Malaysia is responsible for protecting Rohingya refugees on its soil. But when it fails to do so, UNHCR, which the U.N. General Assembly has entrusted with "providing international protection . . . to refugees" and "seeking permanent solutions" for refugees, has a greater responsibility to provide protection.200 Malaysia's reluctance to cooperate with UNHCR makes the organization's work difficult, and it needs more support than it currently receives from the international community. Nonetheless, UNHCR should be providing protection and seeking durable solutions for the Rohingya in Malaysia. UNHCR, however, takes the position that the Rohingya are "less vulnerable than other alien/refugee populations in Malaysia," that they are "informally tolerated by the Malaysian authorities," and that they "are not, in general, exposed to deportation and are able to live and work unofficially in the country."201 Our findings, detailed above, indicate that this is not the case, and to the extent that UNHCR considers the Rohingya in Malaysia a lower priority on this basis, it should reconsider its evaluation of conditions in Malaysia. In addition, UNHCR should realistically assess the conditions the Rohingya would face were they to return to Arakan, taking into account their uncertain citizenship status. It should also address problems with access to the Kuala Lumpur office and improve the procedures for refugee status determinations. With limited resources and an uncooperative host government, UNHCR faces an unenviable task in Malaysia. But it should not let the Rohingya fall through the cracks.
This section first addresses the basis for UNHCR's operations in Malaysia and how the office functions there, including UNHCR's past policies for Rohingya in Malaysia and how the current status determination process works. Second, problems with access and refugee status determination procedures are discussed. Finally, this section looks at UNHCR's assessment of conditions in Arakan and its high rates of denial of refugee status for Rohingya. Evidence suggests that, among other things, UNHCR is not giving sufficient weight to the implications of statelessness. A detailed analysis of the implications of statelessness for both long-term and interim remedies is set forth separately in section VI.
The basis for UNHCR's operations in Malaysia comes from its work with Vietnamese refugees who flooded into Malaysia in the 1970s and 1980s and from the 1989 Comprehensive Plan of Action (CPA), the international agreement providing for the screening of these refugees for refugee status and their resettlement to third countries or repatriation.202 Since the CPA's end, UNHCR has had no formal written agreement with the Malaysian government, either for its presence in the country or for the conduct of its activities there. Nevertheless, it maintains a liaison office in Kuala Lumpur, and Malaysia has continued formally to accredit UNHCR representatives in the country. With a staff much smaller than in the CPA years, the Kuala Lumpur office serves all of Malaysia-there are no UNHCR offices in the eastern Malaysian states of Sabah and Sarawak. The staff was further reduced in 1999, following the violence surrounding East Timor's independence, when the Head of Office and other personnel were sent to East Timor, leaving only two junior protection officers and a few local staff. 203 By July 2000, there was only one protection officer in the office, and the Head of Office position had yet to be filled.204
The lack of a formal agreement in no way affects UNHCR's universal mandate to protect refugees.205 But because it has no formal agreement with the Malaysian government, UNHCR's interventions with the government on behalf of refugees are ad hoc. When, for example, Malaysia detains refugees for deportation, UNHCR makes an appeal directly to government officials. But UNHCR can intervene only if it first learns that a refugee is being detained. As Malaysia has no provision for identifying refugees or informing UNHCR that a refugee has been detained or deported, UNHCR must depend on other sources for this information, including the detainees themselves, their friends and relatives, and NGOs.
