Non-refoulement at heart of refugee protection

Non-refoulement at heart of refugee protection

In early November, the world witnessed a tense and potentially life-threatening situation unfold at Malaysia's Kuala Lumpur International Airport, as two Cambodians were held in airport detention, pending deportation to Cambodia. Despite candidly declaring to immigration authorities that they would face imprisonment in Cambodia, and that they were not willing to return to their home country, there were numerous preparations taken to remove them from Malaysian soil.

Thankfully, as soon as they were detained, a number of stakeholders including non-governmental organisations, media, and the National Human Rights Commission of Malaysia, rallied in support of their release. The fact that two individuals with serious protections concerns in their home country were slated for deportation -- including one who holds a letter from the United Nations High Commissioner for Refugees (UNHCR) -- was alarming. Fortunately, on Nov 7, these two individuals were granted an 11th hour reprieve, before being given permission to enter Malaysia. This act of compassion by the Malaysian authorities, an act that aligns with their obligations under customary international law and other instruments such as the Universal Declaration on Human Rights, should be acknowledged and applauded.

International obligations

At present, Malaysia is not a signatory to the 1951 Convention Relating to the Status of Refugees ("the Refugee Convention") nor its 1967 Protocol. In addition, the country does not have a legislative or administrative framework that offers clear guidance for dealing with refugee populations. Notwithstanding, this does not absolve Malaysia from having to protect refugees inside its borders.

On the contrary, Malaysia still has a raft of ethical and legal obligations under customary international law to protect all refugees and asylum seekers within its borders. The most significant principle, which is the foundation of the global refugee rights regime, is the doctrine known as non-refoulement. This principle states that all countries, regardless of their domestic legal frameworks (or lack thereof), cannot return an individual to a country where he or she is at genuine risk of persecution.

Chequered history

Sadly, this is not the first time individuals have been forcibly removed to a country where they face serious risk of persecution. Just six months ago, on May 10, Thai asylum seeker Praphan Pipithnamporn was deported to Bangkok, despite being registered with the UNHCR in Kuala Lumpur. An anti-monarchy activist, Ms Praphan was arrested and deported at the request of Thai authorities. This occurred despite her protection concerns and her registration as a person of concern with the UN Human Rights Agency. At the time of her deportation, Malaysia justified the decision as merely the action of a "good neighbour".

Further to this case, in late August of this year, Turkish national Arif Komis and his family were also detained and forcibly returned to their country of origin. Like Ms Praphan, Mr Komis and his family were also registered with the UNHCR and were deemed to be people of concern. The deportation did not follow due process, and ignored Section 8 of Malaysia's own Extradition Act (1992), which prohibits expulsion in cases where the return will punish a "person on account of his race, religion, nationality or political opinions".

Perhaps most famously, in early 2019 the Thai government also detained football player Hakeem al-Araibi for 77 days on an erroneous Interpol Red Notice and subsequent spurious extradition request. Despite clear political motivations from Bahrain to pressure Thailand to return a recognised refugee, Bangkok eventually allowed Hakeem to return to Australia.

Beacon of hope

As the leading regional voice on refugee protection in Asean, and as a nation that has publicly committed to instituting a range of human rights reforms to make Malaysia "respected by the world", it is essential that Malaysia continues to adhere to the principle of non-refoulement.

The decision to release the two Cambodians was an extremely positive outcome, and one that should not be ignored. Such action is an indication that Malaysia has ditched the role of a "good neighbour" for now. Instead, it has demonstrated its willingness to place human rights and refugee rights in its policy-making.

Evan Jones is a refugee advocate and a member of the Asia Pacific Refugee Rights Network (APRRN), a Bangkok-based civil society network.

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