9 MARCH 2021
AMNESTY INTERNATIONAL MALAYSIA AND ASYLUM ACCESS MALAYSIA WELCOME COURT DECISION TO GRANT LEAVE FOR JUDICIAL REVIEW OF DEPORTATION OF MYANMAR NATIONALS
Amnesty International Malaysia and Asylum Access Malaysia applaud the decision by the Kuala Lumpur High Court today to grant leave to proceed with the two organisations’ application for judicial review of the Malaysian government’s decision to deport 1,200 Myanmar nationals in February.
In addition to granting permission for the case to continue, Justice Dato’ Sri Mariana Yahya also extended the stay against the Director General of Immigration and the Home Minister from deporting the remaining 114 Myanmar nationals until the disposal of the entire judicial review. The 114 were part of the 1,200 Myanmar nationals who were at risk of being deported; Malaysian authorities deported 1,086 Myanmar nationals on 23 February despite a one-day stay earlier issued by the court.
“We welcome the decision to stay the deportation of the 114 Myanmar nationals, who are no longer at risk of deportation until the judicial review is completed. Today’s judgment also affirms the role of NGOs and civil society organisations in challenging government decisions in court on matters of public interest,” said Katrina Jorene Maliamauv, executive director of Amnesty International Malaysia. “No longer can the government dismiss judicial review applications by NGOs as trivial or misconceived, as the court has acknowledged the role NGOs play in today’s society in helping ensure accountability and transparency.”
The High Court also rejected the Attorney General’s Chambers’ assertion that the ouster clause in Section 59A of the Immigration Act meant that leave could not be granted to proceed with a judicial review of the deportation.
“Section 59A has been cited repeatedly to prevent any court from looking into decisions by the Director-General of the Immigration Department and Minister of Home Affairs. We welcome the High Court decision today, signaling that the ouster clause should no longer be used as a carte blanche to dismiss attempts at judicial review as being merely frivolous or vexatious,” said Tham Hui Ying, executive director of Asylum Access Malaysia.
Despite the deportation of 1,086 Myanmar nationals last month, there remains 114 individuals who are at imminent risk of being deported. These may include asylum-seekers, refugees and children who are in need of international protection, and who still do not have access to UNHCR, which has been denied access by the government to detention facilities since August 2019. This order ensures that they are prevented from being deported at least until the judicial review application is disposed of. The court has fixed 23 March for case management.
“We took action because we wanted to stop the government from violating fundamental obligations they have under the law,” said Hui Ying. “The government violated not only the universally-accepted international prohibition on non-refoulement, or forcible return of a person to a place where their safety is in jeopardy, but also potentially the Child Act and Malaysia’s obligations under the Convention on the Rights of the Child (CRC) and the Convention on the Elimination of Discrimination against Women (CEDAW).”
Today’s decision comes as the political situation in Myanmar continues to deteriorate. Over 50 people have been reportedly killed by the military following widespread protests against the 1 February military coup.
“The detention of people solely for immigration control is unjustifiable. There are still thousands of people at risk, not just from Myanmar, who remain detained indefinitely in immigration detention centres throughout the country. These include refugees, asylum-seekers and children, including those without any parents or guardians,” said Katrina. “UNHCR must urgently be granted access to refugees and asylum seekers in detention as the situation remains dire for them.”
“We call on the public to continue to highlight this issue and put pressure on the government to ensure that no one else is deported with impunity and in violation of Malaysia’s obligations under international law,” said Hui Ying.
On 22 February, Amnesty International Malaysia and Asylum Access Malaysia jointly filed an action in the Kuala Lumpur High Court to stop the planned deportation of 1,200 Myanmar nationals by Malaysian authorities. An interim stay order to halt the deportation was granted by the Court on the afternoon of 23 February, pending a hearing on the leave application for judicial review. On the evening of 23 February, despite the court order, the government deported 1,086 people to Myanmar.
Vaishna Santhar, Deputy Director, Asylum Access Malaysia
Brian Yap, Research Consultant, Amnesty International Malaysia