Rohingya in Malaysia
The Three Policies: 1992-1999
Since 1992 UNHCR has had three different policies for Rohingya in Malaysia. First, in 1992, UNHCR issued Rohingya letters stating that they had approached the Kuala Lumpur office "applying for recognition of refugee status" and that they were "considered to be refugees under the High Commissioner's Mandate." Families who applied were issued one letter listing each
member's name. For several months, Rohingya received financial and material assistance through the Malaysian Red Crescent Society, including rice, milk, butter, blankets, and cash. Many Rohingya told Human Rights Watch that they believed this letter signified that they were recognized as refugees.206
After about six months, UNHCR in 1992 took back these letters and began issuing a new document, which UNHCR called a "certificate" or "attestation letter." The certificate was a single sheet of paper stating that the individual had "registered as a Muslim from Myanmar" with the UNHCR liaison office in Kuala Lumpur. Included on the certificate were family members' names, dates of birth, and photographs. A UNHCR protection officer in Kuala Lumpur told Human Rights Watch that this information was included because the Rohingya usually had no other identity papers, suggesting that this letter was to serve as a sort of interim identification document. The certificate listed an expiration date and had to be periodically renewed. The office issued the certificate both to those who had received the first letter and to others who applied before December 31, 1993. As of that date, 5,100 Rohingya were registered with UNHCR in Kuala Lumpur, and the office stopped issuingcertificates to Rohingya approaching the office.207 However, it did continue to renew the certificates of those who already had them. A Rohingya man who arrived shortly after the cut off told us, "When I reached Kuala Lumpur, I went to UNHCR and asked for help. They said that in 1993, the Rohingya chapter was closed and there was no more registration."208 No refugee status determinations were conducted at this stage.209 This certificate was helpful to those who had it. Parents used it to enroll their children in government primary schools. And with the crackdown on foreigners' use of medical services and the imposition of double fees for foreigners in 1996, Rohingya sometimes showed the document to get public medical care. (See section VI below.) It could also be presented to local police checking for passports, although in many cases, as discussed above, the police ignored or destroyed the certificate or requested a bribe anyway.The policy of renewing certificates continued until December 1998 when UNHCR stopped renewing the certificates and adopted a third policy, beginning to screen Rohingya individually for refugee status. UNHCR changed its policy for several reasons. As the crackdown on foreigners increased in the late 1990s, UNHCR's Kuala Lumpur office had become concerned that Malaysian police and immigration officials were no longer respecting the certificates but instead were proceeding to detain the bearers regardless. Worse, officials were confusing the document with letters indicating actual refugee status, which undermined the authority of those letters in the minds of police and immigration officials. The office also believed that some Rohingya were using the document to beg for money. Moreover, the Rohingya themselves requested individual determinations, according to UNHCR, because the certificates left their personal status unclear and kept them from being eligible for the durable solutions available to refugees. Finally, UNHCR points to the repatriation of Rohingya from Bangladesh as inspiration for the change.210
M. Kadir, who has a wife and four children in Malaysia, has experienced each of the three policies:
In 1992 I went to UNHCR and was recognized as a refugee. I received humanitarian assistance with my family: food (rice, bread, milk) for about five months plus RM900 for one month . . . . After five months they said they could not give any more assistance and were going to cancel the letter and issue another. This letter only said that we were registered. Until 1999 this letter was renewed . . . but it was stopped in January . Then I filled out a new application form. I had an interview and I was rejected. I appealed and was rejected again. . . . I would like to go back [to Burma], live my life, live peacefully. My children are growing up. But I cannot go back and I cannot stay here because I am not a refugee.211
Status Determination Process in Kuala Lumpur
Applying for refugee status requires a minimum of two visits to the UNHCR compound, but typically involves more. First, asylum-seekers must approach the UNHCR gate, where, on their first visit, the guards do not allow them to enter, instead giving them a pre-interview form to fill out. This form, which must be filled out on a bench at the gate, is available in English and Bahasa Malaysia and is to be completed in one of those languages. When we asked a protection officer how Rohingya who could not speak either language could fill out the form, we were told that most Rohingya could manage one of those languages and that the office had had no complaints. Many of the Rohingya we interviewed, however, spoke little or no English or Malay. The guards are also supposed to give applicants a brochure in English that defines who is a refugee and what UNHCR can and cannot d, and a UNHCR protection officer told us that local staff often go to the gate to monitor this process.212
Sometime after the first visit, the asylum-seeker is mailed a letter giving a time and date for an interview with a protection officer. Two protection officers in Kuala Lumpur conduct all of the interviews, and in 1999, the office received 1,597 applications for Rohingya alone.213 At the interview, an interpreter is provided if necessary. Afterwards, UNHCR notifies the asylum-seeker of its decision by mail. Rejection letters are standardized-they do not contain individualized reasons for denial of status. Rejected applicants may appeal. UNHCR's Kuala Lumpur staff told Human Rights Watch that, because many Rohingya lack education and language skills, they send out appeal submission letters along with the rejection notifications, rather than waiting for individuals to approach the office again. On appeal, one of the two protection officers reviews the other's decision, often conducting a further interview, but no appeal beyond the Kuala Lumpur office is available.214
Those whom UNHCR recognizes as refugees receive a letter to this effect and are eligible for a daily subsistence allowance, with extra allowances for small children. According to a protection officer in Kuala Lumpur, applicants do not receive assistance during the application process as decisions are usually made quickly; however, the office would consider giving assistance if a decision could not be reached within one to two weeks. Many of the Rohingya we interviewed, however, said that they had waited several months between being interviewed and obtaining their decisions, with the entire process, from filling out the pre-interview form to the final appeal, lasting six months or longer.
