Refugee Status Determination Process at Host States: Comparative Analysis between

Malaysia, Indonesia and Brazil

Assoc. Prof. Dr. Rohaida Nordin1

Norilyani Hj Md Nor2
Rosmainie Rofiee3

ABSTRACT

In any host states, refugee status determination (RSD) by the United Nations refugee
agency is an important process for any asylum-seeker. The agency does this in several ways: it
ensures that refugees will not be returned involuntarily to a country where they could face
persecution. Longer term, the organization helps refugees find appropriate durable solutions to
their plight, by repatriating voluntarily to their homeland, integrating in countries of asylum or
resettling in third countries. As there are no legislative or administrative provisions in place for
dealing with the situation of refugees and asylum-seekers in Malaysia, UNHCR conducts all
activities related to the protection of refugees namely the reception, registration, documentation
and RSD of asylum-seekers and refugees. In order to prevent the deportation of people who
should qualify for international protection as refugees, UNHCR should reassess its RSD
activities in Malaysia, and consider alternative means of providing process that would be less
burdensome and less risky for people fleeing violence and human rights violations. This research
consists of four chapter which indicate that the first chapter focuses on introduction and statistic
of Refugee and Asylum in Malaysia; the second chapter are about Defining RSD under UNHCR
and under International Law; the third chapter focuses on RSD in Malaysia; and the last chapter
analyze comparison RSD at Indonesia and Brazil.

1. INTRODUCTION

In the words of the United Nations High Commissioner for Refugees (UNHCR)’s
Handbook on Procedures and Criteria, the Convention Relating to the Status of Refugees 1951
(Refugee Convention) does not indicate what type of procedures are to be adopted for the
1
Lecturer and Associates Professor at Faculty of Law UKM, LL.B (Hons) (Malaya), LL.M (UKM), Ph.D
(Lancaster) Advocate & Solicitor (Malaya) (Non Practising) Syari’e Lawyer (Melaka) Licensed Company Secretary.
2
Master of Laws Student, 2nd Semester Faculty of Law UKM (P90152).
3
Master of Laws Student, 1st Semester Faculty of Law UKM (P91410).
determination of refugee status.4 Indeed, there is a diversity of State practice with respect to RSD
which must be acknowledged. New models of RSD are continually emerging, including the
Brazilian model. Existing models continue to evolve as any practitioner of refugee law will
confirm. While silent on the precise process to be followed, Article 9 of the Refugee Convention
authorizes the use of provisional measures (such as detention) against a refugee only “pending a
determination by the Contracting State” of refugee status. Similarly, Articles 32 and 33 specify
formal legal processes that must occur before, respectively, expulsion and refoulement are
permitted. The silence of the Refugee Convention as to process has been filled to a large extent
by other international treaties and domestic procedural standards.

Articles 13 and 14 of the International Covenant on Civil and Political Rights 1966
(ICCPR) provide procedural guarantees in various proceeding. 5 Procedural Guarantees are legal
measures established by law to ensure proper administration of justice. This system is made up
of a combination of democratic principles and institutions, procedural forms, legal relations, and
the entire system of Soviet court procedure.6 The examples of procedural guarantees as provided
under Article 14 of the ICCPR are trial without undue delay, not to be compelled to testify
against himself, and right to being reviewed by a higher tribunal according to law. Articles 19
and 22 of the more recent International Convention on the Rights of Migrant Workers and
Members of their Families provide procedural guarantees. 7 Regional conventions, including the
Banjul Charter,8 the American Convention on Human Rights 9, the European Convention on
Human Rights, also provide procedural guarantees.

4
UNHCR Handbook on the Procedures and Criteria for Determining Refugee Status (Geneva: UNHCR, 1979) (re-
ed.,1992) at 189 [UNHCR Handbook].
5
G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered
into force Mar. 23, 1976 [ICCPR].
6
www.encyclopedia2.thefreedictionary (last seen on 11 January 2018).
7
All Migrant Workers and Members of Their Families, G.A. res. 45/158, annex, 45 U.N. GAOR Supp. (No. 49A) at
262, U.N. Doc. A/45/49 (1990), entered into force 1 July 2003 [MWC]. Article 3(d) specifically precludes the
application of the MWC to refugees. However, given that many refugee claimants are not in fact refugees it would
be inappropriate to design an RSD process that did not meet the requirements of the MWC.
8
Article 7 of the African Charter on Human and Peoples’ Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3
rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986 [Banjul Charter].
9
Article 8 of the American Convention on Human Rights O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered
into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System,
OEA/Ser. L.V/II.82 doc.6 rev.1 at 25 (1992).
 It seems that a variety of procedures will examine the individual reasons of asylum
seekers for being outside their country of origin, and thus determining their status as refugees.
Procedures can vary based upon location, country of origin and personal history. Despite recent
efforts to harmonise RSD procedures, notably in the European Union, there is still no single
model for RSD and there remains a troubling variation in outcomes in similar cases. The
diversity of State practice and the implementation that left to local officials with respect to RSD
leads to some problems especially in terms of quality of the justice which seems to vary from
office to office. It is also found that there is a general lack of transparency about the RSD
procedures, including waiting time considerable for an interview, a decision on the refugees and
asylum seekers’ claim, and for resettlement

1.1 Statistic of Asylum Seekers and Refugees

As of end November 2017, there are some 152,420 refugees and asylum seekers
registered with UNHCR in Malaysia. Some 133,580 are from Myanmar, comprising some
65,250 Rohingyas, 34,140 Chins, 9,920 Myanmar Muslim, 4,100 Rakhines and Arakanese, and
other ethnicities from Myanmar. There are some 18,830 refugees and asylum seekers from other
countries, including 5,260 Pakistanis, 2,380 Yemenis, 2,330 Syrians, 2,250 Somalis, 2,090 Sri
Lankans, 1,460 Iraqis, 1,150 Afghans, 740 Palestinians, and others from other countries. 10

1.2 Definition of Asylum Seekers and Refugees and their Rights under International
Law

The Refugee Convention and its 1967 Optional Protocol relating to the Status of
Refugees (Refugee Protocol) is the main international conventions on refugee. The Refugee

