"NOT FOR EXPORT"

Why the International Community Should Reject Australia's Refugee Policies

A Human Rights Watch Briefing Paper

September 2002

This Briefing Paper is issued in advance of a forthcoming Human Rights Watch Report, "By Invitation Only," examining in detail Australian refugee policy since August 200l.

Introduction

The government of Australia has taken increasingly aggressive measures in recent years to prevent unauthorized asylum seekers from reaching its shores. One year ago, on September 26, 2001, it enacted new legislation that extended the legal basis for its policies, which are among the most restrictive in the developed world. Since that time, the government has sought to make its own approach the norm in the international arena.

Australia's refugee policy has been shaped by efforts to deter refugees, most of them Afghans and Iraqis, from arriving in Australia without their first applying for resettlement via the offices of the UN High Commissioner for Refugees (UNHCR) or an Australian diplomatic post. The deterrent policy has four main components: 1) granting authorities extended powers of interception at sea, with authority to escort boatloads of asylum seekers back to the high seas even when they have already entered Australia's territorial waters; 2) "excising" certain Australian islands from the reach of its national immigration law, and processing asylum seekers there, in detention facilities, without even the limited procedural guarantees available on the Australian mainland; 3) subcontracting of detention to poorer neighboring states (the so-called "Pacific Solution"); and 4) rules denying permanent protection in Australia to virtually all refugees who were in third countries prior to arrival.

These policies have been controversial both within Australia and internationally. Excision of territories has been criticized as a legal fiction, and the diversion of boats to Indonesia or to the Pacific states of Nauru and Papua New Guinea has shifted responsibility for some of the world's most vulnerable people onto neighbors with less capacity to protect or care for them.

The focus of this Human Rights Watch briefing is the Australian government's attempt to justify this shifting of obligations onto others as a matter of principle rather than expediency. A key element is the government's "secondary movement" argument: that such refugees could and should have found safety and protection in their home regions - the Middle East and South Asia - or in transit countries such as Indonesia and Malaysia. It has asserted that there was no need for the refugees to make the dangerous journey to Australia and no obligation on Australia to offer such "secondary movers" protection within its territory.

This briefing first summarizes key features of the Australian government's present refugee regime, formed in September 2001, which are justified, either implicitly or explicitly, by the secondary movement argument. Part I also describes how Australia has sought to elevate its approach into a new international norm. UNHCR now proposes that there should be a new international agreement governing secondary movement, to supplement the 1951 Refugee Convention. The U.N. agency has presented this initiative as its answer to the danger that other countries may find it expedient to follow the Australian example of unilateral and punitive action, but there is the risk that such an instrument could also reinforce misconceptions that all secondary movements are unnecessary.

In Part II, the paper critiques the premises underlying the Australian government position that deterrence of all "secondary movement" is a legitimate policy objective. This section draws on firsthand interviews with dozens of refugees concerning their reasons for making such movements.

In research during April and May 2002, Human Rights Watch investigated the reasons why Afghan and Iraqi refugees were leaving their countries of asylum, namely Iran, Pakistan, Syria and Jordan. Based on interviews with refugees who had already made their way to Australia, or who had been intercepted at sea by the Australian authorities and returned to Indonesia, Human Rights Watch has determined that many of these refugees had legitimate, protection-related reasons for leaving their countries of so-called first asylum. These reasons, detailed below, include: serious risks of forcible return to countries where their lives and freedom were threatened (refoulement); continuing threats from their original persecutors operating across borders; inability to acquire legal status and the related risks of harassment, arrest and detention; as well as discriminatory restrictions on their access to the labor market, housing, health care and education, often making daily subsistence impossible.

Human Rights Watch also found that, among refugees aware of the resettlement system, many had good reason for failing to apply. Others did so, but faced lengthy delays that put their safety at risk. Nor could these refugees enjoy "effective protection" in countries of transit en route to Australia, such as Malaysia and Indonesia. During the period in question, neither UNHCR nor the Southeast Asian state authorities protected them from, for example, detention under inhumane conditions as illegal migrants, nor provided recognized refugees with a realistic prospect of local integration or resettlement if their return home remained impossible.

Human Rights Watch findings show that the reasons refugees arrive without authorization and after making "secondary movements" need to be evaluated on a case-by-case basis. Part III, which analyzes the measures presumptively imposed by Australia on all such asylum seekers, concludes that such measures are putting them at risk and violating established international standards governing the treatment of refugees.

Australia claims that its policies are intended only as part of a wider border protection strategy to deter people-smugglers. Whatever the merits of that objective, policies that ignore the needs of many refugees to spontaneously seek asylum outside their own regions and that violate refugees' rights in the name of deterrence should not be replicated. The international community should decisively reject Australia's efforts to export this approach.

Recommendations

1. Let boats land: The international community should call on Australia to ensure that all persons who enter its territorial waters have the opportunity to apply for asylum under Australian law. Australia should cease pushing-back intercepted asylum seekers, either to Indonesia or to other states in the region where effective protection cannot be guaranteed.

2. Release and resettle stranded refugees: UNHCR and all resettlement countries should collectively impress upon Australia its special responsibility toward refugees awaiting resettlement in the Pacific states and in Indonesia. The arbitrary detention of recognized refugees and also rejected asylum seekers in Nauru and Papua New Guinea should cease immediately.

3. Don't "excise" human rights: Australia should reverse its policies of territorial excision and detention on those territories. The Australian government should allow international or other impartial monitoring of the detention center to be opened on Christmas Island in January 2003. Preparations should be made for asylum seekers at that site to be provided with access to independent legal advice and an independent review/appeal mechanism, both in terms of their asylum decisions and in relation to challenging the necessity of their detention.

4. Don't use Temporary Protection as a penalty: The international community should publicly condemn Australia's punitive use of a temporary protection regime. When Australia's first Temporary Protection Visas expire in November, recognized refugees should not be forced to repeat the status determination process. Each refugee should be provided with an effective opportunity to rebut any presumption that another country previously afforded effective protection.

5. Let refugees seek effective protection: The international community should affirm that, given the current failings of refugee protection in many frontline states, there is a legitimate necessity for many refugees to move beyond their own regions. Both UNHCR and its Member States should educate the public on these human rights and refugee protection-related root causes underlying much secondary movement.

6. Reject the export of Australian refugee policy: Other asylum states should reject the Australian government's ongoing attempts to export both its methods of deterrence, which have led to human rights violations, and also its attempts to justify such deterrence by reference to overly restrictive interpretations of international refugee law.

PART I

Australia's Post-September 2001 Regime

In August 2001, Australia created an international furor when it refused to allow a Norwegian freighter, the MV Tampa, to land on its territory after the Captain had rescued 433 asylum seekers, most of them Afghans, from a sinking Indonesian vessel. This incident violated time-honored principles of rescue at sea and heralded the introduction of legislative changes that attempted to validate the Australian government's treatment of asylum seekers.

This package of legislation, which came into force on September 27, 2001,¹ was designed to deter and penalize all refugees who did not come directly to Australia from their countries of origin and who could and should, the Australian government believed, have sought protection in their regions of origin.

1. "Excision" of territories from Australia's migration zone

   The new legislation created a legal fiction by "excising" the Australian territories of Christmas Island, Ashmore and Cartier Islands, and Cocos (Keeling) Islands from the Australian migration zone.² This means that asylum seekers arriving by boat at any of those locations cannot apply for a refugee protection visa, unless the Minister for Immigration personally allows them to do so. Anyone who does not benefit from an exercise of the Minister's discretion, is permanently barred from exercising any rights under the Australian Migration Act, including the right to review by the Refugee Review Tribunal. As of September 2002, the government was planning to extend this policy by excising further portions of the Australian coastline.