Once recognized, refugees are slated for resettlement to a third country, as Malaysia has no provision for local integration of Rohingya.215 Indeed, UNHCR's Kuala Lumpur office told us that it seeks to resettle refugees as quickly as possible because refugees face a constant threat that the Malaysian government will detain them and return them to countries where they would be at risk of persecution. "Local integration in Malaysia is nearly impossible because Malaysia has not signed the Refugee Convention and does not have any refugee law," UNHCR told us. We were told too by UNHCR in Kuala Lumpur that while it encourages voluntary repatriation for some refugees, it is "not really encouraging voluntary repatriation for the Rohingya."216 In contrast, the Bureau for Asia and the Pacific with UNHCR's headquarters in Geneva told Human Rights Watch that Rohingya in Malaysia are resettled "on the basis of the same criteria as other refugees in Malaysia, inter alia, protection-related reasons (including arbitrary or prolonged detention), family reunification, women at risk, vulnerable groups etc.," although it believed that "Rohingya refugees are informally tolerated by the Malaysian authorities and are better able to de facto integrate in that country than refugees of other backgrounds."217
Access and Procedure
Some of the procedures in place for refugee status determinations in Kuala Lumpur are commendable. For example, the UNHCR office distributes a brochure defining refugee status, albeit only in English. In addition, almost all Rohingya we spoke to confirmed that they had had an interpreter at their interview, had been able to appeal the decision, and had been interviewed at least two or three times. However, other aspects of the process are not in accord with international standards and UNHCR's own procedures as set out in its Handbook on Procedures and Criteria for Determining Refugee Status ("Handbook"), training modules on Interviewing Applicants for Refugee Status and Determination of Refugee Status, and internal memoranda for staff on status determinations for particular nationality groups.218 Where UNHCR's procedures differ from these documents, they should be modified so that the refugee status determination process is more fair and more accessible to asylum-seekers.
to the Kuala Lumpur Office
For Rohingya, simply getting to the UNHCR office in Kuala Lumpur is problematic. UNHCR has one office for the whole of Malaysia, and it is located on a hill near the national palace in a neighborhood of colonial-era homes, far from Cheras Baru and Ampang, neighborhoods in Kuala Lumpur with sizable Rohingya communities. Asylum-seekers who reside in other parts of the country must travel to the capital for each appointment.
There is no public transportation to the neighborhood where UNHCR's office is located. Asylum-seekers must therefore either walk or travel by taxi. Most, in fact, consider it necessary to go by taxi in order to avoid exposure to local police. One asylum-seeker explained how he traveled to the compound from his home in Cheras Baru: "I went by taxi because there are no buses that run there. I had to pay over RM20 [U.S.$5] for the taxi-I also paid the taxi to wait because there is no taxi stand nearby, and I don't want to be walking because I'm afraid of police."219 We interviewed one man who had been stopped by the police while walking to the UNHCR office: he said that he paid them money and then fled, never reaching the UNHCR office.220 The cost of a round-trip taxi and lost work is sometimes prohibitive, as one man explained: "UNHCR gave me many appointments. Sometimes when the date came I didn't have the money to get there."221 These risks are multiplied by the number of visits UNHCR requires. Sadiq M., who was eventually denied refugee status in 1999, told us that since 1992 he had been to UNHCR "many times, more than ten times to get a document and each trip cost RM15. [Sometimes] I was not even allowed into the compound."222
While low recognition rates are clearly a primary cause of the Rohingya's frustration and disillusionment with UNHCR, the costs and risks associated with applying for refugee status are also an obstacle to the vigorous pursuit of their cases. For example, one Rohingya man told Human Rights Watch: "When I went for my second interview, I was called inside and told that they were having an emergency meeting. I was given another date. I didn't go because it was too expensive and knew most people were getting rejected. . . . I went with three otherpeople but they were all rejected."223 Another told us, "I never have been to UNHCR because I know people who were caught there, and everyone gets rejected."224 Once asylum-seekers reach the office gate, the guards may discourage them from applying or give them incorrect information about the application process. Human Rights Watch interviewed John, a Christian from Rangoon, shortly after he had approached UNHCR on November 25, 1999:First I called the main number and a woman told me to come. . . . When I got there I went to the gate and spoke to two Nepalese guards. I said that I wanted to meet an officer. They told me that no one had an appointment for the morning. I said that I spoke to a woman that morning and she told me to come. They asked me why I came there. I said that I wanted to meet with an officer to discuss it. They asked me why I wanted to meet with an officer. I said I wanted to apply for a U.N. passport, and I wanted to know how to apply. I told them that I am Burmese. The guard said that the Burmese had problems in 1992 but now the [papers] for Burmese are closed and Burmese people cannot apply: "Why can't you go back to Burma? You can go back. We have no need to discuss this-the Burmese time is past." I said that I wanted to meet with someone inside to get information. The guard said, "If you want any information, ask me. Have you got documents? Show me." I said