ILLEGAL IMMIGRANTS IN MALAYSIA: INVESTIGATION AND
PROSECUTION CHALLENGES
Muhd Azlan Bin Yusoff *I. ABSTRACT
The issue of trafficking in persons and smuggling of illegal immigrants in Malaysia is a cross-border crimethat creates an alarming situation. The terms trafficking and smuggling of migrants are often used incorrectlyby the general public. The discrepancies between the terms and proper understanding of these issues need
to be identified, which is important to providing appropriate legal and other protection to victims of trafficking
or trafficking in persons in Malaysia. In addition, forced labour is often overlooked by the authorities becauseof the workers’ status as illegal immigrants. Restricting the situation when the legislation of the country,
particularly the Anti-Trafficking in Persons and Migrant Anti-Smuggling ACT 2007 (hereinafter referred toas “ATIPSOM”) [Act 670], also did not clearly state the interpretation of the act. Based on cases decided by
the Malaysian courts, it was found that the court interpreted a situation as ‘trafficking of persons’ based on
the purpose and form of exploitation outlined in the act.
This paper discusses the approach adopted by international law and Malaysian law in enforcement
aspects, as well as widens the interpretation of the meaning of trafficking in persons and smuggling of
migrants in line with the era of globalization. Less knowledge and awareness of the exploitation of the victim
complicates the process of prosecution of trafficking offenders. Hence, this study does not only examine theissues arising from the obscurity of trafficking in persons in the Malaysian legislation but instead tries toattract the attention of the authorities and the community to be more sensitive to this issue. Efforts using
effective enforcement methods can help the authorities enforce ATIPSOM, 2007 more effectively.

II. INTRODUCTION
The influx of migrants in Malaysia has existed since the early 1970s following the outbreak of theVietnam War. In addition, the country also faced the problem of a shortage of workers in various sectors at
the time, which had affected the stable economic and political situation in Malaysia but also opened up
employment opportunities. This atmosphere has attracted foreign nationals from all over the world to enter
the country to seize these job opportunities. Foreigners from Indonesia, Philippines, Bangladesh, Myanmar,
India, Pakistan, Sri Lanka and the People’s Republic of China (PRC), the majority of which are economic
refugees have entered this country mostly for the purpose of obtaining employment opportunities in the
country.
In addition, Malaysia is also a transit country by foreign smuggling syndicates comprising citizens ofMyanmar, PRC, Sri Lanka, India, Pakistan, Iran, Iraq, Afghanistan and others to destination countries suchas the United States of America, Australia, New Zealand and Western Europe.
The issue of trafficking in persons has earned global attention as a serious cross-border crime similar tothe smuggling of weapons and drugs. It is estimated that the profit from the crime of trafficking in persons
amounts to USD 38 billion a year. There are many factors that contribute to the crime of trafficking inpersons. Among them are poverty, illiteracy, economic crisis, domestic and regional conflict, political instability
and displacement. The migration aspect is also closely related to the crime of trafficking in persons. In thisregard, this aspect needs to be addressed as the number of migrant’s increases and estimates of the numberof migrants globally amount to 240 million people. Migration leads to labour-trafficking issues as exploited byindividuals and irresponsible syndicates. Based on this background, the Malaysian government is aware of
the importance of establishing ATIPSOM and the National Action Plan as an instrument for addressing this＊Superintendent of Police Royal Malaysia Police, Headquarters, Bukit Aman, Kuala Lumpur, Malaysia.

