Detention increases the vulnerability of refugees and asylum seekers, exposing them to additional risk of torture or inhuman or degrading treatment, and negatively impacting their health and wellbeing.97 Research has also shown that detention is costly and has limited deterrent effects on irregular migration.98 Because asylum seekers in South and Southeast Asia are often undocumented or without the required immigration documents, they are regularly detained without regard for their potential international protection needs. Immigration detention in the region is frequently used as a migration management mechanism; furthermore, in the absence of protective domestic legislation, asylum seekers and refugees are treated as irregular migrants, are not screened separately to identify their protection needs, and therefore risk being placed in detention in what amounts to penalization of asylum-seeking. In many states, these detention practices extend to children and unaccompanied minors.99 Nonetheless, there have been examples of positive practices in the region, including judicial scrutiny of detention and the adoption of alternatives to detention, as outlined below. Legislative Practices Alongside the use of immigration detention as a penalizing deterrent to seeking asylum, many states fail to adequately protect victims of human trafficking, particularly when those victims are non-nationals. Authorities often conflate migrant smuggling with human trafficking, resulting in the re-victimization of trafficked persons under anti-smuggling and/or immigration measures. The promulgation of legislation which adequately differentiates between perpetrators and victims of human trafficking, as well as distinguishing between human trafficking and migrant smuggling, may help to ensure that trafficked persons receive adequate protection and are not doubly victimized. Malaysia’s Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act is commendable in providing the opportunity for identified victims of trafficking, including non-citizens, to enjoy freedom of movement and gainful employment. Further, the law’s recognition of the fact that smuggled migrants may also be victims of trafficking and therefore require the protection of the state reduces the likelihood of double victimization. However, serious limitations in this legislation’s implementation by authorities reportedly persist, including a reliance on victims’ own self-identification and failures to survey individuals apprehended during immigration enforcement raids for potential protection needs.100 MALAYSIA Malaysia’s 2007 Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act provides special protections for individuals who are recognized as victims of human trafficking. Under this law, Magistrate Courts may issue a protection order to individuals who are identified as trafficked persons, enabling them to be placed in a shelter for up to three months, during which time they may also be permitted to move freely and to engage in work. Following the expiry of the protection order, foreign nationals who require further care and protection may be ordered to remain in the shelter for as long as this protection need persists. Further, the act allows for courts to order that victims of human trafficking be compensated by their trafficker(s). 26 UND OING PRECARIT Y: ELE VATING P OSITIVE PR ACTICES FOR REFU GEE PROTECTION IN SO U TH AND SO U THE AST ASIA