the migrant population and an understandable reluctance to seek medical treatment.

Worst of all, however, is the ever-present threat of arrest and prosecution. For undocumented migrants or unregistered refugees, life in Kuala Lumpur can be summarised very simply: nowhere is safe. Arrest can occur at any time and from any place: work, church, home, hospital. During immigration ‘crackdowns’, in a matter of days thousands of people can be arrested.   

Arrests are common but they do not inevitably lead to detention – provided the person can pay. A study for the International Rescue Committee found that almost half of the respondents had paid some form of bribe to Malaysian officials at least once in the past year. One Chin refugee who worked at a market food stall told me that he had been asked for money by police several nights in a row.  He protested, and was told, “This is our country, and we pay tax. This is your tax.”

Those who lack resources to pay their “tax” will be taken to a police lock-up. At this stage it is still possible to negotiate release with money, but after fourteen days the detainee will be taken to immigration court and sentenced. Illegal entry to Malaysia or visa overstay is a criminal offence punishable by up to five years of imprisonment, a 10,000 MR fine and whipping (with whipping in this context an excruciating punishment in which every stroke can leave permanent scarring and potentially permanent injury).

In effect, immigration detention occurs when someone has been unable to produce sufficient money to buy release and thus could be seen less as policing illegal entry than as policing poverty. Nevertheless, many people are in this position and it is believed that immigration detention centres in Malaysia are consistently over capacity (approximately 12,000). These centres are information black-sites where even the most committed organisations and activists are unable to monitor conditions, though former detainees report overcrowding, insufficient food and physical abuse. Detainees can be released with an intervention of UNHCR determining or affirming refugee status but experienced civil society activists suggest that this regularly takes upwards of six months to occur.  Meanwhile, the conditions in detention exact a harsh toll on mental and physical health.

Status determination

One man described living as an unregistered refugee in Malaysia as “hell.  Just like hell on earth.  I was afraid all the time. I could never sleep at night.” Refugee status is certainly not the end of anyone’s problems but possession of a ‘UNHCR card’ does represent a fundamental shift in security, granting reduced medical costs and some protection from police harassment and immigration detention. It is also an essential step in the determination of eligibility for resettlement. 

Refugee status determination (RSD) is conducted by UNHCR on the basis of an informal agreement with the government, and Malaysia is one of the agency’s largest RSD operations, processing around 18,000 people per year. This is a considerable number - the equivalent of more than 70 people every working day - but not nearly enough to process the waiting unregistered population.

Since 2010, refugees from Myanmar have not been allowed to approach UNHCR for registration individually but must register first with a refugee-led community organisation. Intermittently, these organisations are contacted for their membership lists and a process of ‘mobile registration’ is conducted across Malaysia.

In late 2013, mobile registration was conducted for the first time in three years. During four months of intensive work by both UNHCR staff and refugee-led organisations, 30,000 people from Myanmar were registered as asylum-seekers.

UNHCR policy advises that a status determination interview should be held within six months of arrival, with a first instance decision in thirty days. A study by Jesuit Refugee Service found Malaysia to be the only country in southeast Asia where the average status determination processing time is unknown, though it appears to be at the upper maximum for the region, compared with Thailand (up to 25 months); Cambodia (44 months); Indonesia (47 months) and the Philippines (58 months).

Those registered as asylum seekers during mobile registration in 2013 have not yet been given dates for an RSD interview. Yet even this first step on the registration process is a vital one. On one day of registration I talked with a man who had worked until midnight, and then travelled through the night to gather his friends and reach the registration site before 5am. A mere six hours later, all had been successfully registered and entered on the first step to recognition as a refugee. Despite his sleepless night Bawi was jubilant:  ‘Before, I was very tired and very worried but now I am very, very happy.  Today is a beautiful day.’

Community protection

In Malaysia’s insecure environment, community organisations are a crucial support structure for refugees. Primarily organised around ethnic identities, the largest community-based organisations have tens of thousands of members. They provide information and assistance to help members access basic services; they run community ‘learning centres’; they negotiate with police to help secure the release of members. 

Community organisations act as intermediaries between their members and Malaysian institutions.  They also serve as intermediaries between UNHCR and the wider refugee population: reporting community problems and protection incidents to UNHCR, and communicating UNHCR programmes to the wider population. This role was vital in mobile registration, when community organisations were responsible for compiling and verifying their lists of members, coordinating their members’ arrival at the registration site and providing interpreters. They did not receive external funding to provide these services. 

What next?

As in other countries in the region, asylum in Malaysia is granted on a temporary basis until refugees can access a durable solution. In practice, the only durable solution that has been possible is resettlement and this continues to be the overwhelming preference of those I spoke with. The prospect of return was viewed with fear and distrust. Past experience of discrimination and violence is still vivid, as is awareness of continuing human rights violations in ethnic border territories. There is little confidence that the political and military environment of Myanmar has changed to any meaningful degree.  It seems probable – and entirely reasonable - that it will take several years to build trust in a ‘new’ Myanmar that it is safe to return to. But in a context of perpetual fear and insecurity, how will refugees in Malaysia survive until then?

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