10
www.unhcr.org (last seen on 11 January 2018).
Convention establishes the definition of a refugee 11 as well as the principle of non-refoulement 12
and the rights afforded to those granted refugee status. The determination by State Party on
whether an individual meets the definition of a refugee however is not defined in The Refugee
Convention. Instead, the establishment of asylum proceedings and RSDs are left to each State
party to develop. Many States simply adopt the refugee definition found in the relevant
international instruments to which they are party. On the other hand, UNHR’s mandate to
provide international protection to refugees originally stems from its 1950 Statute, which
provides that the competence of the High Commissioner shall extend, in addition to those
considered refugees under treaties and arrangements in place at the time when the Statute was
adopted, to the following categories13 :

Paragraph 6A (ii): “Any person who, as a result of events occurring before 1

January 1951 and owing to well-founded fear of being persecuted for reasons of
race, religion, nationality or political opinion, is outside the country of his [or her]
nationality and is unable or, owing to such fear or for reasons other than personal
convenience, is unwilling to avail him [or her]self of the protection of that country;
or who, not having a nationality and being outside the country of his [or her]
former habitual residence, is unable or, owing to such fear or for reasons other
than personal convenience, is unwilling to return to it.”
Paraghraph 6B: “Any other person who is outside the country of his [or her]
nationality or, if he [or she] has no nationality, the country of his [or her] former
habitual residence, because he [or she] has or had well-founded fear of
persecution by reason of his [or her] race, religion, nationality or political opinion
and is unable or, because of such fear, is unwilling to avail him [or her]self of the
protection of the government of the country of his [or her] nationality, or, if he [or
11
Article 1 of the 1951 Convention provides that the term ‘refugee’ shall apply to any person who has been
considered a refugee under the Arrangement of 12 May 1926 and 30 June 1928 or under the Convention of 28
October 1933 and to February 1938, the Protocol of 14 September 1939 or the Constitution of the International
Refugee Organization,; and as a result of events occurring before 1 January 1951 and owing to well- founded fear of
being persecuted for reasons of race, religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of
the protection of that country; or who not having a nationality and being outside the country of his former habitual
residence as result of such event, is unable or, owing to such fear, is unwilling to return to it.
12
Article 33(1) provides that no Contracting State shall expel or return (‘refouler’) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race,
religion, nationality, membership of a particular social group or political opinion.
13
UNHCR, Refugee Status Determination Self –study module 2, 1 September 2005.
 she] has no nationality, to return to the country of his [or her] former habitual
residence.”

It seems that the refugee definition contained in the UNHCR statue is nearly identical to
that adopted by the drafters of the Refugee Convention. Although “membership of a particular
social group” as a ground for persecution is not provided under UNHCR Statute, and its refugee
definition has from the outset been applicable without any restrictions in terms of time or place,
these differences are no longer significant.

States have been granting protection to individuals and groups fleeing persecution for
centuries as it becomes the overarching goal of the modern refugee regime. Article 14(1) of the
Universal Declaration of Human Rights (UDHR), which was adopted in 1948, guarantees the
right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments
have elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign
territory, in accordance with the legislation of the state and international conventions.” American
Convention on Human Rights, article 22(7); African [Banjul] Charter on Human and Peoples’
Rights, art. 12(3).

Even in Article 16 of the ASEAN Declaration on Human Right 2012 declare that every
person has the right to seek and receive asylum in another State in accordance with the laws of
such State and applicable international agreements. Furthermore, unlike the UDHR in its Article
14 (1), the ICCPR does not guarantee a right to seek and enjoy asylum. Consequently, the duty of
non-refoulement imposed on States by the ICCPR must not be confused with asylum 14. Whereas
the former prevents a state from removing a person to a situation of danger, the latter describes
the act of a state protecting a person by granting her/him refuge on its territory15.

Some States also guarantee right to seek asylum in their Constitution such as Brazil.
Article 28 of Law No. 6,815 in Brazilian Constitution determines that a foreign national admitted
to Brazilian territory as a political asylum must comply with all duties imposed on him/her by
international law, along with the current domestic laws and all additional duties established by
the Brazilian government. The asylum may not leave the country without the express

14
James C. Hathaway: The Rights of Refugees under International Law. Cambridge, Cambridge University Press
2005;
15
Santhosh Persaud: Protecting refugees and asylum seekers under the International Covenant on Civil and
Political Rights, November 2006.
authorization of the Brazilian government; an asylum who does so renounces his/her status as an
asylum and is not allowed to re-enter the country16.

2. REFUGEE STATUS DETERMINATION (RSD)

What is Refugee Status Determination (RSD) Process?

RSD is a means not an end. It is the process by which States and UNHCR identify who
are entitled to the benefits of refugee protection and thereby facilitate the fulfilment of their
obligations to the beneficiaries of the international refugee regime. It is a truism of refugee law
that RSD does not confer status on a refugee but merely confirms it. 17 It means that RSD is a
vital part of being recognized as a refugee. This is the legal or administrative process by which
State governments or UNHCR determine whether a person seeking international protection is
considered a refugee under international, regional or national law.

States have the primary responsibility for determining the status of asylum-seekers, but
UNHCR may do so where states are unable or unwilling. In recent years, the refugee agency has
been required to conduct RSD in more State countries than before and for a greater number of
16
Refugees Law and Policy in Selected Countries, The Law Library of Congress, March 2016.
17
Paragraph 28 of the UNHCR Handbook famously states this truth as follows: “A person is a refugee within the
meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily
occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not
therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but
is recognized because he is a refugee.”
people. UNHCR does RSD in many States including, in our region, Indonesia, Thailand and
Hong Kong as well as Malaysia. In fact, UNHCR does more RSD than most governments.18

On the other hand, Japan is one example of Contracting State to the Refugee Convention
and the Refugee Protocol, and thus the Japanese authorities are competent to determine refugee
status in Japan. Anyone who intends to seek asylum in Japan needs to apply for refugee status at
an immigration office of the Ministry of Justice. A foreigner can file his/ her refugee claim with
the Japanese Government free of charge, irrespective of his/ her nationality and present legal
status.19

The Procedural Standards for RSD under UNHCR’s Mandate, published in 2003 has
presented the core standards and best practices to ensure harmonized, efficient and quality RSD
procedures, including reception and registration. These are gradually being revised to reflect
legal and procedural developments. The refugee agency’s RSD operations have been
progressively implementing the Procedural Standards, which can be found in UNHCR’s
Refworld site, alongside other key UNHCR documents related to RSD, including legal and
policy documents.