that I wanted to apply for a passport because I did not want to go back to my country. The guard said, "Everyone says that. Why can't you go to Myanmar?" I said that I have problems. The guard asked if I was working, if I had a job. I said yes. The guard said that because I had a job I was not a refugee. He then asked for my NLD [National League for Democracy] documents: "Please show them to me as proof." I showed him my Burmese passport, and he took it to his office. He brought back a form and said that I should fill in the blanks then-that I had 2 hours to do it. He asked if I could write in English. When I looked at the form, I saw that there were lots of questions and many looked difficult. I said that I did not have time then because I had to go to work. The guard took the form back from me. I asked if I could take the form home and bring it back. The guard said, "No, you have to fill it out right now." I did not want to fill out the form then because my English is not good enough so I left.225
The guard did not give John an informational brochure, and when we spoke with him several days later, he still had no understanding of what refugee status was or how the application process worked. According to UNHCR headquarters, the correct procedure is for a guard to ask only the applicant's name and the purpose of his or her visit. He should then communicate this information to a UNHCR staff member who should assist the applicant.226
The gates and guards date back to the time of the CPA, when many more refugees were approaching the office.227 But a protection officer told us that the UNHCR office had more recently received threats from disgruntled asylum-seekers, and Acehnese asylum-seekers fleeing deportation to Indonesia occupied the grounds in 1998: hence the office's policy of preventing asylum-seekers from coming inside on their first visit. The officer also mentioned a protest by Rohingya on August 25, 1999, outside the UNHCR compound.228 But the Rohingya's exercise of their free speech right to demonstrate is no justification for keeping all asylum-seekersoutside the gate. While threats may justify UNHCR's taking reasonable security measures, these measures should be appropriately tailored so as not to inhibit legitimate asylum-seeker's access to the office. Security precautions recommended in UNHCR's 1995 training module on Interviewing Applicants for Refugee Status do not include barring all first-time visitors.229
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 "[t]he applicant should receive the necessary guidance as to the procedure to be followed."230 Accordingly, in Human Rights Watch's view, the current brochure should be redrafted so that it can be easily understood by persons without expertise in refugee law and so that it describes clearly the application procedure. Visually, the brochure is also somewhat difficult to follow, and this too should be addressed. Further, the amended brochure should be translated into the languages of all major groups approaching the office, and UNHCR's Kuala Lumpur staff should ensure that it is available to all asylum-seekers, not simply those who a staff member believes might be recognized. In addition, copies of the brochure should be made available to NGOs such as Tenaganita that have contact with asylum-seekers and should be given to the Malaysia's Immigration Department, which should be urged to distribute it to asylum-seekers in detention and at ports of entry.
Legal or advocacy assistance to prepare for the refugee status interview is not available to applicants. In Malaysia there are no non-governmental organizations that assist persons seeking refugee status from UNHCR, and UNHCR does not promote funding for or encourage such assistance. Indeed, Human Rights Watch was not able to locate a single attorney who claimed to specialize in Malaysian immigration law for detained undocumented workers, let alone in refugee law. Nor does the Malaysian Bar Council list immigration as within the scope of available legal advice and assistance, although "detention" is covered.231 UNHCR does not permit advisers or representatives to be present at the interview. However, in its general advice to governments, UNHCR recognizes the importance of independent legal advice and assistance for asylum-seekers. UNHCR should consider providing training or financial support to the Malaysian Bar Council or to other non-governmental organizations in order that the capacity to provide such legal assistance be developed.232
When applicants are denied refugee status, they receive notification by mail. This letter is standardized-it does not give particular reasons for the applicant's rejection. The letters that Rohingya showed to Human Rights Watch stated, "You could not show that you suffered or would suffer treatment of such a gravity that it would amount to persecution. You have not been able to substantiate your fears of being persecuted in your home country upon return today."233 This is inadequate and does not conform to the standard which UNHCR itself recommends. International due process protections and UNHCR's own training module on the Determination of Refugee Status require rejection letters to state the reasons for the decision with sufficient specificity that they can be understood be the person rejected.234 Hence, the obligation to state reasons is not satisfactorily fulfilled by using standard formulae. Every person is entitled to know the specific case against her or him. Just as governments are required to provide reasons for denying status, so should UNHCR be required to provide those reasons. According to the refugee legal scholar Guy Goodwin-Gill:Reasons for decisions are an essential pre-requisite for fundamental justice, allowing the applicant for refugee status to know why his or her claim has been refused and to make a meaningful appeal or application for review. The reasons alone will be practically meaningless, however, unless accompanied by a statement of the relevant facts. The reasons requirement provides justification for the decision, showing that the decision-maker has identified the material facts in the applicant's claim; identified relevant country of origin evidence and assessed its weight; assessed the credibility of the applicant; identified and interpreted the relevant rule or rules of law; applied the law to the facts in a reasoned way . . . ; and determined whether the claimant is a refugee.235
