VI. WHY REFUGEES DO NOT REMAIN IN TRANSIT COUNTRIES

The Australian government argues that refugees compelled to leave their region of origin should and could have sought protection or applied for resettlement at a UNHCR office in a Southeast Asian country such as Malaysia or Indonesia. The fact that they did not wish to remain in these countries in question, either for the full duration of their exile or for the duration of their resettlement processing, is presented as evidence that they were economically motivated and are therefore less deserving of settlement in Australia. Human Rights Watch, however, found that effective protection was not readily available in these Southeast Asian countries during 2000 and early 2001, the period in which most of those intercepted by Australia were in transit.

Access to protection in Malaysia
Malaysia has not signed the Refugee Convention and there is no provision in its domestic law for refugees from Iraq, Iran or Afghanistan to remain in the country.¹³⁶ Anyone found harboring illegal immigrants faces up to five years in jail, or a RM10,000 fine.¹³⁷ Refugees arrested for overstaying a visitor's visa face detention and summary return, possibly resulting in refoulement. Refugees recognized by UNHCR but not by the Malaysian government are not protected by Malaysia and are not allowed to integrate locally.

Access to resettlement from Malaysia
During 2000 and early 2001, when the refugees intercepted by Australia were in transit, UNHCR in Kuala Lumpur, Malaysia had a small office with chronic staff shortages, so that only one or two officers were doing refugee status determinations and reviewing one another's work if a refugee appealed a rejection.¹³⁸ The office was located on a hill near the national palace, with heavily policed streets so that, if the refugees' documents were not in order, they risked arrest by the Malaysian police trying to reach the office.¹³⁹ One Afghan man arrested as an illegal immigrant claims to have been kicked and punched before being thrown into a Malaysian jail alongside a fellow Afghan who had been so badly beaten that his head was bleeding profusely and the police had to take him to hospital.¹⁴⁰ During 2000 Human Rights Watch researchers in Malaysia spoke to asylum seekers who said they did not go to UNHCR because they knew of people who had been arrested in the attempt, and because, as they put it, "everyone gets rejected" anyway.¹⁴¹ In fact, 250 refugees were recognized by UNHCR Malaysia during 2001, and seventy-one were resettled to other countries, but many asylum seekers interviewed by Human Rights Watch in Indonesia claimed that they had been unaware of UNHCR's presence in Malaysia ¹⁴² or even what country they were transiting.¹⁴³ The majority had had no opportunity to contact UNHCR because they were met on arrival at Kuala Lumpur airport by a smuggler who did not let them go outdoors until the time came to transport them to Indonesia. Misinformation from smugglers therefore played as important a role as objective obstacles to accessing the UNHCR "queue."

Access to protection in Indonesia
The situation for asylum seekers and refugees in Indonesia has improved over time since late 2001, as described in a subsequent section of this report; this section is intended only to describe the conditions prevailing during 2000-2001 when refugees intercepted by Australia were transiting through Indonesia.

Indonesia is not a signatory to the Refugee Convention and the Indonesian Immigration Act makes no provision for the legal entry or residence of refugees.¹⁴⁴ As a result, all unlawfully present foreigners detected in Indonesia are subject to "quarantine detention," pending deportation.¹⁴⁵ Indefinite administrative detention of illegal migrants, including refugees, in a prison, police station or special "quarantine" or "immigration center" was common practice in Indonesia during 2000-early 2001, especially for individuals arriving in Jakarta. While the Indonesian authorities tolerated some groups of illegal migrants who participated in the informal economy, Afghan and Iraqi refugees were not overlooked in this way.

In 2000, at the beginning of its operations in Indonesia, the International Organization for Migration (IOM) could do little more than bring food to those detained under Indonesian law and notify UNHCR about those who said they were refugees. Human Rights Watch collected three corroborating testimonies from refugees who alleged that in one case IOM did not perform its role in this way. The refugees stated that they were in the town of Senggigi on the island of Lombok in February 2000, being kept in a hotel by a smuggler along with two others, when a man who introduced himself as an Australian official came to the hotel with the Indonesian police.¹⁴⁶ He stayed until midnight trying to persuade the Iraqi refugees to return to Iran. "He gave us information about the sinking in the sea, persuading and frightening us, and told us that `We will return you to Indonesia even if you reach Australia'..." He also took many photographs of them. When the five Iraqi men said they could not safely return to Iran, the Australian escorted them to the local jail, where they spent twelve days in a room with a leaking roof, no mattress, and little food. They had no way to inform anyone of their whereabouts. One of the refugees was particularly shaken as he said it reminded him of the prison cell in which he was arbitrarily detained in Iraq. After eight days, an IOM representative finally came:

He told us it was our own fault that we were there, for entering Indonesia illegally. He told us we had to either return, with his assistance, to Iran or Iraq, or go to court and get a criminal charge for illegal entry. If we could not pay the fine, the IOM man told us that we would have to remain in the prison and serve a sentence. We were desperate because we had no money left to pay any fine, and because we knew our lives would be at risk if we were returned to Iraq. We did not believe that Iran would accept us back either, since we had signed papers when we left promising we would never return.