The RSD Procedural Standards provide detailed procedural guidelines for every stage of
the process of mandate RSD, from the reception of asylum seekers by UNHCR through to the
final determination of the claim. The main component of Procedural Standards for RSD include:
standards for reception of asylum seekers and refugees, registration of applicants for RSD,
issuing documents to asylum seekers and refugees, scheduling of RSD interviews and
appointments, RSD file management, conducting and documenting interviews in RSD
procedures, participation of third parties / legal representatives, preparing written RSD
assessments, review of RSD decisions, appeal procedures, notification of decisions in RSD
procedures, procedures for accelerated RSD processing, processing derivative status
applications, examining the application of the exclusion clauses, procedures for cancellation /
revocation and cessation of refugee status, closing and re-opening RSD files, qualifications and
training of staff who are involved in RSD, preserving confidentiality in RSD procedures,

18
http://www.theaustralian.com.au/business/legal-affairs/unhcr-must-account-for-determining-refugee-status-in-
malaysia/news-story/ (Last seen on 10 January 2018).
19
Japan Association for Refugees, To Those Who Wish to Apply For Refugee Status, March 2013.
supervision and oversight in RSD procedures and gender and age sensitivity in RSD
procedures.20

2.1 UNHCR and RSD

UNHCR also has a responsibility to provide international protection to refugees and seek
permanent solutions to the problem of refugees. Indeed, it remains the only international
organization with a specific mandate to protect refugees at the global level. Under its 1950
Statute and Subsequent Resolutions 428 (V) of 14 December 1950 adopted by the UN General
Assembly and ECOSOC, UNHCR has a mandate to ensure international protection and seek
appropriate solutions for refugees within its competence. Asylum-seekers are also among the
categories of “persons of concern to UNHCR” (as are returnees, stateless persons and, under
certain circumstances, internally displaced persons).

While States, particularly those which are Party to the Refugee Convention and/or
Refugee Protocol, should normally conduct RSD themselves, in certain situations UNHCR may
need to conduct its own RSD and establish for itself whether or not particular individuals, or
members of a certain group, are refugees within the UNHCR Office’s international protection
mandate. In the majority of cases the UNHCR Office conducted RSD itself. In practice, this is
situations where UNHCR has conducted RSD by itself when in States that are not party to the
Refugee Convention or the Protocol; when in States that are party to the Refugee Convention
but have not established asylum procedures; when in States that are party to the Refugee
Convention but retain the geographic limitation thereby denying some access to their asylum
procedures; and when UNHCR has assessed serious shortcomings in the State’s asylum
procedure such that refugees are unlikely to obtain the protection they need, either because they

20
Procedural Standards for Refugee Status Determination under UNHCR's Mandate.
(www.unhcr.org/4317223c9.pdf)
are not recognized, or because recognition does not entail the protection it should. UNHCR
therefore may need to conduct RSD under its mandate to address protection gaps.21

In most cases where UNHCR conducts RSD, this is done for the purpose of establishing
whether a particular person is a refugee within the competence of UNHCR. The decisions
reached are of direct relevance also in determining the form of protection and assistance
provided by UNHCR to the person concerned. These might include documentation certifying the
person’s refugee status, measures to reunite families or facilitate voluntary repatriation, or
material assistance of various kinds.

In 2007, UNHCR was involved in RSD in 68 countries. Over 90% of the RSD work in
terms of applications received and decisions rendered was carried out in 15 countries; the largest
operations were in Kenya, Malaysia, Turkey, Somalia, Egypt and Yemen. Between 2003 and
2006, applications to UNHCR increased by 48%. In 2007, UNHCR received 75,690 applications
(12% of global asylum applications) and rendered 51,200 decisions22.

The growth in UNHCR’s role in conducting RSD has brought with it a number of
challenges, some faced by States and some unique to UNHCR. The first is to ensure adequate
and appropriate staffing. UNHCR’s Office located in Geneva has 140 staff devoted full-time to
RSD, and another 150 part-time 23. The ratio of staff to the number of asylum applications
received by UNHCR is far less than in most national systems in Europe or North America, for
example. In addition, half of the 140 full-time staff are on short-term contracts which, in view of
the resulting high turnover, has a negative impact on efficiency and increases training demands.
Expert RSD supervision is also required in all of these operations. Having staff spread across the
globe makes consistency and provision of training a challenge. There are also issues of ensuring
that decisions are made in a timely manner plus concerns about staff security, integrity of the
system and burnout. Finally, while in some States the attitudes towards asylum seekers and
refugees are very positive, in others the protection environment can be quite negative, rendering
UNHCR’s RSD work even more challenging24.

21
Chapter Three – Refugee Status and Resettlement by UNHCR. (www.unhcr.org/3d464c954.pdf)
22
Richard Stainsby, UNHCR and Individual Refugee Status Determination, April 2009.
(http://www.fmreview.org/es/node/3213.html), Last Seen on 11 January 2018.
23
Status Determination and Protection Information Section, Division of International Protection Services, UNHCR
Office in Geneva, (http://www.unhcr.org).
 In view of these obstacles and limited resources, UNHCR has made and continues to
make efforts to strengthen and improve RSD under its mandate, and to strive for high quality
‘first-instance’ decisions25 – i.e. to ensure the early identification of those in need of international
protection, as well as of those who do not need or deserve it.

2.2 The Refugee Convention 1951

The Refugee Convention and Refugee Protocol define who is eligible for refugee status
and establish key principles of international refugee protection, in particular, the principle of
non-refoulement but they do not set out procedures for the determination of refugee status. The
systems put into place by countries for examining asylum claims vary, as they are shaped by
differences in legal traditions, resources and circumstances. It is generally recognized, however,
that fair and efficient procedures are an essential element in the full and inclusive application of
the Refugee Convention whenever RSD is done on an individual basis. Without such procedures,
States would not be in a position to effectively implement their obligations under international
refugee law.

International and regional human rights instruments, as well as, in particular, relevant
conclusions adopted by UNHCR’s Executive Committee, contain the international standards to
be observed by States when they set up individual asylum systems under their domestic law.
Principles of procedural fairness also apply.

The importance of RSD procedures and of their effective functioning cannot be over-
emphasized: a wrong decision might cost the person’s life or liberty.