UNHCR maintains, nonetheless, that it lacks the resources to provide individualized reasons for rejection, but staff are permitted to explain orally those reasons to applicants who request them.236
In Malaysia, rejected applicants do not have access to their files, including the evidence relied upon and notes from their interviews. According to a UNHCR protection officer in Kuala Lumpur, in order to determine whether the applicant has a well-founded fear of persecution, the officers consider country of origin information such as newspaper articles, communications from UNHCR headquarters, and data from other applications.237 Without knowing what this evidence says or being able to review the protection officer's interpretation of their testimony, applicants have no way to challenge its accuracy. Consequently, applicants are not able to meaningfully appeal the decision. From August 1999 to April or May 2000, there were two UNHCR protection officers in the Kuala Lumpur office to handle all status determinations for asylum-seekers in Malaysia from anywhere in the world. Each was responsible for reviewing the other's decision during an appeal process, and no appeal outside the office was available. This arrangement, we believe, does not provide the independence and objectivity necessary for a fair appeal. As of July 2000, there was only one protection officer present and appeals were sent to the UNHCR office in Jakarta, Indonesia. Under this arrangement, applicants were not reinterviewed on appeal. UNHCR didnot provide Human Rights Watch with information about how many rejections are overturned on appeal, although office staff told us that some cases are.238
The lack of transparency and accountability in the refugee status determination process inevitably serves to discourage Rohingya from applying and fosters resentment and anger in the Rohingya community against UNHCR. We were told that the Kuala Lumpur Head of Office held a meeting with Rohingya in mid-1999 to discuss the high rejection rate, but many of the people we interviewed did not understand the refugee criteria or why they had been rejected. Further, those who had been given the original letters in 1992 did not understand why the status that they thought these had conferred had subsequently been revoked.Bashar R. left Arakan after Burmese soldiers took his family's chickens and rice, made his family collect prawns from the river for them, and forced him to work as a porter. He told us, "I applied for refugee status and had two interviews but was rejected on November 11, 1998, about two months after the interviews. My second interview was an appeal, which I lost. My father-in-law has refugee status but my wife does not. I think UNHCR picks randomly so we have to be random refugees."239 Ahmed K. told us that, although he had received a certificate in 1992 he was not going to apply for refugee status because he was certain he would be rejected.240 D. Hafez actually applied for refugee status: "I went for an interview and never heard back. Many people were rejected so I assume that I was rejected too."241
Venting their frustration regarding these problems, over 200 Rohingya mounted a protest outside the UNHCR compound on August 25, 1999, demanding that UNHCR send them to third countries and renew their expired certificates.242
Policies on Conditions in Arakan
A refugee status determination hinges on an evaluation of the conditions in the applicant's home country. UNHCR, however, appears to be taking inconsistent positions on conditions in the Rohingya's place of origin-Arakan state in Burma-and on their status and treatment in Malaysia. UNHCR has stated that it abandoned an initial attempt to conduct refugee status determinations for Rohingya in 1993 because of "the large numbers that approached the Office, and the situation prevailing in northern Rakhine State [Arakan], Myanmar, at the time."243 One might assume from this statement that the large numbers of Rohingya asylum-seekers made it difficult to conduct individual status determinations and so prima facie refugee status was awarded on a group basis because of prevailing conditions in Arakan State that were forcing people to flee their homes.244 But this was not what happened. When refugee status determinations were abandoned, no group-based refugee protection was provided, thus leaving the Rohingya in a complete protection vacuum in 1993.
Although individual screening for refugee status was re-instituted at the end of 1998, the contradictions were not resolved. Human Rights Watch saw copies of three letters that UNHCR officials had sent in 1999 to the Malaysian immigration department, the commander of an immigration detention camp, and a school principal on behalf of individual Rohingya. Each letter stated that the individuals concerned had "fled their home country dueto the problems they faced on account of their ethnic and religious background."245 This assessment of conditions in Arakan, which we believe to be accurate, indicates that the three individuals all have a valid need for protection in Malaysia. In fact, UNHCR denied refugee status to all three. Moreover, the letters stated that the three were registered with the office, despite the fact that UNHCR had refused to renew their certificates. In one letter UNHCR described the individual as an asylum-seeker instead of stating that he had already been rejected for refugee status.
