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VII. MEASURES USED BY AUSTRALIA TO DETER "UNINVITED" REFUGEES
Introduction: deterrents and penalties
Deterrents
The use of detention as a deterrent is not permitted by the UNHCR Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers,162 nor by Excom Conclusion No. 44.163 Therefore the Department of Immigration (DIMIA) has recently become circumspect, referring instead to "disincentives" which should only "encourage people to apply at the earliest possible stage" - that is, through Australia's overseas resettlement programs.164 Penalties
Whereas some governments contend that the term "penalties" refers only to criminal sanctions, such as prosecution, fine or imprisonment, UNHCR's Division of International Protection defines the term as "any unnecessary limitation to the full enjoyment of rights granted to refugees under international refugee law."166 By this UNHCR interpretation, several of these so-called disincentives imposed by Australia do amount to codified penalties, though the Australian government would disagree: "It's not about punishment of the individual. That's a complete misrepresentation," DIMIA told Human Rights Watch.167 The terms "coming directly" and "good cause" in Article 31 define who may and may not be penalized. UNHCR168 and most states accept that "coming directly" may involve transit through other countries, so long as the time spent there was no longer than the time required for mere transit and so long as those other states were unwilling or unable to provide asylum to the refugee.169 The phrase "coming directly" should never be interpreted in relation to a set time period spent in transit but should be understood as referring to the general urgency with which individual refugees move onward as soon as they become imperiled at any stage of their exile. The primary purpose of Article 31 is to prevent the imposition of penalties, not to prohibit secondary movement.170 Interceptions at sea
International maritime law obliges ships' masters to rescue all distressed individuals they encounter at sea.173 Persons rescued by a private vessel are typically taken to its next port of call, where any asylum seekers are supposed to have access to fair and efficient refugee status determination procedures and to be protected against refoulement.174 When a state's agents perform the interception,175 that state's protection obligations are invoked because the obligation of non-refoulement applies just as it would when those wishing to seek asylum enter a state's territorial waters.176 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, may constitute "rejection at the frontier."177 Numerous UNHCR Executive Committee Conclusions condemn that practice.178 Moreover, "the identification and subsequent processing of asylum-seekers is an activity most appropriately carried out on dry land," as access to translators, attorneys and appeal mechanisms is limited on board vessels.179 UNHCR Excom Conclusion No.30 further 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." 180 Two Indonesian boats, "suspected illegal entry vessels" - "SIEV 5" and "SIEV 7," were intercepted and boarded by the Australian navy in October 2001, then escorted into Australian territorial waters and held in the lagoon at Ashmore Island for nearly seven days.181 Both boats and their asylum-seeking passengers were subsequently returned to Indonesian waters, using force and deception. Human Rights Watch interviewed passengers from each of these boats to document whether the asylum seekers' rights were respected during the interceptions.182 Unnecessary use of force aboard "SIEV 5"
After these seven days of detention, the family groups from SIEV 5 were transferred to the HMAS Warramunga, an Australian navy ship, which then escorted the fishing boat containing the single men back toward the Indonesian island of Roti. The asylum seekers told Human Rights Watch that the single men were detained in the lower cabin of the fishing boat for two days, in excessively cramped conditions and without adequate ventilation.184 The families who were on HMAS Warramunga, meanwhile, told Human Rights Watch how they were forcibly put back on the fishing vessel after the Australians had taken them to the edge of Indonesian waters. Upon hearing the announcement that they had been returned, there was hysterical grief on the part of the asylum seekers, at which point Australian soldiers wearing helmets and carrying batons rushed into the families (some sixty or seventy people including young children and babies) where they stood in the penned area on the deck of the navy ship. "One man in the front row said: `You can kill us, but we cannot go back.' He was beaten until he was unconscious." The soldiers grabbed each person by both arms and forced them from the ship into the speedboat, which would take them back to their fishing boat.185 Human Rights Watch also interviewed the wife of this beaten man, a Tajik refugee from Afghanistan named Aziza. She described the scene in greater detail: "We tried to put our babies at the soldier's feet and begged them to have mercy on the children: `Where are the rights of the children?' I asked in Persian, and a man translated that question for me." When they saw that their pleas were having no effect, her husband moved forward to try to pick up his child, but his sudden movement alarmed the soldiers, who pinned him down on his back on the floor. The baby was left clinging to his chest.