Most significantly, refugees enjoy protection against return to a country where they face a
risk of persecution. This is known as the principle of non-refoulement. Often referred to as the
cornerstone of international refugee protection, it is explicitly provided for in Article 33(1) of the
Refugee Convention, according to which no State shall:

24
Richard Stainsby, UNHCR and Individual Refugee Status Determination, April 2009.
(http://www.fmreview.org/es/node/3213.html), Last Seen on 11 January 2018.
25
The term ‘first instance’ means the first decision, as opposed to decisions at appeal level. It describes the first
stage of the RSD process.
 “expel or return (refouler) a refugee in any manner whatsoever to the frontiers of
territories where his [or her] life or freedom would be threatened on account of his
[or her] race, religion, nationality, membership of a particular social group or
political opinion.”

Formal recognition of refugee status is not a precondition for protection against

refoulement to apply26. As asylum-seekers may be refugees, it is an established principle of
international refugee law that they should not be returned or expelled pending determination of
their status.

Exceptions to the principle of non-refoulement are very narrowly defined. They are
permitted only in the limited circumstances provided for in Article 33(2) of the Refugee
Convention, which stipulates that:

“the benefit of [Article 33(1)] may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding as a danger to the security of the
country in which he [or she] is or who, having been convicted by a final judgement
of a particularly serious crime, constitutes a danger to the community of that
country.”

The conditions in which Article 33(2) may be applicable can only be met if a refugee
poses a very serious future danger to the security of the host country such as a threat to the
country’s constitution, territorial integrity, independence or external peace or if he or she has
been convicted by a judgement that is no longer open to appeal of a crime of a particularly
serious nature (e.g. murder, rape, armed robbery) and continues to pose a danger to the
community of the host State. The application of an exception under Article 33(2) requires
procedures in which guarantees of due process must be strictly observed27.

Article 33(2) of the Refugee Convention will not apply, however, if the removal of a
refugee results in a substantial risk of torture or cruel, inhuman or degrading treatment or
punishment. The prohibition of refoulement to such treatment is an inherent part of the
prohibition of torture and other forms of ill-treatment, as provided for under Article 3 of the 1984

26
UNHCR, Refugee Status Determination Self –study module 2, 1 September 2005.
27
UNHCR, Refugee Status Determination Self –study module 2, 1 September 2005.
UN Convention Against Torture, Article 7 of the ICCPR and regional human rights law. It has
risen to the status of a peremptory norm of international law, or jus cogens status and, as such, is
binding on all States, regardless of whether or not they have become party to the relevant
instruments28. In this context, it is also worth noting that the non-refoulement provision contained
in the 1969 OAU Convention, which applies to all those who meet its refugee definition, does
not foresee any exceptions.

The principle of non-refoulement as enshrined in Article 33 of the Refugee Convention

has developed into a norm of customary international law. This means that it is binding even on
States who are not Party to the Refugee Convention and/or Refugee Protocol 29. Under
international and regional human rights law, States are also precluded from returning a person to
a serious risk of violations of other fundamental human rights, for example the right to asylum
under Article 18 of the EU Charter of Fundamental Rights30.

2.3 RSD under a Regional Framework

The Cartagena Declaration on Refugees 1984 (the Cartagena Declaration) is a regional

instrument adopted by the Colloquium on the International Protection of Refugees in 1984. It is
based on the Refugee Convention, the American Convention on Human Rights 1969, the
doctrine of the Inter American Commission on Human Rights, and the Convention on Refugees
adopted by the Organization of African Unity in five countries in 1969. Brazil was one of the
five countries already have signed the Cartagena Declaration and it is included in most domestic
systems31.

The Cartagena Declaration broadens the definition of refugee contained in the Refugee
Convention, to include people who have fled their country because their lives, safety, or freedom
have been threatened by generalized violence, foreign aggression, internal conflicts, the massive
violation of human rights, or other circumstances that have seriously disturbed public order 32.

28
Erika de Wet, The Prohibition of Torture as an International Norm of Jus Cogens and Its Implications for
National and Customary Law, EJIL (2004), Vol. 15, No. 1.
29
UNHCR, Refugee Status Determination Self –study module 2, 1 September 2005.
30
Legal considerations on the return of asylum-seekers and refugees from Greece to Turkey as part of the EU-
Turkey Cooperation in Tackling the Migration Crisis under the safe third country and first country of asylum
concept – UNHCR, 23 March 2016. (http://www.unhcr.org/56f3ec5a9.pdf).
31
The five countries is Brazil, Mexico, Columbia, Ecuador, and Costa Rica.
32
UNHCR, Refugee Protection Section, Cartagena Declaration, 2008.
Brazil, Colombia, and Mexico have implemented the definition proposed by the Cartagena
Declaration within their domestic rules for the treatment of refugees, which is specifically
included within Act No. 9474/97 (Brazil), Decree 4503 (Colombia), and the Refugee and
Complementary Protection Act (2011) (Mexico)33.

The Cartagena Declaration did not establish binding law; it is after all the final text of a
gathering of academics and practitioners. When the Cartagena Declaration was adopted, most
Latin American States had neither national legal frameworks to deal with refugee matters nor
RSD systems in place. Thus, the Cartagena Declaration definition became a ‘common language’
of sorts that encapsulated contemporary protection concerns.34

In Ecuador, Article 2 of Decree 3293 dated September 30, 1987 (status - repealed)
recognized the refugee definition in the Cartagena Declaration. This definition was reiterated in
Article 2 of Decree 3301 (status - repealed), issued on May 6, 1992, published in Official Gazette
933 of May 12, 1992. Despite the amendment of this decree, on March 25, 2009, the definition
continued without alteration. Moreover, Ecuador applied the definition of the Cartagena
Declaration during its Enhanced Registration process (Registro Ampliado), a governmental
program implemented in 2009 and consisting of an eligibility system in situ at the northern
border, with the direct presence of an Eligibility Commission. This process represented a very
progressive and positive trend in the region. Ecuador’s current Executive Decree 1182 does not
include the Cartagena Declaration’s definition of refugee, despite its inclusion in previous
legislation and its broad application35.