According to the three testimonies, at no point during this one hour of heated conversation in broken English did the IOM representative mention UNHCR or the right to seek asylum. He changed his attitude only when they said to the IOM representative, "You say you work for a humanitarian organization. If that is the case why don't you help us pay our fine with that same money which you would use to return us?" He left saying he would attend their court hearing. There were no other witnesses to this conversation except for an Indonesian guard who did not speak English. Later, by chance, their smuggler got into a fight and was detained in the same prison. When the smuggler's contacts bailed him out, he promised to come back soon and bail the five Iraqis out. That is how they were released.¹⁴⁷ IOM Jakarta strongly denies this story, stating that no IOM representative was even posted or present in Lombok during February 2000. There is confirmation, however, of the presence of an IOM representative at another interception incident in Sengiggi, alongside UNHCR, in mid-March 2000, just a few weeks earlier.¹⁴⁸

Others interviewed spoke of the appalling conditions in "quarantine" detention when they were trying to transit Indonesia during 2000. One Hazara family, including two children aged two and four, spent three months in a two-meter by two-meter cell in a detention center based near Jakarta, where each day they received only a cup of water and a dirty fistful of rice, containing ants and rat feces. They were locked in the cell for twelve hours a day and allowed outdoors for just two hours a week. IOM did not visit them and their only way to contact the outside world was to bribe the guards. The father repeatedly paid bribes to send faxes to UNHCR officials, who came to see them after two weeks. UNHCR asked him to fill out the form to claim asylum and then a full two months later returned to interview him. By this time his health had deteriorated and he spent most of his asylum interview just begging for release.¹⁴⁹ In September 2000, after seventy more refugees were placed in the center, UNHCR interventions resulted in an improvement in conditions, with cells unlocked and less restricted movement. Many asylum seekers therefore left the detention center and tried to go to Jakarta. UNHCR urged them to return rather than face harsher treatment elsewhere, and intervened with authorities to prevent their re-arrest. This particular Hazara family, however, said that they had felt coerced by UNHCR and IOM into returning to the detention center and chose instead to live on the charity of other Afghans in Cisawa.¹⁵⁰

In May 2001, while taking the bus in Lombok, Habib and his family were arrested as illegal migrants, along with a large group of refugees. The Indonesian police moved seven of the men, including Habib, to the Mataram police station where they remained for twenty days. They were all put in one room, where water was leaking on them and where they slept on pieces of wet wood. The room had a window with an iron net through which they could speak to their families, but they were never allowed out. IOM had been informed about the detention of the group and was supplying the police with food to pass to them, but the police did not notify IOM that these seven men were being held in the prison. The imprisoned men were denied access to phones or to anyone but their families. No one informed them of the rules or their rights and they had no idea how long they would be detained. The wives and children of the men were housed in the local mosque, where they had to sleep on the floor.

After twenty days, one of the seven men escaped and called IOM. A representative came to visit them the next day. At this point they were all released and stayed in an unused hotel until UNHCR arrived a month later to conduct asylum interviews. By then those with money had disappeared with smugglers. The two families with no money left, including Habib's, still there when UNHCR arrived.¹⁵¹

Such testimonies demonstrate that in the years when refugees were deciding whether or not to make secondary movements from Southeast Asia to Australia, UNHCR and IOM had extremely limited ability to either protect or assist those who claimed asylum after being arrested as "irregular migrants" in Indonesia. The Indonesian authorities clearly did not distinguish between persons in need of international protection and other illegal migrants, and refugees were constantly at risk of detention.

Access to resettlement from Indonesia
Asylum seekers were unable or too afraid to make contact with UNHCR immediately upon arrival in Indonesia. One Hazara boy who had never left Afghanistan before he traveled via Iran and Pakistan to Malaysia, said that he stayed for three days in Kuala Lumpur, then took a boat and a five-hour car trip under smugglers' escort to Medan in Indonesia, where he stayed for one day. "The smuggler told us to stay hidden. We didn't know the rules or regulations of this country, and were too afraid of being arrested to disobey. The smuggler told us we could be thrown in jail for up to five years for being illegal immigrants." All that he did know was that Indonesia "did not accept refugees."¹⁵² Another Afghan man, when asked why he didn't try to contact UNHCR in Indonesia in between his many failed attempts to reach Australia by sea, replied:

At the beginning I had never heard of their system. The smugglers kept us away from such information. We were told that the U.N. would make problems for us, so I never really understood about their role until I sat in my interview [after being forced back to Indonesia by the Australian navy]. I had no contact with any asylum seekers registered with UNHCR during those months when I was trying to take the boats.¹⁵³

Other asylum seekers testified that they did not try to contact UNHCR Jakarta because they assumed it would be as slow as in Iran or Pakistan or because the smugglers told them that UNHCR "was not accepting any more people."¹⁵⁴ One Iraqi, already disillusioned after the UNHCR office in Tehran had told his friends, sent to inquire on his behalf, that they "could not help him," remembers being told by other Iraqis he met in Jakarta that the UNHCR office there was "inactive."¹⁵⁵ Another Iraqi family explained that at the beginning they had only spent one day in Jakarta under the constant supervision of a smuggler who would never have let them contact UNHCR. Later, living in Cisawa while awaiting a boat to Australia, they learned that resettlement processing could take two or three years and they met with Iraqi refugees who had been rejected by UNHCR, who said they had no future in Indonesia, no hope of return in safety to Iraq, and now believed themselves to be branded as rejected cases if they sought asylum elsewhere.¹⁵⁶ Between January 1999 and August 2001, UNHCR Jakarta recognized 476 refugees; just 18 were resettled, due to a lack of response to UNHCR referrals from resettlement countries.