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crime particularly affecting the areas of prevention, rehabilitation and protection of trafficking victims,
including prosecution.
Malaysia is one of the transit countries for trafficking in persons, receiving immigrants from neighbouring
countries such as Indonesia, Thailand, Philippines, Cambodia, Vietnam, Myanmar, Pakistan, and China directly
or indirectly through syndicated agencies. The acceptance of Malaysia in the United Nations (UN) andacceptance of international conventions, such as the UDHR, the UNTOC and the United Nations Protocol toPrevent, Suppress and Punish Trafficking in Persons, especially Women and Children (hereinafter referred
to as the “TIP Protocols”) and Protocols Against the Smuggling of Migrants by Land, Sea and Air, it places
responsibility on Malaysia as a member to comply with the agreements entered into by providing protection
against trafficking victims and smuggling. Malaysia ranks on the second-tier list (tier 2 watch list) in the 2018
United States Department of State’s Trafficking in Persons Report.
The second level places Malaysia as a state that does not fully comply with the minimum standards of
the Trafficking Victims Protection Act (TVPA), but it is actively pursuing a move towards compliance withthe standards. Awareness of the position of the Malaysian government in curbing the smuggling problem ofpeople has made Malaysia more proactive in combating humanitarian crimes. The Malaysian Government
through the National Action Plan has established a collective strategy involving the participation of
government, civil society, the private sector, non-governmental organizations (NGOs) and the general public
in addressing this problem.
The difficulty in distinguishing between migrants and trafficking victims, who often overlap and relate toeach other, makes it difficult for the Malaysian government to provide protection to victims. If smuggling of
migrants was easier to do when they tried to smuggle them into Malaysia across the border, it was harder
to track because they were smuggled through fraudulent documents from fraudulent syndicates. Hence, theessential element to distinguish between migrants and trafficking victims is whether the migrants are being
exploited. When a person is exploited for certain purposes such as prostitution and forced labour without
paying any wages, they belong to the category of trafficked persons and should be protected, even though at
the beginning of their involvement they were “unauthorized foreigners”.
This difference also affects the type of protection that can be given to the victim. Migrant offenders
illegally entering Malaysia will be placed in immigration detention depots such as at the International
Airport detention depot, which serves as a place of detention for immigrant offenders before they aredeported to their respective countries. Meanwhile, victims of trafficking in persons are stationed at shelters
for trafficking victims such as the Klang Valley, Melaka, Johor and Sabah. The authorities responsible for
migrants and trafficking victims are also separate, where migrants are placed under the control of the
Immigration Department of Malaysia, while trafficking victims are placed under the responsibility of the
Ministry of Home Affairs and the Anti-Trafficking in Persons and Migrant Anti-Smugglers (MAPOM) Council.
Separate authority between the Immigration Department and the Home Ministry also creates difficulties in
identifying and distinguishing between their status as either migrant or trafficking victim.

III. INTERPRETATION OF ‘TRAFFICKING IN PERSONS’ AND ‘SMUGGLING OF
MIGRANTS’ IN MALAYSIAN LEGISLATION
Malaysia has adopted the provisions of the ATIPSOM. Although it does not fully adopt the TIP Protocols,
supplementing the UNTOC, it is still a major reference to the ATIPSOM policy. The Act was amended in2010 by including provisions on migrant smuggling and in line with that has raised Malaysia’s status to thelevel 2 observation list by the United States Department of State.
Section 2 of ATIPSOM provides the definition of ‘trafficking in persons’ as any act involving the acquisition
or retention of a workforce or service of a person by coercion, and includes acts of recruiting, transporting,transferring, protecting, preparing or receiving a person for the purposes of this Act. The definition provided
by the Act is somewhat vague in respect of ‘for the purpose of the act’, as opposed to the Protocol’s intentionof ‘for the purpose of exploitation’. If for the purpose of the act, it includes the meaning of the criminal act ofsmuggling of migrants, it provides a range between trafficking victims and victims of smuggling.

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IV. STATISTICS:
a) Statistics on arrest of illegal migrants in Malaysia year 2016 - 2018 by Malaysia Immigration Department.
YEAR
TOTAL

2016
49,4962017
48,4642018
44,837b) Statistics on arrest of illegal immigrants by country in Malaysia (year 2016 – 2018)
COUNTRY
Indonesia
Bangladesh
Philippines
MyanmarThailand
Vietnam
India
Other