According to Asociación de Consultores y Asesores Internacionales de Costa Rica

(ACAI), the Cartagena Declaration was de facto applied in Costa Rica for the admission of
refugees fleeing from the Central American conflict, however the expanded definition was never
included in the legislation.

http://www.acnur.org/index.php?id_pag=2302.
33
Karina Sarmiento And Jessica Soley, Refugee Status Determination In Latin America: Regional Challenges &
Opportunities The national systems of Brazil, Colombia, Costa Rica, Ecuador, and Mexico - Asylum Access
Ecuador 2013.
34
Michael Reed-Hurtado, The Cartagena Declaration on Refugees and The Protection of People Fleeing Armed
Conflict and Other Situation of Violence in Latin America, Division of International Protection June 2013.
35
Karina Sarmiento And Jessica Soley, Refugee Status Determination In Latin America: Regional Challenges &
Opportunities The national systems of Brazil, Colombia, Costa Rica, Ecuador, and Mexico - Asylum Access
Ecuador 2013.
 Furthermore, the important features of the Cartagena Declaration was enlarges the
refugee definition to include "...persons who have fled their country because their lives, safety or
freedom have been threatened by generalised violence, foreign aggression, internal conflicts,
massive violation of human rights or other circumstances which have seriously disturbed public
order". While the Cartagena Declaration is not a treaty, its provisions are respected across
Central America and have been incorporated in some national laws.36 The Cartagena Declaration
remains the most encompassing definition of a refugee to have emerged from Latin America”.37

Although not formally binding, the Cartagena Declaration has become the basis of
refugee policy in the region and has been incorporated in to the national legislation of a number
of States; implementation efforts still have to be improved38.

Mexico is the first country which follows all requirements of the Cartagena Declaration,
which means that they ratified the Declaration and enacted domestic law accordingly.

3. REFUGEE STATUS DETERMINATION IN MALAYSIA

At the first glance, the Malaysian government seems is taking no part in any processes
pertaining to refugees. All are being independently managed by UNHCR Malaysia (UNHCR,
2007; UNHCR, 2014). Since RSD in Malaysia is conducted by the UNHCR, it means Malaysian
government does not itself have a system for assessing refugees, and is not a signatory to the
Refugees Convention. The UNHCR is mandated to provide for the international protection of
refugees and, under Article 35(1) of the Refugee Convention. It has the task of supervising the
application of the rights of refugees in that treaty and has guidelines and protocols to govern the
RSD process, but the implementation is left to local officials. Since Malaysia is not a party to the
Refugee Convention, UNHCR plays a fundamental and crucial role of providing a broad
spectrum of refugee protection, from RSD to finding durable solutions. 39 In fact, in Malaysia

36
http://www.refugeelegalaidinformation.org/cartagena-declaration-refugees (Last seen on 12 January 2018).
37
Gibney, Matthew J./ Hansen, Randall (2005): Immigration and Asylum: From 1900 to the Present. Santa Barbara:
ABC Clio
38
http://www.hrea.org/index.php?doc_id=418
39
UNHCR, 2007
UNHCR is considered the main actor in safeguarding and assisting refugees by activities such as
reception, registration, documentation, status determination and resettlement of refugees, 40 but
the lack of a formal agreement in no way affects UNHCR's universal mandate to protect
refugees. 41

However, there have been some positive developments in 2010 and the first quarter of
2011. These have included the emergence of opportunities for UNHCR to present proposals to
the Government for the establishment of a legal and administrative framework for the
management of asylum, and the provision of assistance to refugees. UNHCR was also able to
advocate with the Government for the latter to allow refugees the right to work, as well as to
improve their access to education and health care. Finally, UNHCR has continued to encourage
the Government to become a signatory to the Refugee Convention and the Refugee Protocol. The
Government has indicated that it is currently considering these proposals.42 Recently Malaysia
has introduced Tracking Refugee Information System (TRIS) to update and gather data on
refugees. With TRIS, the government will have records of refugees and no loopholes will be
available for those who want to take advantage of the refugee status. Since the system began in
April 2017, only 291 refugees have registered in the TRIS out of the total number of 150,000
refugees registered with UNHCR in Malaysia.43

In Malaysia, the UNHCR office is situated in Kuala Lumpur, the capital city. It is the one
and only office in Malaysia, after it closed its office in Sabah. Thus, refugees have to approach or
get to their office in Kuala Lumpur to apply for RSD. This means refugees must travel to the city
to make application. The journey and its expenses may hinder refugees living far from Kuala
Lumpur form making the application. Furthermore, they may also refuse to travel in order to
avoid the authorities especially members of RELA who are reported to have extorted refugees for
money in return for being arrested. UNHCR monitors detention of refugees and intervenes where
necessary, represents refugees charged in court with offences under the Malaysian Immigration

40
UNHCR, 2014
41
Statute of the Office of the United Nations High Commissioner for Refugees, United Nations General Assembly,
December 14, 1950.
42
UNHCR Global Appeal 2012-2013
43
www.nst.com.my (last seen on 12 January 2018)
Act 1959, and organises outreach activities to refugee communities. 44 One such case in which
UNHCR intervene is the case of Iskandar v PP 45, where a boy aged 17 from Indonesia was
charged with an offence under the Immigration Act 1959 for illegal stay. Representative of the
UNHCR was present at the trial. The charge was then retracted when the prosecutor was satisfied
that the boy is a mandate refugee under the auspices of the UNHCR.46

Under current UNHCR procedure in Malaysia, all applicants are to be given a brochure
of five information sheets entitled "Information for Asylum-Seekers." These sheets state the
refugee criteria, including the definitions of "well-founded fear" and "persecution," but in
technical language. The brochure also explains what UNHCR can and cannot do. It does not
explain the application procedure for refugee status and is available only in English. The
UNHCR Handbook states that "the applicant should receive the necessary guidance as to the
procedure to be followed."47

4. REFUGEE STATUS DETERMINATION AT SELECTED STATES

Indonesia

Indonesia is not a party to the Refugee Convention relating to the Status of Refugees or
its 1967 Protocol, nor does it have a national RSD system in place 48. As a result, UNHCR
processes claims for refugee status in Indonesia on behalf of the Government and the
Government authorizes UNHCR to carry out its refugee protection mandate and to identify
solutions for refugees in the country49

As mention before, Indonesia is not a signatory to the Refugee Convention Relating to

the Status of Refugees; nor is there domestic law in place to protect refugees. Indonesia is a