   A new detention facility is now being constructed on the excised territory of Christmas Island, due to open in January 2003. Asylum seekers, rejected asylum seekers, and even recognized refugees are expected to be held in mandatory detention there, with no effective means of challenging their detention.

   Officials of the Australian Department of Immigration (DIMIA) will conduct refugee status determinations for detainees, but the asylum seekers will not be provided with access to legal counsel as are those asylum seekers in detention on the Australian mainland; they will not be allowed to appeal their asylum decisions to an independent body; they will not be allowed to apply directly for a visa (called a "protection visa") to live in Australia; and, if recognized as refugees, they will have to wait to be accepted for resettlement onto the mainland even though they are already within Australia's borders.

2. Extended powers of interception and detention

   The new law gives the Australian authorities increased powers to intercept, search, detain, and forcibly remove asylum seekers who lack authorization for entry. Australian Commonwealth Officers are still restricted by the basic principle that they not use "unreasonable force" when intercepting boats, but the new legislation places no limits on how long asylum seekers may be detained on board vessels and does not regulate the conditions of that detention. The law also gives Commonwealth Officers immunity from prosecution in relation to such interception and forcible removal actions.

3. Authority to expel to Pacific states or return to Indonesia

   Following interception and a period in detention, either within Australia's territorial waters or on an excised territory, an asylum seeker may now be summarily expelled from Australia. The September 2001 legislation empowered the Australian authorities to expel any such asylum seeker, against her will, to a "declared" country. So far, both the Republic of Nauru and Papua New Guinea have agreed to accept expelled asylum seekers. The legislation also empowered the Australian authorities to simply remove a vessel to a point beyond their territorial waters, on the assumption that it would return to Indonesia. In any of these other countries, the asylum seekers are to have their status determined by UNHCR or by Australian officials acting outside the framework of Australian law, and, if recognized, they must await resettlement. Even those recognized as refugees are unlikely to be resettled in Australia because the government has been reluctant to accept any but those who have immediate family members already living there.

   An Amendment adopted in March 2002,³ allows certain non-nationals to be brought from a "declared country" such as Nauru and Papua New Guinea into Australia, for a number of reasons ranging from medical evacuation to deportation. While within Australian territory, these persons can not apply for any kind of visa. Such "transitory persons" are within their own personal bubble of excision: they are barred, for example, from challenging their deportation before Australia's Refugee Review Tribunal or courts for at least six months.

4. A new Temporary Protection Visa regime

   Since 1999, asylum seekers recognized as refugees under the Refugee Convention⁴ who entered Australia without prior authorization have not been given permanent permission to stay. Instead they are given what are known as "Temporary Protection Visas." The 2001 legislation⁵ extends this policy to all asylum seekers who do not apply for entry to Australia from within their first country of asylum. They are only offered protection for three years, or, if they apply from a transit country, five years. They are denied their rights to lawfully leave and re-enter Australia, and to family reunion, even with spouses or unaccompanied minor children. While the aforementioned measures are implicitly justified by the deterrence of secondary movement, the new temporary protection regime makes this explicit by creating a hierarchy of statuses.

   To renew a Temporary Protection Visa, when they begin to expire this coming November, a refugee recognized under the Refugee Convention will have to re-prove that he still has a well-founded fear of persecution, rather than disprove an assertion that there has been a change of circumstances of a "profound and enduring nature" in his country of origin - the UNHCR benchmark for defining when refugee protection is no longer needed.⁶

   In renewing the Temporary Protection Visas, any refugee who has previously resided for more than seven days in a country where he "could have sought and obtained effective protection: (a) of the country; or (b) through the offices of UNHCR located in that country" will never receive any kind of permanent status, or family reunion, in Australia (this is called the "seven day rule"). It is unclear whether refugees will be able to challenge the presumption that they abandoned a previous place of safety. Equally worrying, this rule will also apply to refugees seeking resettlement to Australia who moved from their country of first asylum to a second country, even if they remained within their region of origin. For example, an Afghan Hazara refugee (similar to a case described below) whose life was in danger in Pakistan and who fled for safety to Iran would not be eligible for permanent status even if Australia agreed to resettle him, due to the fact that he had made a secondary movement to Iran.

Export of the Australian Approach

Over the past year, the Australian government has embarked on an aggressive mission to promote and muster international support for its policies. In a global political climate characterized by xenophobia and hostility toward migrants and asylum seekers, and a widespread desire to tighten borders and restrict entry, Australia's message has had some resonance. At a historic meeting of State Parties to the 1951 Refugee Convention in Geneva in December last year, Australia tried to persuade other governments to follow its lead. No other State Party was willing to speak out in opposition. Now the Australian Immigration Minister, Philip Ruddock, has declared that he will use the forthcoming meeting of the UNHCR Executive Committee (30 September - 4 October, 2002, in Geneva) to deliver the same message: that unauthorized secondary movements should be prohibited.7

In August 2002, Mr Ruddock returned from a tour to South Africa, Tanzania, Greece, Yugoslavia, the Czech Republic, Slovakia, Austria and the United Kingdom. He explained that he had gone because, "[t]here was a good deal of interest in border management strategies and I was able to meet a wide range of people to discuss managing those questions."⁸ Britain and Ireland, he said, were particularly interested in the Australian "model." In the summer of 2002, a memo was leaked from British Prime Minister Tony Blair's Cabinet Office that proposed establishing a naval blockade of gunships in the Mediterranean to push back boats carrying refugees.

Australia has already gained international notoriety because it places all asylum seekers who arrive without authorization into detention. This policy continues to offer a negative model to European governments - Austria, the United Kingdom and the Netherlands, for example, are presently debating conversion of previously open reception centers into closed detention facilities. But the policies introduced in September 2001 took Australia a step further in restricting the rights of asylum seekers and refugees and shirking its responsibility for those arriving in its territory. Australia is effectively paying poorer and less-equipped nations for "warehousing" its asylum seekers and refugees.

Such blanket policies are based on the false premise that refugees lack justification for leaving the immediate vicinity of their own country unless they do so via the international resettlement system. This concept has a longer history, which can be traced back to the early 1990s and is linked to the European "safe third country" return policy that allows a receiving state to return an asylum seeker to a purportedly safe country through which he or she transited and where he or she could have sought protection. But Australia is the first nation to put the concept of deterring secondary movement into practice in such a unilateral and uncompromising way.⁹

The next European Union Presidency will be held by Greece, starting in January 2003, followed by Italy, starting in July 2003 Ñ two countries with a vested interest in formalizing arrangements for more aggressive interception at sea. Shortly after Australia intercepted the MV Tampa, in November 2001, the Greek government intercepted and detained a boat loaded with hundreds of Kurdish asylum seekers beside the island of Zakynthos. They were kept on board for ten days, suffering from exhaustion, dehydration, and poor sanitation, until finally admitted to Greek territory. On June 8, 2002, four Kurds drowned swimming to shore when smugglers refused to risk approaching closer to the Italian coast - just a few of the many fatalities arising from the increasingly stringent interception policies of Mediterranean E.U. Member States.

Similarly, on May 24, 2002, the Indonesian navy refused entry to a vessel containing Afghans, Pakistanis, and Bangladeshis and pushed the boat out to international waters. In New Zealand, the Transnational Organized Crime Act has enlarged police powers of search and seizure at sea in order to address the fact that Australia has literally exported the risk of unauthorized boats arrivals to its shores (thirty-four people are believed to have drowned on their way from Indonesia to New Zealand in June 2002).