TOTAL
(YEAR 2016 – 2018)
48,792
28,592
15,60613,133
9,494
6,658
5,890
14,632V. MODUS OPERANDI (LAND BORDER)
There are various modus operandi used by human smuggling syndicates. This section will emphasize thelatest modus operandi in Malaysia. Since the discovery of the graves and campsite of a human smuggling
syndicate in Wang Kelian, Perlis in 2015, most syndicates have reduced their activities. The case in Wang
Kelian is an example that shows how migrants used land borders to enter Malaysia. This is due to the strict
enforcement action taken by Bangladesh and Thailand authorities especially on the sea and land routes.
Admission at borders is carried out in smaller sizes via rat routes at the Malaysia–Thailand border.
However, since late 2017, the syndicate has changed the smuggling modus operandi by focusing on
smuggling using land routes by public and private vehicles from source countries to transit countries anddestination countries. Syndicates have a broad network of transporters across the borders of the affected
countries. Syndicates are more focused on land routes using public transport such as buses and taxis besides
using private vehicles such as trucks, pick-up trucks and cars. The refugees to be brought in are collected
in several cities in Myanmar and then ride to Ranong, Thailand. In addition to Myanmar cities, they are alsogrouped on several islands near the Myanmar–Thailand border as a transit centre. Among those used isSong Island, Myanmar (Koh Song). Upon arriving in Ranong, Thailand, the syndicate will arrange travel from
Ranong, Thailand to several other cities in Thailand, the city of Chumphon and Pattalung and then to Hatyai
city, Thailand. Hatyai City is being used as a major collection hub for refugees for smuggling routes using
land routes in Thailand. In Hatyai, Thailand, the syndicate will distribute illegal immigrants and refugees inaccordance with the agents and syndicates in Malaysia whether in Satun / Perlis, Songkla / Kedah or
Narathiwat / Kelantan. The refugees and runaways will be placed in guesthouses, budget hotels and shelterhouses in Hatyai to wait for the right time to smuggle them into Malaysia.
In addition to the delivery to the three provinces, there are also syndicates managing trafficking using
Langkawi Island, Kedah and Kuala Perlis, Perlis as a small shelter centre. They use small canoes andpassenger ferries to Kuala Perlis, Perlis or Kuala Kedah, Kedah. However, this modus operandi is less used
and will be implemented when syndicates have space and opportunity. In addition to using the Malaysia–
Thailand border, syndicates also use alternative routes in the Straits of Melaka to enter the country throughIndonesia to the West Coast of Peninsular especially in Melaka, Negeri Sembilan, Selangor and Perak.

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VI. MODUS OPERANDI (BY SEA)
Smuggling through sea routes to date is only focused on Australia through Indonesia using boats andseaports waiting in international waters. Foreign nationals, especially those from Pakistan and Afghanistan,will be taken to temporary shelters either on the coast or near the coast. To date, the coastal states of
Selangor and Negeri Sembilan and Johor have become their focus as there are many Indonesians or locals
who are in conflict with syndicates. From the coast of Peninsular Malaysia, they are taken to Batam, Dumai
and Tanjung Balai, Indonesia for further trafficking to Australia. There is also smuggling from the coast ofPeninsular Malaysia which uses small boats to be taken to aircraft carriers that have been waiting in deep
waters or international waters for smuggling into Indonesia or are even being smuggled into Australia.
However, since the Australia government’s new policy through “Operation Sovereign Border” which
prevented the entry of unlicensed migrants to the country in September 2013, human smuggling syndicateshave tried to target New Zealand as a new destination country through maritime routes using Malaysia andIndonesia as transit countries.
In May 2015, more than 1,000 migrants from Bangladesh and Myanmar landed in Malaysia after being
dumped by human traffickers in shallow waters off the resort island of Langkawi. These cases show how thesyndicate used a boat as transportation to bring in immigrants to the destination.