44
UNHCR, 2014
45
(2005) 6 CLJ 205
46
South East Asia Journal of Contemporary Business, Economics and Law, Vol. 5, Issue 4 (Dec.)
ISSN 2289-1560
47
230 Art. 192 (ii).
48
Muzafar Ali and Linda Briskman, Asylum Seekers and Refugees in Indonesia: Problems and Potentials,
Cosmopolitan Civil Societies Journal, Vol.8, No.2, 2016.
49
http://www.unhcr.org/id/en/unhcr-in-indonesia (Last Seen on 11 January 2018)
transit country (rather than a destination country), where many asylum seekers and refugees
previously intended to stay for only a short time before travelling onwards to Australia. As a non-
signatory to the Convention, Indonesia does not conduct refugee assessments, nor offer any
pathways for refugees to attain permanent residency there. Nonetheless, Indonesia hosts more
than 13,000 refugees and asylum seekers; mostly from Afghanistan and Pakistan, but also from
Myanmar, Iraq, Iran, Sri Lanka and other countries.50

Other organisations that work with refugees and asylum seekers in Indonesia are:
International Organisation for Migration (IOM), Church World Service (CWS) and Jesuit
Refugee Service (JRS). They are all different organisations and are not part of UNHCR51.

The UNHCR carries out a thorough RSD procedure, which starts with registration of
asylum-seekers to collect basic biodata, photographs, iris scans, and a summary of the
individual’s reasons for leaving their home country to seek international protection. Following
registration and issuance of individual documentation, UNHCR conducts detailed interviews
with each individual asylum-seeker accompanied by a qualified interpreter. This process assesses
the individual’s credibility and provides a reasoned decision as to whether the individual
qualifies for refugee status under UNHCR’s mandate because of a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social group, or
political opinion. The procedure includes an assessment of potential exclusion, in which UNHCR
determines whether an individual who is otherwise qualified for refugee status might be
undeserving of international protection because he or she committed crimes against humanity,
war crimes, serious non-political crimes, or crimes that are contrary to the principles of the
United Nations. For those who are initially found not to be refugees, the procedure allows the
individual an opportunity for appeal that decision to UNHCR because UNHCR are only the one
that conducted all RSD procedures for Asylum and Refugee in Indonesia52.

In late 2016 the President of the Republic of Indonesia signed the Presidential
Regulation on the Handling of Refugees, which contains key definitions and sets out processes
for the detection, shelter and safeguarding of refugees and asylum-seekers. With consideration to
50
UNHCR 2016, Indonesia Fact Sheet. February. UNHCR, Jakarta. (http://www.unhcr.org/en-
my/protection/operations/50001bda9/indonesia-fact-sheet.html) (Last Seen 11 January 2018).
51
UNHCR Refugee Status Determination (“RSD”) Self Help Kit for Asylum Seekers in Indonesia: Reopening –
SUAKA (Indonesian Civil Society Network for Refugee Rights Protection), March 2015.
52
http://www.unhcr.org/id/en/refugee-status-determination (Last Seen on 11 January 2018)
implement the provisions of Article 27 paragraph (2) of Law Number 37 of 1999 on Foreign
Relations, President Joko ‘Jokowi’ Widodo on 31 December 2016 signed a Presidential
Regulation (Perpres) No. 125 of 2016 on Handling of Refugees from Abroad53. It is anticipated
that provisions contained within the Presidential Regulation will be implemented in the near
future and that it will bring about closer working relationships between the Indonesian
Government and UNHCR, including joint registration of asylum-seekers.

Surrounded by States hosting large numbers of asylum-seekers and refugees, such as

Malaysia, Thailand and Australia, Indonesia is impacted regularly by mixed population
movements. After a lull during the late 1990s, the number of asylum-seekers arriving at
Indonesia began to increase in late 2000, 2001 and 2002. Arrivals slowed down from 2003 to
2008, but again picked up in 2009. In 2016 and 2017 the number of persons registering with
UNHCR has remained relatively stable. Indonesia hosts some 14,500 refugees and asylum-
seekers from some 52 different countries as of May 2017, with roughly half originating from
Afghanistan.54

UNHCR’s protection activities begin with ensuring that refugees and asylum-seekers are
protected from refoulement – in other words, from forced return to a country or territory where
their lives or freedom might be in danger.

For those found to be refugees, UNHCR will begin to look for one of a range of what
UNHCR calls comprehensive solutions. Traditionally, these solutions have included resettlement
to a third country, voluntary repatriation (if a person is able to return in safety and dignity), and
local integration in the country of asylum.

However, in the current global refugee crisis, with more than 65 million persons
displaced around the world, UNHCR is working to identify a range of other solutions, including:
temporary stay measures that allow refugees access to self-reliance opportunities until a longer-
term solution can be found; complementary pathways, such as university scholarships, labor
migration schemes, and State-facilitated family reunification.55

53
http://setkab.go.id/en/president-jokowi-signs-presidential-regulation-on-handling-of-refugees-from-abroad/ (Last
Seen on 12 January 2018)
54
http://www.unhcr.org/id/en/unhcr-in-indonesia (Last Seen on 12 January 2018)
55
http://www.unhcr.org/id/en/unhcr-in-indonesia (Last Seen on 12 January 2018)
 Finding an appropriate longer-term solution for each refugee is a complex and often
lengthy process that involves considering the particular circumstances of the individual or family
and identifying solutions that match their particular needs.

As of June 2017 there are 5,274 asylum-seekers and 8,819 refugees under the protection
of UNHCR in Indonesia.56 The number of Refugee and Asylum-seekers approaching UNHCR’s
Office in Indonesia are lower compared to 152,420 Refugees and Asylum-seekers in Malaysia57.

Brazil

Brazil has shown a willingness to seek joint and progressive solutions to meet its
international obligations pursuant to treaties and international standards for the right to asylum.
Additionally, this region has taken steps to be a leader in the field of refugee recognition and
protection. The fact that Brazil was one of the States have ratified the Refugee Convention and
its Refugee Protocol is indications of leadership on the subject. In addition, broad consensus on
the importance of refugee protection is evidenced by multiple regional efforts, including: the
Cartagena Declaration; the International Conference on Central American Refugees (CIREFCA)
in 1989; the Mexican Declaration and Action Plan to Strengthen the International Protection of
Refugees in Latin America of 2004; as well as the Brasilia Declaration on the Protection of
Refugees and Stateless Persons in the Americas of 2010.