Two asylum seekers interviewed in Indonesia said that their original intention had been to travel only as far as Jakarta and apply for resettlement from there, but one was physically prevented from doing so by her smuggler who wanted to deliver her to Australia, where he expected to receive the final installment of his payment from a family friend of hers,¹⁵⁷ and the other was dissuaded by a friend who had arrived earlier in Jakarta and told him that it seemed a "fake process." This man complained, "At least in Tehran UNHCR had told us honestly `We can do nothing' when we went to their offices. In Jakarta it is similar but they are not so truthful about it."¹⁵⁸ As another refugee put it, "We had lost confidence. We were just prisoners in the hands of the smugglers once we were outside our part of the world."¹⁵⁹

Conclusion
In summary, the main protection problems faced by refugees in Southeast Asian transit countries during 2000 and early 2001 were the risk of arbitrary detention, ill-treatment and deportation as "illegal migrants," exploitation and misinformation by smugglers, and difficulties in accessing the UNHCR determination and resettlement system. Lack of trust in the justice and efficiency of UNHCR procedures also caused many refugees, who obviously would have preferred to forgo the dangers and financial costs of illegal travel, to continue their journey toward Australia.

136 See Human Rights Watch, "Living in Limbo," A Human Rights Watch Report, 2000, p.25-6.

137 Under new, hard-line laws effective in August 2002, the penalty will be a mandatory six months in jail and/or receiving six strokes of a cane. "Stop harbouring illegals, dept warns Sarawakians," The Malaysian Star, July 18, 2002.

138 See Human Rights Watch, "Living in Limbo," 2000, pp.49-50. Between August 1999 and April or May 1990 there were only two UNHCR officers doing refugee status determinations in Kuala Lumpur. As of July 2000, there was only one officer, so appeals were sent for review to Jakarta.

139 Where UNHCR is made aware of such an arrest, it has generally been able to intervene promptly to secure the person's release, and UNHCR emphasizes that many asylum seekers do approach the office without being detained or hindered in any way. Circumstances have also improved since the intercepted refugees were in transit through Malaysia during 1999-2001. UNHCR letter to Human Rights Watch, received November 20, 2002.

140 Human Rights Watch interview, No. 29, Mataram, Indonesia, April 18, 2002.

141 See Human Rights Watch, "Living in Limbo," 2000, p.49. Note that the total number of cases resettled from Malaysia during the first nine months of 2001 was seventy-one. See UNHCR Global Refugee Trends, Table 11.

142 Human Rights Watch interview, No. 2, Jakarta, Indonesia, April 9, 2002.

143 This was credible testimony since it came from an illiterate Afghan woman from a rural village, who put herself entirely into the hands of the smugglers. Human Rights Watch interview, No.17, Mataram, Indonesia, April 15, 2002.

144 Indonesian Immigration Act No.9/1992, Sections 8 & 24 define who is permitted and refused lawful entry to Indonesia and clearly make no provision for a protection visa or any other form of international asylum.

145 Indonesian Immigration Act No.9/1992, Sections 1 (15) & (16), & Section 44.

146 The Australian Senate Select Committee on A Certain Maritime Incident has recently recommended that "a full independent inquiry into the disruption activity that occurred prior to the departure from Indonesia of refugee vessels be undertaken..." Australia Senate Select Committee, Report on a Certain Maritime Incident, October 2002 (Henceforth: CMI Report), p.xx. The Australian officer's activities described here were presumably some part of that disruption operation.

147 Human Rights Watch interview No.2, Jakarta, Indonesia, April 9, 2002, and independently confirmed by Human Rights Watch interview No.3, Jakarta, Indonesia, April 9, 2002 and Human Rights Watch interview No.7, Cisawa, Indonesia, April 11, 2002.

148 The refugees were able to identify the IOM staff member in Jakarta whom they met in the prison, but asked for the name to be withheld because IOM was still involved with arranging their resettlement to other countries.

149 Human Rights Watch interview No.5, Cisawa, Indonesia, April 10, 2002.

150 Human Rights Watch interview No.5, Cisawa, Indonesia, April 10, 2002.

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

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

153 Human Rights Watch interview, No. 26, Mataram, Indonesia, April 17, 2002.

154 Human Rights Watch interview, No. 12, Jakarta, Indonesia, April 12, 2002.

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

156 Human Rights Watch interview, No. 8, Cisawa, Indonesia, April 11, 2002.

157 Human Rights Watch interview, No. 16, Mataram, Indonesia, April 15, 2002.

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

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