UNHCR is now attempting to pre-empt this "trend towards more unilateralism" by proposing "a special agreement" on the issue of secondary movement "to define the roles and responsibilities of countries of origin, transit, and potential destination, with regard to asylum seekers."¹⁰ This is in part an initiative taken at the urging of certain UNHCR Member States, including Australia, and in part reflects UNHCR's own longer-term concern with this issue.¹¹ It will be important to ensure that this new instrument does not develop in such a way that it follows the Australian model: that refugees should be obliged to rely upon protection in their regions of origin, to apply for resettlement and move solely via "orderly departure" mechanisms, or face potentially insurmountable hurdles.

The European Commission, even prior to the UN High Commissioner's recent proposal, was researching the feasibility of processing asylum claims outside the E.U. and setting up expanded resettlement channels for those accepted. In the same spirit, the U.K. White Paper on Nationality, Immigration and Asylum (February 7, 2002), referred to increased resettlement as the solution for those "for whom life in their region of origin was unsustainable." Such policies can be constructive and humanitarian, so long as resettlement does not become the only legitimate channel of entry; the Australian example demonstrates how over-emphasis on resettlement can easily be misused to stigmatize and deter spontaneous asylum seekers.

It is ironic that while Australia has gone further than most countries in restricting access to its territory, in reality the numbers of asylum seekers and refugees who were seeking entry to Australia before the legislative changes were not especially great. Between January and July 2001, for example, only 7,886 individuals sought asylum in Australia compared with, for example, 39,280 in the United Kingdom.

In 2000, Australia hosted one refugee for every 1,138 Australian residents while Germany hosted one for every 456 residents. In contrast, much poorer countries such as Pakistan and Iran hosted one refugee for every seventy-five and thirty-six residents respectively. Out of twenty-nine "developed" countries, Australia came fourteenth in terms of the number of refugees and internationally displaced persons it was protecting.¹² By the period January-March 2002, thanks to its current interception and deterrence policy, it had managed to fall to eighteenth place.

PART II

Reasons Refugees Leave their Countries of First Asylum

Contrary to the view of the Australian government that refugees should have stayed in their regions of origin, Human Rights Watch found compelling reasons why they were forced to move onwards.

The majority of Iraqi and Afghan refugees interviewed by Human Rights Watch had previously transited or lived for years in Iran, Pakistan, Syria and Jordan. Most of the Iraqi refugees who had spent time in Iran had fled during the 1990s to escape government repression and human rights abuse in the Shiite south and Kurdish north, following popular protests after the Gulf War. Afghan refugees in Iran and Pakistan had fled the cycles of violence and persecution that have ravaged Afghanistan for decades. Many of them were young ethnic Hazara men who fled forced conscription by the Taliban or persecution by other political factions.

Human Rights Watch documented the following reasons why these refugees had felt compelled to leave their countries of first asylum:

a) Risk of Forced Return (Refoulement)

During the period in question, there were reports from both Iran and Pakistan, and also from Syria, of refugees being forcibly returned to their countries of origin.¹³ In 1999, the U.S. Committee for Refugees estimated that some 100,000 Afghans were forcibly returned to Afghanistan by the Iranian authorities, and, in July, recorded the first reports of forced returns from Iran to Iraq. More recently, UNHCR estimated that 82,000 Afghan men and 8,300 families, registered but unrecognized as refugees, were forcibly returned from Iran between January and July 2001 alone. Similarly, many ethnic Hazaras fleeing to Pakistan in the late 1990s or 2000-01 transited the country quickly because they had direct experience of the risks of refoulement within their own extended families. The U.N. has estimated that the Pakistani authorities summarily returned some 7,300 undocumented Afghans, without giving them an opportunity to claim protection from refoulement, between October 2000 and May 2001. Although the Syrian government denies forcibly repatriating refugees, there have been reports that an undetermined number of Iraqis were refouled to northern Iraq in 1999 and that several hundred were summarily returned in December 2001.¹⁴

In interviews with refugees from two vessels intercepted by Australia and returned to Indonesia in October 2001, Human Rights Watch discovered several cases of individuals who had personally experienced refoulement from a first country of asylum. This naturally prompted them to seek better protection, outside their region of origin, when they fled for a second time.

A Hazara refugee named Fahim, now in Australia, described to Human Rights Watch how he fled first from Afghanistan to Pakistan, where he was arrested and nearly refouled, then onto Iran where he remained for three years. He was arrested by the Iranian police for lacking a residence permit while attempting to make contact with the UNHCR office in Tehran. They sent him to a camp in Zahedan province, where he spent two months alongside some 500 other detainees before being forcibly deported back to Nimruz in Afghanistan.

The Iranian police dumped him in the town of Zaranj near the border and it took him two days to travel to his own village. Because he was a Hazara, on the way through Kandahar he was subject to a Taliban road check. This was three days after the Taliban had been defeated in a battle in northern Afghanistan by a largely Hazara political faction and they were taking retributive actions against Hazaras across the country. The Taliban imprisoned him for three months. There he reports he was tortured "in a way that still affects my psychological health": he was subjected to mock-executions, starved, and made to perform forced labor. He lost twenty-two kilograms in three months and "lost everything except my breath." Finally, the time came when the Taliban executed the stronger prisoners and then traded the weak ones, such as Fahim himself, for their own captured combatants. He was thereby allowed to return to his own village in Hazarajat in 1997. In 1998 Fahim had to flee Afghanistan a second time, again because of persecution related to his ethnicity. This was when he decided to leave the region altogether and head for Australia. On arrival in Australia he was

detained at Woomera Detention Centre for nine months. The psychological impact of this experience, which he said prompted nightmares of both the Iranian refugee camp and imprisonment by the Taliban, was devastating.¹⁵

b) Ongoing Persecution

Some refugees interviewed by Human Rights Watch were unable to escape their original persecutors when they arrived in their countries of first asylum, making their need to flee onwards particularly urgent.

A Pashtun refugee named Faizan, who was summarily returned by Australia to Indonesia in October 2001, explained to Human Rights Watch that he was one of an extremely small Shiite minority in his village of Hasankhal in Afghanistan. People he believed to be affiliated with the Taliban shot two of his cousins in the village, so the next evening, sometime in mid-February 2000, Faizan headed for the Pakistan border. A friend gave him the address of someone in Peshawar, with whom he stayed for three days. After two days, his father followed, bringing money for Faizan to buy a fake passport. "I wanted to stay there [in Peshawar], but there were too many Afghans, including many Sunnis who would persecute us just like at home," Faizan explained. He himself knew of two Shiite neighbors who had fought the Taliban to retain hold of their property and then fled to Pakistan where they were caught by a Taliban cell operating in Pakistan within five days and had their throats slit. "The Taliban had brought their corpses back to my village as a warning. I saw these mutilated bodies with my own eyes, and remembered them too well to think that Pakistan was a safe country for someone like me."¹⁶

Similarly, an Iraqi refugee named Ali told Human Rights Watch how he had fled to Jordan after torture in an Iraqi prison, then moved on to Syria after witnessing forced deportations of Iraqis. His wife, however, chose to remain behind with her relatives in Jordan. In 2001, however, she was killed in suspicious circumstances and he had to return to Jordan to investigate her death, make arrangements for her burial, and for the care of their son. It was at this time that he became conscious of Iraqi security forces in Jordan monitoring his movements, and so he decided to flee the region via smugglers.¹⁷

Lack of Legal Status

A number of countries, particularly those not party to the Refugee Convention, lack national refugee status determination procedures that would provide refugees with legal standing. This is the case with Iran, Pakistan, Syria and Jordan, home to many refugees from Afghanistan and Iraq. During the 1990s, the majority of refugees in these countries were living in a state of legal limbo, often without any identity documents. Many refugees interviewed by Human Rights Watch cited this fact and their desire to provide their children with a more certain status and future as the primary reasons why they attempted to reach a western country.