As this shows, UNHCR's position on repatriation is not coherent. In contrast with what was said in the three letters cited above, UNHCR officials have reportedly told some Rohingya that conditions in Arakan are conducive to their return. Jahura, for example, told Human Rights Watch that she fled to Malaysia in 1989 after soldiers entered her home and tried physically to attack her and her family. She was only screened for refugee status in 1999, however: "Our first application for refugee status was rejected. When we asked why, we were told that the situation is all right in Arakan." She later made two appeals which were denied.246 Nevertheless, a UNHCR official in Kuala Lumpur assured Human Rights Watch that UNHCR does not encourage repatriation for Rohingya refugees in Malaysia.247
UNHCR in Kuala Lumpur has also noted the implications of the denial of citizenship to Rohingya in Burma and has informed Malaysian government officials in writing, that the Rohingya:
do not possess any valid travel documents which would prove that they are Myanmarese citizen[s]. So far Malaysia and Myanmar have not been able to agree on a procedure for the verification of the citizenship of these Muslims from Myanmar and for their return to their country of origin. Until their citizenship and their right to return has been clarified they will not be able to return to Myanmar.248
In contrast, UNHCR in Bangladesh is actively encouraging the 22,000 or so Rohingya in camps there to return to Arakan on the ground that conditions are safe for return.249 On and off since 1994, UNHCR has actively facilitated a large-scale repatriation of some 230,000 Rohingya from Bangladesh. The inconsistencies in the stances of the two UNHCR offices on repatriation highlight the contradictory nature of the organization's policy.
UNHCR's inconsistent policies in relation to prevailing conditions in Arakan appear to be affecting their refugee status determinations. UNHCR has granted refugee status to very few Rohingya who have applied. In 1999, the UNHCR office in Malaysia received 1,597 applications for refugee status from Rohingya asylum-seekers. Of these, forty-three were granted refugee status, 1,473 were denied, and the remainder were pending as of May 2000.250 Human Rights Watch interviewed some of these asylum-seekers who recounted credible acts of persecution in Burma and reasons to fear return, but were nevertheless rejected for refugee status in 1999.
Some had been subjected to forced labor and violence by the military: · In April 1989, soldiers collected Sadiq M. and other men and forced them to carry ammunition. "There was an old man who was over seventy years old. He was with me and others when we were forced to be porters and the soldiers made those that could not work go along anyway. I saw three soldiers put gas on the old man and light him on fire. I tried to push the soldiers away." After a scuffle in which one of the soldiers was hurt, Sadiq M. managed to escape and went into hiding. A week later, soldiers went to his village searching for him and arrested his elder brother. The soldiers beat the brother and told him to "get your brother dead or alive or else you will be killed." But Sadiq M. fled from the area and made his way over land through Thailand to Malaysia. He applied to UNHCR for refugee status in 1998 but was rejected: "They said that I was an economic refugee. I had one interview on October 20, 1998, and was rejected on March 17, 1999."251
· According to K. Maung, "My father in Burma had four [units] of land which the Burmese military took away. The military was taking porters for forced labor and one day my father was taken. He was quite old and had a disease. The soldiers beat him and then he was taken to the hospital where he later died. The doctor in the hospital asked my father what happened, and my father said that the military beat him. The doctor told a high-ranking military officer what my father had said. As we were taking his body from the hospital, the military tried to block us from removing the body. The military went after us and followed us." After this, K. Maung was afraid to stay in Burma.252M. Khan and Nazumeah B. recounted human rights violations connected with restrictions on their freedom of movement-limitations imposed because they are not recognized as Burmese citizens. · In 1991, without permission from the Burmese government, M. Khan's younger brother went to Malaysia by way of Thailand. When Burmese military intelligence found out, they came to M. Khan and told him either to make his brother come back or to pay 30,000 kyats. Otherwise they would arrest him. He could not pay the money, and the officials beat him severely. He fled to Malaysia. His family later told him that, in retaliation for his flight, the military detained another of his brothers. To obtain the brother's release the family was forced to pay 150,000 kyats.253
· Nazumeah B. told us: "I left in 1991 because I could not work in Burma because I had no documents. The military dictatorship would not give me documents which meant that I could not leave my village. My movements were restricted. . . . Soldiers forced me to build a road, a military structure, and to porter against the insurgent movement. I did not receive payment. That year (1990) I was involved with the democracy movement and organized meetings against the government to encourage people not to give their votes to the government party. This made the military angry and they followed me. When we were meeting in the village, the military surrounded the meeting. I ran away but some people were arrested." 254Others were persecuted for their political opinions: · A. Shukor left Arakan in August 1989. He told us: "My cousin was a leading person in the opposition. I went to his place in Kyauktaw. I supported him and went to a meeting. Then I went to Rangoon and kept organizing people. The military arrested me, and I paid money to be released." He then fled, entering Malaysia in 1990. In 1995 A. Shukor was able to contact his family by telephone. The military learned of the call, and "[a]s a result, my elder brother was arrested. Then he was taken to the hospital where he died. . . . I cannot go back to Burma because there is risk to my life."255
