Amnesty International Malaysia
23 February 2023
On the two-year anniversary of the forced deportation of 1,086 people from Myanmar, Amnesty International Malaysia condemns the Malaysian government’s continued efforts to deport people from Myanmar, including children.
Amnesty International Malaysia learnt that in January 2023, the government deported 114 people from Myanmar, including children, who were part of an ongoing court case filed by Amnesty International Malaysia and Asylum Access Malaysia. This was revealed by the federal attorney during a case management session for a judicial review filed by both organisations. The judicial review was filed following the forcible deportation of over 1,000 individuals exactly two years ago despite a court order granting a stay on their deportation. The deportation of the 114 individuals in January came after a decision by the Kuala Lumpur High Court in December 2022 to lift the interim stay. This deportation is one of many understood to have been carried out by the Malaysian government since the 2021 Myanmar coup, despite the ongoing risk of return and further degradation of the human rights situation there. The forcible return took place despite information from court proceedings that the group included children and other people in vulnerable situations.
“We are dismayed by the fact that the Malaysian government not only proactively sought to lift the stay of deportation, but ultimately chose to proceed with deporting the remaining 114 individuals from Myanmar despite deep concerns about their safety and well-being.”
“The deportation endangers lives and is a clear violation of the principle of non-refoulement—the legal standard that protects people from being returned to a country where they would face a real risk of torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. Individuals from Myanmar are at grave risk of arbitrary detention and persecution once they arrive back in Myanmar,”said Katrina Jorene Maliamauv, Executive Director of Amnesty International Malaysia.
Children amongst those deported
In February 2021, following the coup in Myanmar, Amnesty International Malaysia and Asylum Access Malaysia filed a judicial review to challenge the deportation of 1,200 people from Myanmar who, at the time, were being held in immigration detention centres across Malaysia.
Both organizations filed the application as a last resort, after letters to government and pleas from civil society, including refugee groups, to provide them a safe and legal route to remain in Malaysia were ignored. Despite obtaining a court order and a stay on the deportation, 1,086 people were deported by the Malaysian authorities days after the review was filed. The remaining 114 people were not deported because they allegedly tested positive for Covid-19. The High Court granted another stay of deportation for these 114 individuals, pending the outcome of the judicial review.
The judicial challenge revealed disturbing details about those deported and concerns around procedure. The government’s own affidavits included information of at least eight children, including two whose year of birth was stated as 2021 – infants at the time of the inquiry – and one had no parent or guardian listed. The government claimed that those deported had “consented” to their return, though the only alternative was to remain in indefinite detention in terrible conditions.
“By the government’s own admission, families were separated during the deportations. In one instance, a mother was deported, leaving behind her children who allegedly tested positive for Covid-19,”
“Those who were deported were required to sign ‘consent forms’ agreeing to their deportation, which failed to follow any process based on free, prior and informed consent. The forms were signed in the presence of Myanmar embassy officials, with the only alternative to deportation being continued prolonged, if not indefinite, detention.”said Katrina Jorene Maliamauv.
A torrent of forcible returns
Over the past year, the Malaysian government is believed to have deported thousands of people to Myanmar despite reports of ongoing human rights violations since the coup. To date, neither the Myanmar authorities nor the Malaysian government has demonstrated any accountability for the security and well-being of those returned.
In October 2022, Malaysia deported 150 Myanmar nationals, including some seeking asylum after defecting from the armed forces, who are believed to be at risk of arbitrary detention, enforced disappearance, torture and inhuman treatment. The deportation, discreetly carried out by the Malaysian government, was condemned globally for carelessly endangering the lives of individuals at risk of persecution, including by the UN High Commissioner for Human Rights and the UN High Commission for Refugees (UNHCR).
“The Malaysian government has vocally condemned the Myanmar military and gained international recognition for showing the necessary leadership in doing so, but by continuing to detain and deport individuals at risk, it undermines this position and exposes the government’s hypocrisy in policy and practice,”said Katrina Jorene Maliamauv.
Calls to reform immigration system
Shrouded in secrecy with no independent oversight, Malaysia’s immigration detention system has not only enabled dangerous deportations to take place but also made it difficult to determine how many people currently remain in detention, and the additional risks and vulnerabilities they face. The government removed UNHCR’s access to detention facilities in 2019, which has made the system even less transparent.
According to statistics revealed by the Ministry of Home Affairs, as of 12 July 2022, there were a total of 17,703 individuals detained in immigration detention centres across Malaysia, including 1,494 children.
This figure includes individuals who have been arbitrarily detained for prolonged periods without being granted any possibility for administrative or judicial review, let alone remedies. Detention, even for short periods of time, has been proven to have significantly harmful effects. Prolonged arbitrary detention may constitute torture under international law and standards.
On 21 February 2023, in a parliamentary reply, the Ministry of Home Affairs stated that 150 people died in immigration detention centres between January to December 2022. Statistics from 2019 revealed that 151 people died in immigration detention from 2016 to September 2019. To date, there have not been any transparent, comprehensive investigations and publicly made findings into the deaths in immigration custody.
Under the Convention on the Rights of the Child, to which Malaysia is a signatory, the detention of children for immigration purposes is a human rights violation. The Committee on the Convention of the Rights of the Child has called on governments to adopt alternatives to detention which ensure that children are kept with their guardians in community care settings with their rights to liberty and family life upheld. The recent announcement by the Minister of Home Affairs, Saifuddin Nasution Ismail, of their plan to end the detention of children in immigration centres is a welcome move. The government must now continue working to ensure this plan benefits all children in immigration detention, including unaccompanied minors, and that any decision made is in their best interests, especially by ensuring that they are not separated from their families.
“The immigration system in Malaysia lacks all safeguards for transparency and due process, making it impossible to ensure that the human rights and dignity of people detained in immigration detention centres are respected. Amnesty International Malaysia reiterates its calls to the government to end the practice of indefinite detention and begin the process of reforms necessary to ensure that personal liberty, a right of all humans, including migrants, is protected, and that any decision taken to restrict the liberty of migrants, refugees and asylum seekers is free from discrimination, proportionate, and occurs only under the most exceptional of circumstances,”said Katrina Jorene Maliamauv.
On 23 February 2021, the Malaysian government deported 1086 individuals to Myanmar, despite the military coup on the 1st of February and escalation of violence and human rights violations in the country. The authorities proceeded with the deportation despite an interim stay on the deportation granted by the Kuala Lumpur High Court. The Kuala Lumpur High Court subsequently granted another stay order against the deportation of the remaining 114 people pending resolution of the judicial review filed by Amnesty International Malaysia & Asylum Access Malaysia
Despite Malaysia publicly condemning the ongoing violence in Myanmar, numerous deportations of Myanmar nationals continued to be carried out by the government. Human rights organisations, including the United Nations condemned these deportations, with the UN High Commissioner for Human Rights and the UN High Commission for Refugees issuing statements in October 2022. Amnesty International also released a statement in October 2022 strongly urging the government to halt deportations to Myanmar, and to ensure access to asylum.
In August 2022, Amnesty International released a report detailing the torture faced by individuals detained in Myanmar since the coup.
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