Since 1995, Iran (which is a party to the Refugee Convention) has not registered new refugee arrivals and in 1997 it declared the "temporary registration cards" it had issued to Afghans in 1993 to be invalid. There was a new registration drive in 2001, but this did not accord undocumented refugees any clear status nor entitle them to greater rights. Since late 1999, the government of Pakistan has similarly failed to grant Afghan refugees any kind of legal recognition and thereby denied them any hope of formal integration. In Jordan and Syria, there is no legal status available to Iraqi refugees under national law after their initial visitors' visas expire. As an Iraqi refugee told Human Rights Watch in Jakarta: "The main thing was that I wanted to belong as a human being to some country, for my dignity. All else came second to that."¹⁸

c) Arrest and Detention

Lack of legal status and denial of work permits in countries such as Iran, Pakistan,¹⁹ Syria, and Jordan left many of the refugees interviewed by Human Rights Watch vulnerable to arrest and detention as "illegal migrants" or "illegal workers." ²⁰

Farwat, a Hazara man from Mazar-i Sharif in Afghanistan, was arrested by the Iranian police as an illegal alien in 1997, when he was sixteen, for working without permission in a shoe repair shop. He spent three months in a prison in Zahedan for adult male convicts. Due to overcrowding, Farwat was forced to sleep every night in the passageways or toilets. He told Human Rights Watch how the Iranian prisoners were given preferential treatment and as an illegal immigrant he had to eat the guard's scraps and bribe them just to take a shower. Farwat had no money and so was able to wash only once during three months, in exchange for a gold chain he had around his neck.

For the final two months of his detention, the Iranian police moved Farwat to a desert camp with an electric fence. There were many other Hazara boys under eighteen there. Every day they received only one meal, and they were so afraid of the desert snakes and spiders they believed to be lethal that it was hard to sleep. Farwat said that the camp guards frequently beat them for no reason, sometimes with electric cords. "Also they made us stand and sit, stand and sit, again and again very fast in the yard in the sun. I myself was beaten almost every day of the two months I was there." Farwat told Human Rights Watch that the only way to get out of this camp was to pay a bribe, but Farwat's brother-in-law did not come to pay for his release. At the end of five months in detention, the Iranian authorities deported Farwat back to Afghanistan:

When the camp inmates became one thousand, then they decided to return some of us. They got everyone with money in their pockets to turn it in and first they returned those people who could pay for their own bus fare. Then they counted the leftover money that they had stolen and calculated how many others they could afford to return. I was one of the people randomly selected to go.

Following his return, he made his way home to his parents' village near Mazar-i Sharif and pleaded to stay, but his father sent him away again to avoid forced conscription by the Taliban.²¹ Farwat spent a further three years in Iran, again living illegally, in constant fear of arrest. When he turned twenty, he chose to return to Afghanistan, unable to bear the hardship of illegality in Iran any longer. However his father remained fearful for his safety and in mid-2001 sent him abroad once more, this time with a smuggler, via Pakistan, towards Australia.²²

In 2001, the Iranian government conducted urban sweeps in which it arrested thousands of "illegal migrants." Many were then held in closed camps, where they were supposed to be screened to identify refugees prior to deportation. There is evidence, however, that a number of detainees were summarily returned to their countries of origin (see above section on refoulement).

d) Discriminatory Denial of Access to Labor Market, Housing, Health Care and Education

Human Rights Watch interviewed many refugees who had been subject to official discrimination in access to work, housing, health care and education in their first countries of asylum. The vast majority of Afghan and Iraqi refugees living in Iran, Pakistan, Jordan, and Syria are subject to discrimination in these areas because they are without any access to legal status. Where discrimination makes daily survival impossible, in certain cases, it may cumulatively amount to persecution within the meaning of the Refugee Convention.

In 1997, President Khatami's labor ministry denied refugees in Iran access to all but the most menial forms of employment - policies that were much more strictly enforced during 1999. However, it was the introduction of a law called "Article 48" in April 2000 which made life untenable for many refugees in Iran, particularly the least welcome group - new arrivals from Afghanistan; it decreed that all foreigners without work permits whose lives would not be threatened by return, should be expelled. New laws were passed in June 2001, following Khatami's re-election. Almost all refugees, including those with residence permits issued in the 1980s, were classed as illegal workers subject to deportation, and a new policy of fining and imprisoning employers of refugees was introduced. Many refugees were immediately fired from their jobs and so lost their homes and all entitlement to medical care. Local authorities also denied refugee children entrance to local schools and closed down self-organized Afghan schools. The new laws prohibited refugees from owning property, exporting goods, or selling them indomestic markets. The refugees were, in other words, systematically denied the means to subsist. For many of those interviewed by Human Rights Watch in Indonesia and Australia, "Article 48" and the June 2001 laws were turning points that compelled them to seek asylum elsewhere.

An Iraqi woman named Leila, interviewed in Indonesia with her husband and two children, explained how she has lived almost her entire life as a refugee. She and her parents were originally exiled to Iran in 1980 when she was ten years old. She lived in Esfahan for twenty years and started a family there. Although they had residence permits, she explains how conditions for them deteriorated over time:

[A]fter the death of Khomeni most Iraqi men were thrown out of their jobs and under Khatami they were banned from working and we had to obtain papers from the police if we wanted our children to attend school. My own children began to mention that they were treated differently at school and Iranian neighbors began to curse me in the street, saying, 'Why do you take our food? Why don't you go home?'...We saw that our children would become adults without nationality, just as we had done, and we asked ourselves 'How long can this go on?'

When Leila's husband lost his job for a second time as a result of the 1999 crackdown on unauthorized workers, he decided to leave Iran for Australia in January 2000. Following his departure, life became increasingly difficult for Leila. She was banned from working and so had no income for four months. She illegally sold nuts in the street in order to feed her children. The first she heard from her husband was when he was arrested in Kupang, in Indonesia, and was awaiting a decision on his claim from UNHCR. Three months later, despite her husband urging her to wait, Leila collected all the money she could from friends and relatives and left with her children to rejoin her husband where he was by then living as a recognized refugee with UNHCR assistance in Jakarta.²³

An Iraqi man named Wali, stranded in Indonesia at the time Human Rights Watch met with him, described what happened to his sisters, wife, and son who were refused legal documents, despite the fact that he himself had a residence permit and his mother and brothers were also documented. His son could never attend school in Iran, he explained,

[a]nd there were other more grave consequences for these unregistered members of my family. If they were injured or attacked by Iranians, they could never sue or go to the police. If they were accused of any minor crime, they might be returned to northern Iraq. My sister was diabetic and could not qualify for any medical treatment or social security. They could not move freely between the cities and towns, they could not open bank accounts, they would be terrified every time a policeman approached in the street...They had no legal existence. I knew of one Iraqi man who was beaten up by an Iranian and tried to sue, but the religious court told him 'You are dreaming...'

After the enactment of the June 2001 laws, Wali was promptly fired from his job as a tailor and could find no other way to earn a living. He and his family took advantage of the fact that the Iranian authorities were offering refugees one-way "aliens passports" and so was able to leave the country by air for Malaysia on September 11, 2001.²⁴

Such stories are not merely evidence of economic hardship, but in some cases may constitute persecution by cumulative economic means, on the grounds of nationality. This persecution may be inflicted upon refugees irrespective of the duration of their residency in the country of first asylum and with the clear purpose of pressuring them to leave the country.