· M. Kadir was accused in 1979 of having a connection with an insurgent group and of committing acts of sabotage against the government. He told us that the charges were false, but that he was arrested and detained for four months in Kyauktaw, Arakan, during which he was interrogated and tortured. He was released without being tried but had to report twice a day to the local police station. In 1982 he was arrested again on the same charges. Police officers took him to a temporary police station and told him that he would be interrogated again. That night, with a few other prisoners, he escaped. The police chased them and shot and killed two persons. M. Kadir made his way to Akyab [Sittwe] where a friend hid him in a boat and took him to the coast. There he hired a boat to take him out to a Thai fishing boat, which then carried him to Thailand. He stayed illegally in Thailand for about five years before entering Malaysia in January 1988.0
· Kasim J. was only fourteen years old when he joined the student party in his village. The party, led by older students, had only ten members but conducted public lectures and was politically active for the opposition. After the army crushed the mass demonstrations of 1988, he and the other students were called into a government office, made to sign a paper saying that they were student party members, and were forbidden from joining another group. When three students were subsequently killed, Kasim J. fled to the mountains along the Bangladeshi border. When he later returned to his home town, he continued his activities with the student party and participated in demonstrations in 1994. The military arrested fifteen of his fellow students and accused them of being in the opposition party. Only ten of those arrested ever returned. In 1995 Kasim J. joined the opposition party and then fled the country.1Based on our interviews with UNHCR and on the above cases, Human Rights Watch is concerned that UNHCR is failing to give adequate consideration to Rohingya's accounts of abuse suffered in Burma and their fears of persecution and, consequently, is rejecting Rohingya who do have valid refugee claims. One key consideration is the implications of the Rohingya's inability to obtain citizenship. This makes them especially vulnerable to related human rights abuses by the military. And as "non-citizens," their ability to travel is heavily restricted by the Burmese authorities, exposing them to exploitation by corrupt officials and threatens their economic survival.2 Less directly, lack of citizenship makes them more vulnerable to forced labor and its associated human rights abuses. All of these, as explained in the next section, are possible grounds for refugee status. Yet UNHCR protection officers screening Rohingya in Kuala Lumpur seem not to be making this connection. One of the two officers told Human Rights Watch: "Many Rohingya don't qualify as refugees because their problem is that they are not accepted as nationals by Myanmar. Statelessness problems are not the same as refugee claims. With the former, the government doesn't want the person back; with the latter, the government wants the person back to persecute him."3 This reasoning is flawed. As discussed in the next section, the Rohingya's inability to obtain citizenship in Burma is an integral part of the abuses they suffer and should be a key consideration in asylum determinations.
200 Statute of the Office of the United Nations High Commissioner for Refugees, United Nations General Assembly, December 14, 1950. Our analysis of UNHCR's role is based on meetings and subsequent contact by telephone with UNHCR in Kuala Lumpur and on communications with UNHCR headquarters by telephone, electronic mail, and letter.
201 Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
202 UNHCR's operations were established during the CPA through an exchange of letters between the High Commissioner and Malaysia's Minister of Foreign Affairs.
203 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999; Human Rights Watch telephone interview with UNHCR Protection Officer in Kuala Lumpur, Malaysia, March 14, 2000.
204 Human Rights Watch interview with UNHCR Bureau for Asia and the Pacific, Geneva, Switzerland, July 5, 2000.
205 Statute of the Office of the United Nations High Commissioner for Refugees, United Nations General Assembly, December 14, 1950.
206 See, e.g., Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
207 Refugees and Others of Concern to UNHCR - 1998 Statistical Overview.
208 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
209 An initial attempt to conduct refugee status determinations was abandoned, according to UNHCR, in light of "the large numbers that approached the Office, and the situation prevailing in northern Rakhine State, Myanmar, at the time." Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
210 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, December 3, 1999. According to the Bureau for Asia and the Pacific, "this change in policy was also inspired by the fact that over 200,000 Rohingya refugees had repatriated voluntarily to Myanmar from Bangladesh, under UNHCR auspices, since 1993." Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
211 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
212 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, December 3, 1999; Human Rights Watch telephone interview with UNHCR Protection Officer in Kuala Lumpur, Malaysia, March 14, 2000.
213 Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
214 Ibid.Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 13, 1999.
215 UNHCR, UNHCR Country Profiles - Malaysia, September 1999, http://www.unhcr.ch/world/asia/malaysia.htm; Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999.
216 Human Rights Watch telephone interview with UNHCR Protection Officer in Kuala Lumpur, Malaysia, March 14, 2000.
217 Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
218 UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, U.N. Doc HCR/IP/4/Eng/REV.1 (Geneva: UNHCR, reedited 1992); UNHCR, Interviewing Applicants for Refugee Status (RLD 4), (Geneva: UNHCR, 1995); UNHCR, Determination of Refugee Status (RLD2), (Geneva: UNHCR, 1989). The Handbook on Procedures and Criteria for Determining Refugee Status was written to guide governments in conducting their own asylum procedures. See Executive Committee Conclusion No. 8 (1977), para. 53.6 (listing basic requirements for procedures for the determination of refugee status from which the Handbook on Procedures and Criteria for Determining Refugee Status was prepared).