The Declaration of Principles of Mercosur on International Protection of Refugees of

2012, signed by states of Brazil. It highlights the commitment of States to harmonizing country
laws in order to strengthen the protection and integration structures for asylum-seekers and
refugees, ensuring respect for the human rights of refugees and their families. Further, the
expanded Mercosur has been declared a humanitarian space for the protection of refugees58.

The Refugee Convention and its Refugee Protocol have been ratified by Brazil, most
without imposing any reservation, which issued an express reservation to Articles 26, 31, 32 and
items a), b) and c) of Article 17, concerning the right to work and place of residence.
56
http://www.unhcr.org/id/en/unhcr-in-indonesia (Last Seen on 12 January 2018)
57
www.unhcr.org (last seen on 11 January 2018).
58
See Ministerio de Justicia de Brasil, Extranjeros – CONARE; República Federativa do Brasil, Lei no 9.474,
information provided by IMDH. Available at:
(http://refugees.org/wp-content/uploads/2015/12/cartagena_INGLES_2803.pdf) Last Seen on 12 January 2018)
 Currently, the Refugee Convention is included in the domestic legislation of Brazil
through Act. No. 9474/97 (1997). Moreover, the right to seek asylum and refugee status is
included in the Constitutions of Brazil in 1988. The legislation in Brazil recognizes the
declarative nature of refugee status, i.e. a person is a refugee as soon as he or she meets the
requirements set forth in the definition. Even if a person has not been identified as a refugee, he
or she should be considered as such because of the declarative and not constitutive nature of the
decision to grant refugee status.59

Brazil has established a structure for the commission responsible for RSDs. Comite
Nacional para los Refugiados (National Committee for Refugees) CONARE is a collegial inter
ministerial body under the Ministry of Justice with representatives from government, civil
society and the United Nations. It was created by Act No. 9474, approved on July 22, 1997.The
powers of the CONARE under Article 12 of Act No. 9474 (1997), are: (a) analyse the request for
declaration or recognition, in the first instance, of refugee status; (b) decide to cease refugee
status, in first instance, ex officio or pursuant to a request from competent authorities; (c)
determine the loss in the first instance, of refugee status; (d) guide and coordinate the necessary
and effective actions for the protection, assistance, and legal support for refugees; and (e)
approve normative instructions regarding this law.

CONARE may use any source or jurisprudential doctrine that seems useful, valid, or
suitable. The recent case of Haitians requesting asylum in Brazil is one interesting example: after
the earthquake in 2010 many Haitians arrived in Brazil and submitted asylum applications. After
reviewing a number of applications, CONARE established that such requests were unfounded.

Thus, based on ExCom Conclusion 3060 and a Resolution of the Conselho Nacional de
Imigração (CNIg) (National Immigration Council) focusing on humanitarian cases, analysis and
decision was transferred to National Immigration Council (CNIg) for all cases. Thus, these
Haitian asylum seekers benefited from access to permanent residency on humanitarian grounds.
In addition to Act No. 9474/97, which is relatively complete, there are resolutions issued by

59
Karina Sarmiento And Jessica Soley, Refugee Status Determination In Latin America: Regional Challenges &
Opportunities The national systems of Brazil, Colombia, Costa Rica, Ecuador, and Mexico - Asylum Access
Ecuador 2013.
60
EXCOM, Conclusion No. 30, UNHCR, The Problem of Manifestly Unfounded or Abusive Applications for
Refugee Status or Asylum, No. 30 (XXXIV)—1983. from http://www.unhcr.org/refworld/docid/3ae68c6118.html.
CONARE and National Immigration Council (CNIg) with specific guidelines to be followed by
the RSD process and to ensure due process. For example in CONARE Normative Resolution 6,
26 May 1999, provides for the concession of a protocol to asylum seeker. Once the asylum
seeker has the Provisional Protocol, he or she is entitled to have a labour license and a document
relevant for financial purposes called the Register of Natural Persons (Cadastro de Pessoas
Físicas, or CPF); so that he or she can begin to integrate into Brazilian society more fully61.

Brazil stands out due to the tripartite participation in decision making in the RSD
procedure. At this time, the head organization at the commission meetings is Caritas
Arquidiócesis Río de Janeiro. However, it is important to highlight that it acts on behalf of the
Network of Organizations for Migrants and Refugees (Red de Organizaciones para Migrantes y
Refugiados),62 which specializes in refugee issues. Further, IMDH notes that a Study Group
exists which meets prior to the plenary session, analyzes all applications, evaluates whether the
process is well-implemented, and drafts an opinion which is then taken to the plenary.
Importantly, although only one organization votes, there are several civil society actors who are
directly involved with participation at CONARE meetings; providing guidance in processes,
interviews, and opinion on eligibility; cooperating in all working groups, and providing public
policy proposals or administrative actions in favor of refugees, as reported by IMDH and there is
no deadline to file an application for asylum. 63

IMDH reported that the refugee or asylum seeker does have access to his or her case file,
even though the refugee law 9474/97 does not specifically states this. In the case of Brazil, the

61
Liliana Lyra JubilutandSilvia Menicucci de Oliveira Selmi Apolinário, Refugee Status Determination in Brazil: A
Tripartite Enterprise, Refuge, Volume No. 25.
62
The Solidarity Network for Migrants and Refugees, consists of about 45 institutions that maintain constant
communication. The following are included among the functions of the Network: provide institutions with mutual
support in actions on refuge, share experiences, training sessions, debates, draft proposals and reports, production
reports and raise issues jointly, whether for the government or UNHCR, or before the organizations themselves, i.e.
to civil society. (See the Network at www.migrante. org.br). Some of the most representative organizations that deal
with issues of refuge in Brazil, and closer to the government for the work that they do, according to IMDH are:
Caritas Arquidiocesana de Rio de Janeiro, Caritas Arquidiocesana de Sao Paulo, Centro de Defensa de Derechos
Humanos de Guarulhos, Associação Antonio Vieira, Instituto Migrações e Direitos Humanos, Caritas
Arquidiocesana de Manaus, Pastoral da Mobilidade Humana da CNBB and Pastoral da Mobilidade Humana de
Tabatinga
63
Karina Sarmiento And Jessica Soley, Refugee Status Determination In Latin America: Regional Challenges &
Opportunities The national systems of Brazil, Colombia, Costa Rica, Ecuador, and Mexico - Asylum Access
Ecuador 2013.
authority responsible for the access of the case file is the General Coordinator and Secretary of
CONARE.