Reasons Refugees Did Not Apply for Resettlement in Australia Prior to Arrival

The Australian government argues that instead of making their own way to Australia, refugees without protection in their first countries of asylum should have applied to come to Australia through the resettlement channel. The government describes them as "queue-jumpers" for not waiting their turn. Human Rights Watch found that there are both real and perceived obstacles that in many cases make it impossible for refugees to rely on such resettlement procedures. These include:

a) Problems of Access to UNHCR Offices or Australian Migration Posts

The UNHCR offices in Tehran and Islamabad are located far from where refugees live.²⁵ But it is personal security, rather than distance, that poses the greater challenge to refugees seeking the assistance of UNHCR. The office in Tehran is inside a walled compound, and both offices, mindful of staff security, are heavily guarded. In Jordan, Iraqis told Human Rights Watch researchers that the Iraqi security forces watch the UNHCR offices, so they could not approach it. Most applications for protection are therefore received by mail, requiring some prior understanding of the application process. Similarly, risk of arrest prevented undocumented refugees from even entering the neighborhoods of the Australian Migration Posts in Iran and Pakistan to apply for resettlement to Australia directly.

Fahim, a Hazara refugee whose experience of refoulement is described above, went to the Australian embassy in Tehran in both 1995 and 1996 and tried to tell them that "I can't feel safe and secure in Iran and they will never let me become legalized here." They only gave him the address of the Australian embassy in Greece and told him to write there to apply for refugee status. He filled in a form, sent a letter to Athens and waited three months for a reply, which just referred him back to the UNHCR office in Tehran. When he tried to enter the UNHCR office in 1997, Iranian security guards stopped him. Twice he tried to sneak past them, and the third time he demanded his right to enter in stronger terms. Confronted in this way, the guards asked to see his residence permit and when he could not produce one they took him to the police headquarters. This arrest ultimately led to his refoulement by the Iranian authorities - a direct result of his effort to seek more effective protection.²⁶

b) Limited Number of Places and the Australian Selection Criteria

The number of refugees in need of protection clearly exceeds the number of resettlement places offered by Australia or other countries. In 2001, for example, only 1,500 cases were referred by UNHCR in Iran to countries of resettlement, despite the fact that hundreds of thousands of refugees were living without any prospects for permanent integration in Iran or lasting solution to their situation - one of the eligibility criteria for resettlement recognized by UNHCR.

Australia limits the numbers it resettles by applying restrictive selection criteria such as the requirement that refugees should be in good health and should produce evidence of having no criminal record, which is often impossible given their lack of legal status in countries of first asylum. In 2001, Australia resettled a total of 625 Iraqis and 331 Afghans. Of these, only 236 Iraqis and 70 Afghans were referred by UNHCR.

c) Excessive Delays that Leave Refugees at Risk

Delays in processing resettlement cases mean that refugees with urgent needs may have to choose between risking their lives and foregoing resettlement application procedures. Refugees often make the rational decision to move spontaneously rather than make applications through the resettlement system when they know from the outset that they must leave the region urgently. Women who are alone and at risk of sexual or other gender-related violence in their countries of first asylum are supposed to be able to seek accelerated protection through Australia's "women-at-risk" program. Yet in 1998-99 only 25 percent of the women-at-risk visas granted by Australia were issued within twenty-six weeks of application, and in September 2001 it was revealed that over 25 percent of such cases processed by Australia in Islamabad had taken over eighteen months. Between the time that an initial visitors' visa expires (for example, after six months in Jordan) and the time of resettlement from the first country of asylum, refugees have no legal status and no legal guarantee against deportation.

One Iraqi mother, recently resettled from Indonesia to Australia, told Human Rights Watch how she tried to go to the UNHCR offices in Tehran five separate times. Iranian, Syrian and Lebanese guards talked to her through a window and asked to see her residence permit. When she told them she did not have one, they gave her a small piece of paper with a handwritten appointment and told her to return in a month's time. Grasping this shred of paper, she returned repeatedly, and each time was refused entry or denied an appointment, possibly because she was there on the incorrect day. The last time she went was after her husband had left Iran in late 1999. She tried to tell UNHCR that she was in danger because she was a woman living alone, but she claims they ignored her:

I was living in a rented room in the house of a married man. This man was pressuring me to have sex with him, and I was too frightened to tell my sons about it because I was afraid what they might do. So I just stayed in the room and put my sons' shoes outside the door, to trick the man into thinking I wasn't alone. I used to cry every night, and begged my sons to let us move but couldn't tell them why. I had no other women friends or family to go to because I was a refugee.²⁷

A woman calling herself Sara is another Afghan mother who in June 2001 was awaiting resettlement from Tehran to Australia, where her husband's brother, an Australian citizen, had sponsored the family. Although she had papers from UNHCR showing her file number, she was caught up in an urban sweep of undocumented foreigners by the Iranian authorities, and was ordered by the police to return to Afghanistan within fifteen days. In those two weeks, Sara and her family tried without success to alert UNHCR to their impending deportation. The UNHCR staff did not give her an appointment because they thought she was needlessly pestering them about the progress of her case. She therefore avoided deportation directly into the hands of her Taliban persecutors²⁸ by returning in private to Herat and staying in hiding for a few weeks before fleeing again, this time into Pakistan. She stayed in Karachi for twenty days before deciding that it was unsafe and that she and her family should leave the region altogether.²⁹

Reasons Refugees Traveled as far as Australia

a) The Smugglers' Decision

Many refugees never consciously decided to go to Australia - that decision was made for them by smugglers. The refugees had asked only to be taken to a country that would give them a secure legal status - a "safe country" or "anywhere in the whole world where my children could go to school and have a legal status."³⁰

Australia was the cheapest and easiest such country to reach from the Middle East and South Asia. This was because of low airfares to Kuala Lumpur, the fact that Malaysia granted visas-on-entry to all nationals of Islamic countries during 1999-2001, and the low cost of the rickety fishing boats that transported asylum seekers on the final leg of their journey to Australia. Any route to Europe or North America required both waiting longer without protection and paying a much higher price to obtain false documents. Most refugees incurred large debts to make the journey beyond their region, and it was necessary for them to arrive in a relatively affluent country so that they could pay off these debts within a required period of time. In some cases relatives at home faced serious consequences if debt payments were not made.

b) Australia's Reputation for Respect of Human Rights

Refugees commonly cited Australia's reputation as a leading defender of human rights as a reason for choosing it as their destination. One young Afghan widow could not grasp why Australia might want her via a women-at-risk resettlement program but not if she traveled to Australia at her own expense: "I knew nothing about Australia except its name, and I was told that they were people who supported human rights and would take care of a woman refugee who was alone," she told Human Rights Watch. ³¹

c) Lack of Effective Protection in Southeast Asia

The vast majority of refugees interviewed by Human Rights Watch in Australia and Indonesia had transited through Southeast Asia - in most cases, Malaysia and Indonesia. Neither of these countries have signed the Refugee Convention and neither have provisions in their domestic laws permitting refugees to stay. The authorities do not tolerate the presence of undocumented "transit migrants" from the Middle East or Afghanistan, nor allow them to integrate in any way. The only factor, other than failings of Indonesian law enforcement, which prevented such refugees transiting these countries from being arrested, detained, and possibly deported was the discretionary operation of UNHCR under its mandate. The International Organization for Migration (IOM) is also funded by Australia to provide asylum seekers with material assistance while they are in Indonesia. This subsistence support is not, however, a long-term solution nor does IOM have any human rights or refugee protection mandate.

