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
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