It is important to highlight the role and efforts made by NGOs in Brazil to assist and
support asylum seekers with various types of services, such as free legal advice on RSD, access
to rights in the host country (e.g. the right to work, housing, social security, etc.), and the
provision of humanitarian assistance after arrival. This participation is part of the framework of a
democratic rule of law, which allows involvement of civil society actors in such actions in
support of governments in their efforts to ensure the human rights of refugees.

In the specific case of RSD proceedings, the NGO’s involved in this report, provide a
number of free services aimed at facilitating refugees and asylum-seekers to effectively exercise
their rights under the Refugee Convention.

In Brazil, civil society plays an important role in the RSD process, and it is directly
involved in CONARE. In this case, IMDH as well as Cáritas Arquidiocesanas de Río de Janeiro
y de São Paulo, conduct interviews with applicants and prepare an opinion which provides a
legal basis for the civil society position that is presented to all members of the commission,
CONARE, so it can be considered within the adjudication process. In the same way, it provides
assistance to applicant in administrative recourses, even though does not provide formal
representation.

Based on information submitted by the organizations that participated in the report, we

have identified several areas where these NGOs are providing assistance and support during the
RSD process: i) legal orientation on RSD procedures and refugee rights, ii) support during the
filing of the application, iii) legal advice for the first instance, iv) development of administrative
appeals and motions for reconsideration, and v) judicial recourses. Some organizations conduct
other activities related to access to rights and integration in general.

In Brazil, IMDH reported a number of best practices by the Brazilian government on the
issue of access to the right to work, health, legal representation, education and training,
resettlement, permanent residence, housing, and other types of support for asylum seekers. For
example, the government grants the applicant the right to legally work in the country, alongside
all the other rights from the moment that he or she submits an application. Once recognized, the
refugee has a right to request permanent residence in Brazil four years after his or her recognition
as a refugee64.

The UDHR, the ICCPR and its Protocol, the ICESCR, Social and Cultural Rights, the
American Convention on Human Rights, the Brasilia Declaration on the Protection of Refugees
and Stateless Persons in the Americas (2010) are other instruments that guarantee
and protect the rights of refugees and asylum-seekers. Brazil was the country that incorporates
most of these human rights instruments into their constitutions and has established specific laws 65
in many cases.

The total refugee and asylum population in Brazil amounts to 9,077 persons. Between 1
January and 30 June 2016, 5,685 asylum claims have been registered by the Government of
Brazil (GoB). By the start of 2016, there were 20,815 applications pending analysis. Taking into
consideration the 5,685 asylum claims during the first semester, and the 761 cases analysed in
the first semester, UNHCR estimates that the backlog now is of 25,739 cases. The Government
of Brazil has been facing serious challenges in its RSD system, as the incoming caseload is much
larger than what the National Refugee Committee’s (CONARE) structure is able to process.66
These numbers are the most current statistic that published in UPR 27th Session represents a
significant shift in the profile of refugee and asylum-seekers compared to Malaysia and
Indonesia. As mention before all the application from the refugee and asylum has been making
efforts by Brazil’s Tripartite Participation to provide the best RSD’s system to the majority of
Refugee and Asylum.

5. CONCLUSION

64
Karina Sarmiento And Jessica Soley, Refugee Status Determination In Latin America: Regional Challenges &
Opportunities The national systems of Brazil, Colombia, Costa Rica, Ecuador, and Mexico - Asylum Access
Ecuador 2013.
65
The Brazilian Constitution of 1988 enshrines, at various times, the principle of respect for human rights and since
its enactment, a great debate arose about the range of human rights treaties in the Brazilian legal system. To end this
debate, a constitutional amendment in 2004, was added to the 3rd paragraph of Article 5 of the Constitution. After
this amendment, human rights treaties approved by Congress with a quorum of three fifths of the votes, in two
shifts, in each of the legislative houses (Senate and Chamber of Deputies), will have constitutional hierarchy. This is
exactly the same procedure to vote on constitutional amendments. Information provided by IMDH Brazil.
66
UN High Commissioner for Refugees (UNHCR), UNHCR Submission on Brazil : UPR 27th Session, September
2016, available at: http://www.refworld.org/docid/5a12b53d0.html [accessed 14 January 2018]
 This research found that there are some weaknesses and loopholes in the practice of RSD
in Malaysia. Since it is independently managed and conducted by UNHCR Malaysia, Malaysian
government does not itself contribute to the assessment and resettlement. It undeniably leads to
lacks of transparency in the procedure, question of its justice quality and a very delay time for
the approval of every applications. These indeed affects the economy of Malaysia since Malaysia
relies so much on migrants workers. Therefore, it is strongly suggested that Malaysia officially
recognise the presence and existence of refugee in this State by regulating the group and
facilitate their enjoyment of their rights. It is also vital to stop practices which are in violation of
the principle of human rights of refugees such as detention and imprisonment because these will
not serve any purpose for Malaysia. The refugees cannot be easily sent back and they may
remain in detention centre for longer, placing more financial burden on the authorities especially
relating to infrastructure and resources. If the refugee are to be deported, Malaysia is actually
contributing to human trafficking and smuggling since traffickers are known to take advantage of
refugee deportations.

It is high time that Malaysia devises a specific legal and institutional framework
to deal with refugees in the country. The law should require the establishment of an independent
refugee screening mechanism which is subject to appeal and judicial review. Since UNHCR has
no outright control over State matters, which makes the effort less effective than it should be,
Malaysia should take the forward step to enhance the RSD procedure. The significant of this is
that it will make it more reasonable for the government to combat economic migrants. Lastly,
UNHCR has to live up to its role as “guardian” of international refugee law, remembering that
the law is only there to protect the people it was designed to assist, so that political and/or
economic considerations should be kept to a minimum in light of the humanitarian plea of
refugees. The design of the tripartite RSD in Malaysia, involving UNHCR, the Malaysian
government, and civil society is definitely a “best practice” in terms of RSD and refugee
protection, but its results must go from the local/subjective to the national/objective (positive
law) level, and then become a model to be mutatis mutandis duplicated in other States.

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