In its investigation, Human Rights Watch found that refugees who were transiting these countries between 1999 and October 2001, including a large number of women and young children, were subject to detention under inhumane conditions. They were unable to avoid arrest by registering with UNHCR for a variety of reasons. These included fears that approaching the UNHCR office in Kuala Lumpur would precipitate arrest, and misinformation on the part of the smugglers who mostly kept them in locked rooms until it was time to attempt an illegal departure. The smugglers did not tell their clients their whereabouts, kept hold of their documents, and, if asked, said that UNHCR was "not accepting any more people." Other refugees in transit who had registered with UNHCR in Indonesia or Malaysia to have their status assessed told new arrivals their stories of agonizingly long delays and what they perceived as unjust rejection of claims. This added to a residual lack of confidence in UNHCR and the resettlement process in general. Between January 1999 and August 2001, UNHCR Jakarta identified 476 asylum seekers as refugees, but only eighteen departed Indonesia for resettlement during that time.

d) Family Reunion

In addition to the factors described above, family ties were also relevant to the decisions of many refugees to go to Australia. Women whose husbands had already been recognized as refugees in Australia, but who were denied the right of family reunion, felt they had no option but to try and join them on their own accord. This necessarily entailed leaving their country of first asylum in an "unauthorized" manner.

In conclusion, Human Rights Watch found that a significant percentage of the secondary movement of refugees from the Middle East and South Asia, via Southeast Asia toward Australia, could be classified as forced migration at all stages. The increase in arrivals of Afghan and Iraqi asylum seekers in Australia and also in Europe and North America in 1999-2001 correlates closely with the deterioration of refugee protection conditions in countries of first asylum, particularly Iran and Pakistan. Denied access to resettlement and compelled to move onwards, refugees were then driven by the logic of the smuggling business and the absence of effective protection in Southeast Asia to try to reach Australia. At the very least, Australia should give individuals an opportunity to explain why they have not been able to find effective protection somewhere else before rejecting them at the border and/or penalizing them by means of the policies described in Parts I and III of this briefing.

PART III

The Negative Export Value of Australian Policy

Australian refugee policies violate core human rights and refugee protection obligations.³² Australia's application of these measures poses a serious challenge to the right to seek asylum, and other asylum states should not contemplate its lead.

All of the policies penalize refugees by unnecessarily denying them full enjoyment of their rights, and do so without giving the individuals concerned a fair opportunity to show why they may have had "good cause" to move illegally from their first country of asylum. For those refugees whose lives or freedom were threatened in their first country of asylum or countries of transit, this is a violation of Article 31 of the Refugee Convention.³³

The key elements of Australia's new immigration policies that Human Rights Watch considers "not for export" include:

a) Closure of the coastal border

The obligation of non-refoulement applies no less during interceptions at sea, where those wishing to seek asylum enter a state's territorial waters or where state agents perform the interception. Furthermore, preventing entry of asylum seekers at sea, without granting them access to fair procedures to identify and protect those facing threats to their life or freedom as a direct or indirect result of being denied entry, constitutes "rejection at the frontier." This is a practice condemned by numerous UNHCR Executive Committee Conclusions (for example, ExCom Conclusions Nos. 15, 23 and 30³⁴). While "rejection at the frontier" usually refers to a frontier with a country of origin, it is also relevant to "safe third country" returns or any other refusals of entry that may endanger a refugee.

The manner in which the closure of the coastal border took place Ñ involving, for example, detention of men, women and children in "cruel, inhuman and degrading"³⁵ conditions on board fishing vessels, and abandonment of dangerously overloaded boats in the open seas rather than their delivery to a "place of safety" ³⁶ Ñ is also a reminder that interceptions at sea frequently result in other violations of international human rights and maritime law.

The larger, precedent-setting danger of Australia's closed door policy was demonstrated when President Musharraf cited Australia's actions as justification for his own policy of closing Pakistan's land border to thousands of Afghan refugees fleeing armed conflict in Afghanistan in October 2001.³⁷ Although Australia rightly argued that Pakistan's actions amounted to direct refoulement, whereas theirs did not, Pakistan's own irresponsible action revealed Australia's rhetoric for what it was: a means by which to divest itself of responsibilities and obligations for those seeking asylum in its territory.

b) "Excision" of territory

Asylum seekers whose applications are determined on Christmas Island or any other excised territory are not granted the same due process rights, such as an independent appeal mechanism and independent legal advice, as applicants on the Australian mainland. If a refugee is recognized, the excision policy delays and obstructs her enjoyment of effective protection in Australia. If she has family members already in Australia, these obstructions show disregard for the fundamental humanitarian and human rights principle of family unity. For such individuals, being processed on an excised territory can be viewed as a form of penalization, and, for those who set out from a previous country of asylum where they were faced threats to their life or freedom, this is a violation of Article 31 of the Refugee Convention.

The use of a closed camp to indefinitely detain all asylum seekers arriving in or sent to Christmas Island is "arbitrary" on several grounds, including because it is not subject to periodic review by an independent body.³⁸ As such, it violates the fundamental right to freedom from arbitrary detention contained in the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, among other instruments,³⁹ as well as disregarding international standards relating to the treatment of refugees.⁴⁰

c) "The Pacific Solution"

Residents of the camps on Nauru and Manus Island, Papua New Guinea have almost no contact with the outside world. Private individuals with written invitations from residents have been denied entry to the Nauru facilities.⁴¹ Not only have Human Rights Watch, Amnesty International, and human rights lawyers been denied access to the facility in Papua New Guinea, but so have Caritas Australia and even a local priest.⁴²

DIMIA acknowledges that the freedom of movement of residents in all the Pacific facilities is substantially curtailed.⁴³ In Nauru, as of June 2002, IOM has taken residents on excursions, which require applying for a pass and are limited to short, heavily supervised visits to a few locations. In Papua New Guinea no excursions are permitted.⁴⁴

According to human rights law, the distinction between restrictions on free movement and detention is "merely one of degree or intensity, and not one of nature or substance."⁴⁵ While all "limitations on domicile and residency" may not amount to detention, UNHCR suggests that "the cumulative impact of the restrictions" on freedom of movement may make use of the term "detention" appropriate.⁴⁶ Therefore Human Rights Watch concludes that the facilities in Nauru and Papua New Guinea are places of detention.

The detention on the Pacific sites is also arbitrary on a number of grounds, including because it is non-reviewable and indefinite. It is also contrary to UNHCR Executive Committee Conclusions and other guidance saying that asylum seekers and refugees should only be detained in exceptional circumstances. As such it is a violation not only of Nauru and Papua New Guinea's human rights obligations, but also of Australia's obligation under the Refugee Convention to provide all refugees who enter its territory Ñ even when they are only briefly present in Australian territorial waters prior to expulsion Ñ with effective protection.

The rights of refugees who are transferred to Nauru and Papua New Guinea are unnecessarily obstructed in multiple ways. First and foremost, they are denied access to the due process guarantees, such as independent legal advice, provided for under Australian law during the asylum determination process. Secondly, recognized refugees have to apply and wait for resettlement rather than being automatically granted a visa for Australia. Finally, because Australia is only accepting those with immediate family members already in Australia for resettlement, those refugees with more distant relations in Australia are being denied the chance to reunite with perhaps the only person they know living outside their own region. The forcible transfer of children to the Pacific states when they had family members living in Australia does not appear to have been implemented with each child's "best interests" as "a primary consideration," as required by the UN Convention on the Rights of the Child.⁴⁷ Cumulatively, such restrictions on refugees' rights amount to penalization. As such, Australia is in violation of Article 31 of the Refugee Convention with respect to those refugees who have come from countries, including first countries of asylum, where their lives or freedom were threatened and who triggered Australia's protection obligations by entering its territory.

The overall impact of the "Pacific Solution" is to shift responsibility for refugee protection onto nations with fewer resources. Rejected asylum seekers held in detention, without the means to appeal either their detention or their asylum decisions, are likely to feel pressured into returning even before conditions are safe in their country of origin.