VII. MODUS OPERANDI (BY AIR)
Smuggling through the air becomes the choice of syndicates in carrying out smuggling activities of Sri
Lankan citizens and the People’s Republic of China (PRC) to third countries. The syndicate finds that theroute is safest and the most secure. Syndicate Operating Modes are increasingly sophisticated and involvean international network of syndicates, as it involves several transit countries. Citizens of Sri Lanka whoenter Malaysia either directly from their home country or through their neighbouring countries are using
their own genuine passports after obtaining a social visit visa for Malaysia. Upon entering Malaysia, they aretaken to a temporary shelter in hotels or in apartments around Selangor and Kuala Lumpur. Before they
were smuggled out of Malaysia, they were supplied genuine Malaysia International Passports (face cutting)to facilitate them when entering and going to destinations. This syndicate has made Kuala Lumpur
International Airport (KLIA) and Kuala Lumpur International Airport 2 (KLIA2 @ Low Cost Carrier
Terminal) in their smuggling efforts to a third country, in particular, Western Europe.
These syndicates are also engaged with the authorities who to provide easy access (illegal) to Sri Lankan
citizens from Malaysia to third countries. The use of the original passport itself, which is subsequently
replaced with the fraudulent passports on board the flight or at the end or at the end of the conspiracy with
the individuals in the flight agency and the enforcement at the airport, makes it difficult to track them.
The syndicates also smuggle migrants from Bangladesh, Vietnam, Pakistan, India, Uzbekistan, China,
Kazakhstan and others in KLIA and KLIA 2 by using Social Visit Passes, Employment Passes and Students
Passes. Syndicates are made up of citizens of Malaysia and Bangladesh and get cooperation from civil
servants in the KLIA Immigration Department to obtain easy access facilities at the JIM inspection checkpointat the KLIA Arrival Hall. In December 2017, there was a case in which two Malaysian immigration officers
were detained for allegedly being involved in the smuggling of migrants.

VIII. MODUS OPERANDI (ILLEGAL MIGRANTS TO MALAYSIA AND THIRDCOUNTRIES)Information and intelligence by Malaysian authorities conducted over the past few years have revealed
some of the syndicates that have been mastered by foreigners and locals have used Malaysia as a transit
country or “spring board” to bring in and get false travel documents for smuggling out to third countries.
The studies and information have also revealed that the smuggling activities have been carried out throughsea and by air. These syndicates also involve neighbouring countries in the process of smuggling them into
third countries.
Illegal of migrants enter Malaysia whether directly from their home country or through the borders ofIndonesia, Singapore or Thailand and use their own genuine passports after obtaining a Malaysia social visa.
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After successfully entering the country, they are taken or placed in hotels, apartments or houses in the
majority of residential areas while agents operating in this country are preparing for service syndicates that
arrange their smuggling in the future using sea or air routes. The syndicate and the agents take a depositof between USD 3,000.00 and USD 7,000.00 for making preparations to manage smuggling as well as getting
the forged documents or boats for further smuggling. The remaining cost of the package will only be paid
when the migrants safely arrive at the destination.
Smuggling through sea routes is concentrated on Australia either through Indonesia or directly toAustralia using boats and vessels that can accommodate between 40 and 600 passengers. The syndicates are
involved when it is time to be smuggled out; they are taken to temporary shelters either on the coast or near
the coast.
From the coast of the peninsula of Malaysia, they are taken to Batam, Acheh and Medan, Indonesia forfurther trafficking to Australia. There is also smuggling from the coast of Peninsular Malaysia which uses
small boats to be taken to aircraft carriers that have been waiting in deep waters or international waters for
smuggling into Indonesia or even being smuggled into Australia. Direct smuggling to Australia using theStrait of Melaka route, touring north of Sumatera and directly to Australia. The balance of the smuggling
package will only be paid after the migrants have completed the 7-month stay at Christmas Island and get
refugee rights from the Australian government.
On 1 May 2018, the Royal Malaysia Police busted a syndicate attempting to smuggle 131 Sri Lankans
from Johor, Malaysia to Australia and New Zealand using a modified tanker ship called ‘ETRA’. 98 men, 24
women, 9 children and 16 suspects were detained.

IX. FRAUDULENT TRAVEL DOCUMENT SYNDICATE
Syndication of counterfeit identification and travel documents begins when syndicated agents, whether
locals or foreigners, who will try to identify potential customers for the identification and travel documentsof Malaysia. At the same time, the counterfeit agent will cooperate with civil servants, namely the National
Registration Department Officer (JPN) or the Immigration Department of Malaysia (JIM), who are willing toconspire with the counterfeit agent.
When counterfeiting agents acquire customers who are interested in obtaining Mykad (Malaysia IdentityCard) and International Malaysia Passports (PMAs), agreement in terms of payment price and timeframe
will be fixed. Payments are usually made in cash, for example, being illegally brought in via electronic moneytransfer through a foreign currency company. Payments charged for earning Mykad and PMA are dependent
on the degree of authenticity. To get a birth certificate, MyKad and PMA packages, the rate charged by the
syndicate can now reach up to RM500 thousand per person. When approval of the price is obtained, thecustomer will be brought to meet the JPN Officers either at the office or at a specific location such as thehotel to record fingerprints. Once MyKad is created, the agent will bring the customer to test the authenticityof MyKad made by opening a local bank account. For the record, from January 2017 to May 2018, 117 casesof Mykad forgery involving foreigners were recorded. It consists of Filipino, Indonesian, Thai, Chinese,
Russian and Singaporean nationals. The cases of two Iranians who used fake passports in the case of theMH370 missing flight on Mac 2014 is one of the popularly known cases that happened in Malaysia.