219 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 17, 1999. When Human Rights Watch visited the UNHCR office, a staff member drove us back to the nearest taxi stand, explaining that it would be nearly impossible to catch a taxi outside the office.
220 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
221 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
222 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999. (19)
223 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999.
224 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999. Another man told Human Rights Watch: "In 1999 I applied for refugee status and was rejected. I had no money to go to UNHCR to appeal. Now I have no job. . . . I want documents from UNHCR and money to appeal. When I applied, I paid RM50 for someone to write my application. I had to bring it by taxi and go more than once." Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
225 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 17, 1999.
226 Human Rights Watch interview with UNHCR Bureau for Asia and the Pacific, Geneva, Switzerland, July 5, 2000.
227 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, December 3, 1999. In a 1996 interview in The New Straits Times with then UNHCR representative Erika Feller, it was reported that the barbed wire gates were erected and guards stationed after "[f]rustrated persons who claimed to be refugees had, a few times, destroyed equipment." Carolyn Hong, "Mission Accomplished," The New Straits Times (Malaysia), p. 4.
228 See "200 Myanmar Illegals Seek Asylum at UNHCR," The Star (Malaysia), August 26, 1998.
229 UNHCR, Determination of Refugee Status (RLD2).
230 Art. 192 (ii).
231 "The Bar Council Legal Aid Scheme," at the Bar Council Malaysia website, visited March 8, 2000, http://www.jaring.my/bar-mal/fr_aid.htm.
232 For more information about UNHCR's position on legal assistance and its activities in other countries, see Michael Alexander, "Refugee Status Determination Conducted by UNHCR," International Journal of Refugee Law, Vol. 11, No. 2, 1999, pp. 267-272.
233 UNHCR rejection letters dated January 14, 1999, and January 13, 1999.
234 The training module Determination of Refugee Status (RLD2), (Geneva: UNHCR, 1989), states in Chapter 2 that: "If the applicant is not recognised, the reasons on which the negative decision is based should be made available to him." See Alexander, "Refugee Status Determination Conducted by UNHCR," pp. 277-279.
235 Goodwin-Gill, The Refugee in International Law, p. 331.
236 Human Rights Watch interview with UNHCR Bureau for Asia and the Pacific, Geneva, Switzerland, July 5, 2000.
237 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, December 3, 1999.
238 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999; Human Rights Watch telephone interview with UNHCR Protection Officer in Kuala Lumpur, Malaysia, March 14, 2000.
239 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 30, and December 2, 1999.
240 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
241 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
242 See "200 Myanmar Illegals Seek Asylum at UNHCR," The Star (Malaysia), August 26, 1998.
243 Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000.
244 See, e.g., UNHCR, Refugee Children: Guidelines on Protection and Care, (Geneva: UNHCR, 1994): "If a refugee movement is too large to make individual status determinations possible, the State might grant refugee status to all members of the group."
245 We read copies of these letters in interviews with the letters' bearers. Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 30, and December 2, 1999 (20); Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999 (40); Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
246 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 15, 1999.
247 Human Rights Watch telephone interview with UNHCR Protection Officer in Kuala Lumpur, Malaysia, March 14, 2000.
248 Letter dated December 2, 1999, copied verbatim at Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999 (emphasis added); Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999.
249 Human Rights Watch/Asia, "Burmese Refugees in Bangladesh"; see FIDH, Burma: Repression, Discrimination and Ethnic Cleansing in Arakan, pp. 46-48.
250 Letter from UNHCR Bureau for Asia and the Pacific to Human Rights Watch, dated May 16, 2000. In the first quarter of 2000, UNHCR's Malaysia office recognized twenty-seven persons total as refugees. Human Rights Watch was not able to obtain information as to how many, if any, of these were Rohingya. UNHCR, "Table 8. Applications and Refugee Status Determination by Country of Asylum," Refugees and Others of Concern to UNHCR: Statistical Overview - First Quarter 2000.
251 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 20, 1999.
252 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
253 Human Rights Watch interview, Kuala Lumpur, Malaysia, December 2, 1999. The exchange rate may range from about 6 kyats to the U.S. dollar, officially, to around 120 kyats to the U.S. dollar on the black market.
254 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999. (6)
255 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
0 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 13, 1999. As Thailand does not give Rohingya refugee status or other protection but detains and deports them to Burma, A. Kadir's stay of five years in Thailand should not affect his claim to refugee status in Malaysia.
1 Human Rights Watch interview, Kuala Lumpur, Malaysia, November 30, 1999.
2 See Human Rights Watch/Asia, "Burmese Refugees in Bangladesh: Still No Durable Solution," pp. 11-12.
3 Human Rights Watch interview with UNHCR Protection Officer, UNHCR liaison office, Kuala Lumpur, Malaysia, November 12, 1999.