Human Rights Watch fears that Australia's attempt to fulfill its own international obligations through arrangements with states in which the asylum seekers never set foot nor intended to go could be replicated wherever one government has enough political or financial leverage over another. "Safe third country" returns may in future be replaced by forcible transfers to countries without refugee protection obligations and in which refugees can never settle. States may attempt to process asylum seekers under UNHCR-like refugee status determination procedures, but using their own immigration officers, as Australia is doing in Nauru and Papua New Guinea. There is, for example, a suggestion that Kurdish asylum seekers arriving at the external borders of the European Union in Greece and Italy could be returned to an E.U.-funded detention center in Albania and be processed by E.U. officers under a system involving reduced procedural guarantees ("The Aegean Sea Initiative").

d) Returns to states not offering effective protection

Australia did not declare Indonesia a "safe third country" and had signed no binding agreement with Indonesia concerning the protection of refugees before implementing forced returns. The only guarantee for the safety of returnees was an agreement with the Indonesian police not to arrest and deport asylum seekers so long as UNHCR processed their asylum claims and IOM assisted them. This is not an adequate commitment by the Indonesian government to protect refugees against refoulement and to respect their other rights; it does not amount to effective protection.

Human Rights Watch investigations in Indonesia strongly suggest that UNHCR refugee status determination procedures did not guarantee refugees full due process protections, and that UNHCR was unable to provide adequate physical protection to refugees and asylum seekers as when, for example, they were violently attacked by Indonesian mobs in Cisawa in April 2002. The requirement that recognized refugees should apply and wait for resettlement, meeting discretionary selection criteria of resettlement countries, is also an unnecessary obstacle to their acquisition of legal status and enjoyment of the right to family reunion. In summary, being expelled from a state that is a signatory of the Refugee Convention to one that is not should be viewed as a penalty because it results in unnecessary limitation of an individual's enjoyment of his rights under international human rights and refugee law.

For those who entered Australian territorial waters and were then returned, Australia has a continuing obligation under the Refugee Convention to ensure that they receive effective protection, which creates a special legal responsibility for Australia to resettle those persons, so long as Indonesia and other states refuse to take them. For these persons, Australia also has a legal obligation under the Convention on the Rights of the Child, to see that "the best interests" of the children involved form "a primary consideration" in all administrative decisions.

Human Rights Watch fears that Australia's reliance on UNHCR processing in Indonesia as an adequate measure of protection is in many ways a more dangerous precedent than the exorbitantly expensive and contrived arrangements with Nauru and Papua New Guinea. The Indonesian arrangements are more easily replicable by other states looking for the lowest common denominator in "safe third country" returns. UNHCR has so far failed to publicly condemn this misuse of its mandated operations for deterrent purposes.

e) Temporary Protection as a penalty

Australia's temporary protection visa regime not only denies refugees rights guaranteed in the UN Refugee Convention, but it is also a misuse of the concept of temporary protection. Temporary protection was intended by UNHCR and its Executive Committee to be used as a tool of emergency protection in mass influx situations when it is impossible to conduct individual status determinations. The recent E.U. Directive on temporary protection recognizes this to be its proper use, and also recognizes that it cannot be prolonged indefinitely - refugees must have a chance to seek permanent protection after five years holding such temporary status.

The Australian government has grossly abused this concept by using it instead to penalize refugees who arrive in an unauthorized manner and have transited through another country en route. Moreover, the temporary protection visas provided by the Australian government violate at least two core rights: the right to travel documents under Article 28 of the Refugee Convention, and also the principle of family unity, contained in numerous human rights treaties, affirmed in the Final Act of the U.N. Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, and included in a wide array of UNHCR Executive Committee Conclusions.

In addition, Article 1(C) of the Refugee Convention provides clear guidance to states on when they can cease providing international protection to recognized refugees. This usually occurs when there has been a change in conditions in the refugees' countries of origin of a "profound and enduring nature." 46 Australia is subverting this process by requiring certain recognized refugees with Temporary Protection Visas to repeat the refugee status determination procedure every three years. They therefore live in a constant state of limbo, fearing revocation or cancellation of their visas and the prospect of forced return to unstable countries not yet free from cycles of ethnic and political violence.

The subsequent "seven-day rule," which denies permanent residence in Australia to any refugee who has spent more than seven days in a previous country where he could have sought protection, breaches Australia's obligation under Article 34 of the Refugee Convention to "as far as possible facilitate the assimilation and naturalization of refugees." It also obstructs UNHCR's work to facilitate refugees' "assimilation within new national communities," as stated in Article 1 of the UNHCR Statute. If an individual is not provided with an effective means of challenging the presumption that she enjoyed prior safety, the application of the rule will also fail to meet established standards of due process.

Despite existing law defining the use of temporary protection in the European Union and elsewhere, there remains a danger that asylum states will copy Australia by curtailing the length and quality of refugee protection under another guise but in a similarly punitive and deterrent manner.

Conclusion

Australia has failed to recognize the human rights-related causes of much secondary movement from the Middle East and South Asia. Its policies turn a blind eye to the fact that many individuals face risks to their lives and freedom, or cumulative economic persecution on the grounds of nationality, after becoming refugees. The Australian approach also fails to acknowledge that protection can be reasonably effective for many years and then deteriorate dramatically, forcing a refugee who was once settled, in practice if not in law, to make an onward movement. Length of presence in another asylum country - whether seven days or seven years - is not in itself significant in determining whether someone was effectively protected in that place at the point when they decided to leave.

There is a very real danger that other western countries will be dissuaded from taking in asylum seekers who are outside their regions of origin if Australia does not receive clear international condemnation for its current policies. These policies restrict and in several cases violate the rights of individual refugees now in Australia, Indonesia and the Pacific, with the deliberate intention of deterring others from heading toward Australia. Where secondary movement is involuntary, as it was for many Iraqis and Afghans leaving their region of origin during 1999-2001, successful deterrence by such means is repugnant to the profound concern for refugees that States Parties to the Refugee Convention ought to show.

Human Rights Watch therefore urges the Australian government to: admit all asylum seekers to full determination procedures on Australian territory and under Australian law; release and resettle refugees now stranded in Indonesia and the Pacific; reverse its policies of territorial excision and mandatory detention; refrain from using temporary protection as a form of penalization and let refugees seek effective protection by spontaneous movement as well as by orderly resettlement; and finally, cease its efforts to export its own false premises and bad practices to other asylum states around the world.

Human Rights Watch wishes to thank The Ford Foundation for supporting our research for this Briefing Paper and the forthcoming report, "By Invitation Only."

¹ Border Protection (Validation and Enforcement Powers) Act 2001; Migration Amendment (Excision from Migration Zone) Act 2001; Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001.

² The Migration Act 1958 explains that to "enter Australia" means to "enter the migration zone" and this in turn was, until September 2001, defined as "(a) land that is part of a State or Territory at mean low water; and (b) sea within the limits of both a State or a Territory and a port; and (c) piers, or similar structures, any part of which is connected to such land or to ground under such sea; but does not include sea within the limits of a State or Territory but not in a port."

³ Migration Legislation Amendment (Transitional Movement) Act 2002.

⁴ Convention Relating to the Status of Refugees, July 28, 1951, 189 UNTS 150, as amended by Protocol Relating to the Status of Refugees, January 31, 1967, 606 UNTS 267.

⁵ Migration Regulations 1994 (Austl.), as amended by Migration Amendment (Excision from Migration Zone)(Consequential Provisions) Act 2001.

⁶ See UNHCR Excom Conclusion No.69 (1992), the UNHCR Note on Cessation Clauses [UN Doc. EC/47/SC/CRp.30 (1997)] and Guidelines on the Application of the Cessation Clauses [UNHCR/1OM/17/99].

7 "Follow my lead on refugees, Ruddock tells Europeans," Sydney Morning Herald, August 24, 2002.