X. SUGGESTIONS FOR ENFORCEMENT AND ENHANCEMENT OF ATIPSOM IN
MALAYSIA
Based on the research conducted on the resolution of the issue of enforcement and the interpretation
should be in line with the improvement of external aspects as follows:a. Strengthen legislative mechanisms. The effectiveness of implementing the enforced laws can beachieved by reviewing and improving the law, especially in relation to investigations, prosecution andpenalties. Existing Operational Procedures may be reviewed if it is deemed necessary to improve thedegree of investigation, protection and prosecution in accordance with current requirements. The
proposal, by listing the trafficking criminal offences of persons in the Penal Code [Act 574] or the AntiMoney Laundering and Anti-Terrorism Financing Act 2001 [Act 613], will prevent the occurrence of61

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this crime.
b. Enhanced law enforcement actions under anti-trafficking laws, particularly labour trafficking cases.
Execute severe penalties against those involved in fraudulent hiring or forced labour exploitation.
Increase efforts to prosecute and punish public servants who benefit or engage in trafficking inpersons, or those who exploit trafficking victims. Develop and implement procedures for identifying
labour trafficking victims among vulnerable groups such as foreign workers and referring them toexisting protection services. Increase protection for victims in government facilities by providing legal
assistance to victims, and providing effective counselling and care to victims of trafficking. Develop andimplement mechanisms to enable adult trafficking victims to walk, work and live outside government
shelters. Provide legal alternatives for expulsion of trafficking victims to countries where they will facepenalties or hardships.
c. Amendments to penalties and penalties within ATIPSOM need to be done to prove the seriousness of
this trafficking crime. It is proposed that penalties be increased to RM 5 million and include penalties
and death sentences against offenders relating to trafficking. In addition, the government should also
launch or set up a National Anti-Trafficking in Persons plan as a guide to implementing the crime
prevention efforts. The plan should outline the government’s strategy in curbing such crime at both
domestic and international levels. Public awareness programmes also need to be intensified among
them to attract NGOs and private agencies in efforts to combat this crime.
d. Study the laws of other countries or international law regarding the approach adopted by that country.
Close cooperation with ASEAN countries and foreign countries such as Australia, the United States,
the Netherlands, the United Kingdom and international organizations are essential to curbing suchcrimes and to discuss further in respect of the blurring of laws protecting victims of trafficking withillegal migrants moving without legitimate documents.
e. The most practical advice needs to be implemented immediately by establishing a specialized agency
with autonomy and full authority in enforcing, investigating, monitoring, executing and managing andcontrolling all matters relating to human trafficking crime. This agency needs to be placed under thePrime Minister’s Department and may be named the Human Rights Enforcement Commission. Thisis a good move to avoid overlapping jurisdictions of existing enforcement agencies as well as to avoid
rejecting refusal in the investigation. With the establishment of a specialized agency, it will makematters pertaining to ATIPSOM’s enforcement more systematic and effective.

REFERENCES
Anti-Trafficking in Persons and Migrant Anti- Smugglers (MAPOM). 2010. Anti-Trafficking in National
Action Plan. Kuala Lumpur: National Printing Malaysia Berhad.
Immigration Department of Malaysia. http:www.imi.gov.my
United Nations Office on Drugs and Crime. http://www.unodc.org/unodc/en/human trafficking/what-ishuman-trafficking.html.
US Department of State Trafficking in Persons Report. 2018. http://www.humantrafficking.org/countries/
malaysia.

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