⁸ Quoted in an Australian Broadcasting Corporation report, August 22, 2002. Note that Australia also used this tour to sign a new readmission agreement with South Africa for the return of "all third country nationals who have transited South Africa for at least seven days before arriving illegally in Australia and claiming asylum."

⁹ The comparison made by Australia's Minister for Immigration, between Iraqi or Afghan refugees who moved onto Australia and those moving illegally between France and England ("Getting tough 'is only way to stop asylum-seekers,'" The Times, London, August 16, 2002) disregards the very different quality of refugee protection in France and in countries like Pakistan or Indonesia.

¹⁰ Statement by Mr. Ruud Lubbers, UN High Commissioner for Refugees, at an informal meeting of the European Union Justice and Home Affairs Council, Copenhagen, September 13, 2002.

¹¹ See, for example, Executive Committee Conclusion No.58 (1989) regarding "irregular movement."

¹² UNHCR statistics for calendar year 2000, quoted in "Girt by Sea," Quarterly Essay by Mungo MacCallum, 5 2002 iii, p.45.

¹³ Note that this section relates only to returns prior to September 2001 - the period during which the refugees intercepted by Australia were in transit. Since the fall of the Taliban, there have been vast numbers of spontaneous returns to Afghanistan from neighboring countries.

¹⁴ USCR World Refugee Survey 2002 and various press reports.

¹⁵ Human Rights Watch interview, No. 40, Melbourne, April 3, 2002.

¹⁶ Human Rights Watch interview, No. 24, Mataram, Indonesia, April 18, 2002.

¹⁷ Human Rights Watch interview, No. 27, Mataram, Indonesia, April 17, 2002. The US Committee for Refugees has noted numerous reports that Iraqi government agents are able to operate freely in Jordan [See USCR World Refugee Survey 2000].

¹⁸ Human Rights Watch interview, No. 3, Jakarta, April 9, 2002.

¹⁹The constant risk of arrest and detention plagues undocumented refugees in Pakistan, including every refugee who arrived after 1999. The ethnic Tajiks, Uzbeks and Hazara are particularly vulnerable to harassment and extortion by the Pakistani police and threatened with arrest under the Foreigners Act if they do not pay up. Even in the well-established Afghan community of Quetta, authorities at the District Prison told Human Rights Watch in December 2001 that most of the Afghans in their facility were held merely for violating the Foreigners Act and Order [Human Rights Watch interview with Quetta District Prison Authority, December 1, 2001 - See: "Closed Door Policy: Afghan Refugees in Pakistan and Iran," A Human Rights Watch Report, vol.14, no.2 (G), February 2002].

²⁰ This is true for approximately 20,000 Iraqis who, according to UNHCR, live unregistered in Syria and yet would have valid refugee claims if interviewed, as well as a large but unknown percentage of the 180,000 Iraqis living without status in Jordan.

²¹ In May 1997 some 2,000 Taliban prisoners were summarily executed by ethnic Hazara and Uzbek forces, leading to a series of reprisals culminating in the massacre by the Taliban of some 2,000 civilians in Mazar-i Sharif in August 1998 and threats by the newly installed Taliban governor of that city that Hazaras would be killed if they did not convert to Sunni Islam or leave Afghanistan. This was around the time that Farwat departed this region. See "Afghanistan: the Massacre in Mazar-i Sharif," A Human Rights Watch Report, vol. 10, no. 7, November 1998.

²² Human Rights Watch interview, No. 21, Mataram, Indonesia, April 17, 2002.

²³ Human Rights Watch interview, No. 4, Cisawa, Indonesia, April 10, 2002.

²⁴ Human Rights Watch interview, No. 28, Mataram, Indonesia, April 18, 2002.

²⁵ UNHCR also has offices in Peshawar and Quetta in Pakistan, but these are focused on assistance to refugee camps rather than on processing of resettlement applications.

²⁶ Human Rights Watch interview, No. 40, Melbourne, April 3, 2002.

²⁷ Human Rights Watch interview, No. 11, Jakarta, April 12, 2002.

²⁸ See "Humanity Denied: Systematic Violations of Women's Rights in Afghanistan," A Human Rights Watch Report, vol. 13, no. 5 (C), October 2001.

²⁹ Human Rights Watch interview, No. 15, Mataram, Indonesia, April 15, 2002.

³⁰ Human Rights Watch interview, No. 33, Mataram, Indonesia, April 20, 2002.

³¹ Human Rights Watch interview, No. 13, Mataram, Indonesia, April 15, 2002.

³² A fuller description of the basis for finding each violation will be found in Human Rights Watch's forthcoming report on Australian refugee policy: "By Invitation Only."

³³ Article 31(1) of the 1951 Refugee Convention states:

The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of Article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Whereas some governments argue that the term "penalties" refers only to criminal sanctions (such as prosecution, fine or imprisonment), UNHCR has taken the term to mean "any unnecessary limitation to the full enjoyment of rights granted to refugees under international refugee law." (UNHCR Division of International Protection internal memo, May 2002, quoted in: "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection," Guy S. Goodwin-Gill, UNHCR Global Consultations, October 2001, p. 9.) The phrase "coming directly" should not be interpreted in relation to a set time period spent in transit, as Australia has interpreted it, but should be understood as referring to the general urgency with which an individual refugee moves onwards as soon as she becomes imperiled at any stage of her exile. The primary purpose of Article 31 is to prevent the imposition of improper penalties, not to prohibit secondary movement.

³⁴ UNHCR Excom Conclusion No.30 (1983), for example, recommends that an asylum seeker "should be enabled to have a negative decision reviewed before rejection at the frontier or forcible removal from the territory."

³⁵ See, inter alia: Article 7 of the International Covenant on Civil and Political Rights (ICCPR) [December 16, 1966, 999 UNTS 171] and Article 37 of Convention on the Rights of the Child (CRC) [November 20, 1989, U.N. Doc A/44/49 (1989)].

³⁶ See definition of "rescue" in 1988 Amendments to the International Convention on Maritime Search and Rescue, 1979, of which Australia is a signatory.

³⁷ Quoted in: "Pakistan Leader's Swipe at Australia's Refugee Ban," The Sydney Morning Herald, October 24, 2001.

³⁸ See A v Australia, Human Rights Committee Communication No. 560/1993 of April 30, 1997, emphasizing that "every detention decision should be open to periodic review so that the justifying grounds can be assessed" and finding that the absence of this review right constituted arbitrary detention.

³⁹ ICCPR Article 9 provides that "No-one shall be subjected to arbitrary arrest or detention" and CRC Article 37(b) provides that "No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time." See, in particular, ICCPR Article 9.4, which states the right of any detainee to "take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention" and CRC Article 37(d), which states a detained child's right to "challenge the legality of deprivation of his or her liberty before a court or other competent, independent and impartial authority."

⁴⁰ See UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, February 1999; UNHCR Excom Conclusion No. 44 (XXXVII). See also the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988).

⁴¹ Human Rights Watch interview with Kate Durham, July 2002.

⁴² Caritas Australia's Submission to the Senate Select Committee on a Certain Maritime Incident.

⁴³ Human Rights Watch interview with DIMIA Offshore Management, May 2002.

⁴⁴ This information is based on Human Rights Watch interviews with DIMIA offshore management and with selected IOM staff who wish to remain nameless.

⁴⁵ See Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) 27 (1980).

⁴⁶ See UNHCR Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers, February 1999.

⁴⁷ CRC, Article 3

46 See UNHCR Excom Conclusion No.69 (1992), the UNHCR Note on Cessation Clauses [UN Doc. EC/47/SC/CRp.30 (1997)] and Guidelines on the Application of the Cessation Clauses [UNHCR/1OM/17/99].