Aziza told Human Rights Watch that two Australian soldiers also attacked her at this point, each striking her once with electric batons on both sides of her body, under her arms. This made her collapse and let go of the baby. They then picked up the baby and "threw" it down into the speedboat, and then "like a dead body, they threw me down too. I fell on top of my baby. The baby was not injured, but I was badly bruised on my arms and legs. Where they had hit me, there were bruises that felt hot. The pain from those strokes got worse a little later, and I continued to feel pain in those spots for nearly a month afterwards."186 In view of the limited threat posed by the unarmed refugees, particularly the women and children, Human Rights Watch concludes that they were subjected to disproportionate use of force.187 Finally, the SIEV 5 passengers claim that the Australian navy left them unescorted, drifting on the high seas just beyond Indonesia waters in a barely seaworthy vessel, so that when the engine broke down several hours later, they were helpless. One refugee who was a mechanic and electrician opened the engine cover and unsuccessfully tried to hotwire the engine. He estimates that when intercepted by the Australians they had had as much as 600-700 liters of oil left, but the Australians confiscated their oil reserves so that they would only have enough to go in one direction, toward Indonesia.188 Inhuman conditions of detention aboard "SIEV 7"
At one point, after about four days, a number of the men detained on the fishing vessel jumped into the water. The reasons asylum seekers gave Human Rights Watch for doing so varied from a desire to wash and cool their skin, to an attempt to swim to land or to drown themselves in despair. The Australians fished them out one by one, the asylum seekers told Human Rights Watch, and beat them as punishment. They allege that they were later beaten again to subdue their protests when they were told that they were being taken back to Indonesian waters. A young man from Afghanistan, traveling with his brother and crippled sister, recalls seeing that one of the Iraqi swimmers was struck once and so cut above his eye with an "iron stick."193 One Iranian was kicked and punched many times by an Australian officer.194 These beatings took place on the fishing boat, within sight of other asylum seekers who told Human Rights Watch: "We shouted, but could do nothing."195 As with SIEV 5, the family groups from SIEV 7, some ninety people in all, were transferred on Saturday October 28 onto the Australian naval ship, the HMAS Arunta, for return to Indonesia. Meanwhile the remaining single male asylum seekers remained on board the fishing vessel as the Arunta escorted it back to Indonesian waters. As with those who were disembarked from HMAS Warramunga, the families who were on HMAS Arunta were handled with disproportionate force when disembarked. A Hazara widow with a baby explained to Human Rights Watch that she witnessed another woman who resisting being beaten until she fainted. This woman was then thrown "like a dead body" down to the speedboat. They took her own baby from her and "threw it over the side, into the speedboat. I was afraid that, because the two boats were rocking on the waves, my baby would fall into the gap between them. When I was thrown down by my arms, at first I could not find my baby and panicked..."196 One woman who was epileptic had also passed out and was thrown back on the fishing boat while still unconscious.197 The approximately 160 single men had been confined to the lower cabin for over forty-eight hours, in excessively cramped conditions and without adequate ventilation. "They told us to go down there just for a few minutes, because they wanted to tell us something. We were sitting with our legs wrapped together and some had to stand. Then about forty commandos came on board and took over the top part of the boat. They pulled up the wooden ladder which went down into the box." Asylum seekers told Human Rights Watch that every three to five minutes someone passed out from the heat and smoke and had to be lifted up onto the deck to have water thrown on their face to revive them, then were quickly returned to the hull. Each person was only allowed to go up to the toilet once every twenty-four hours. They were resigned to these conditions, believing that they were being taken to Australia, but in fact the Australian navy, with army units on board, was returning them to the edge of Indonesian waters. The men said to Human Rights Watch that they were kept in the lower cabin so that they could not see the direction of the sun and tell North from South. When they were told that they had been returned, "It was like thunder in a dark place."198 The asylum seekers claim capsicum spray was used to subdue them after they learned of their fate. The spray, combined with their conjunctivitis, had a devastating effect on their vision. "There were some hysterical cases and the Australians misinterpreted this as violence. They thought they were going to hit them or something, but it was very normal for someone to be hysterical in that situation."199 Another asylum seeker named Faizan was in that cabin until he lost consciousness on the second day and had to be taken up on deck. Before being taken out, he recalls seeing others who had tried to crawl up the hatch being beaten down and claims that an Australian soldier struck him with an electric baton once on his upper right arm and once in the middle of his lower back. "I was a relatively healthy man, but I blacked out after being struck only once or twice. It felt like having your finger in a socket. It made my body jump." He said to Human Rights Watch that some ten men were hit with some other sort of stick as they tried to climb up. The Australian officers also tried to control the situation by throwing buckets of salt water and spraying one large fire extinguisher of foam down the hatch. Faizan was at the front of the group, near the hatch, so he saw all this clearly.
On the other hand, he remembers seeing two Australians cry. "I asked them why they were crying, and they said, `We are also human, but we can't do anything because these are orders from our superiors. If it were possible I would take you back to my own home...'" Faizan does not know the names of these men, who spoke with him through the hatch for only a minute or two.200 The passengers of SIEV 7, like those of SIEV 5, allege that their vessel was too poorly repaired to be left by the Australian navy unescorted in the open seas: "They left the boat in a wrecked condition. The high waves from behind their speedboats as they went away almost capsized us. They did not even leave us a compass." Even if the vessel were perfectly seaworthy, the excessive passenger load (over two hundred persons on a vessel built to carry no more than sixty at most) would qualify it as a vessel "in distress," as defined under international maritime law.201 Evidence has since emerged that throughout these operations there was intense pressure from the Australian government Ministers on the Royal Australian Navy to keep asylum seekers on "marginally seaworthy" vessels that were at risk of sinking.202 An Iraqi asylum seeker from SIEV 7 told Human Rights Watch that, on departing, the Australians shouted, "If you ever come back, we will fire on you!" and this convinced the majority of the refugees to vote to go back toward Indonesia rather than try to find another way to Australia. They traveled for fifteen or sixteen hours, and the engine lasted until they were within about 400 meters of land, which they later learned was the Indonesian island of Roti. It was the middle of the night, around 3:00 a.m., and the water was rising inside the boat. The Indonesian crew was the first to dive into the water and swim to shore, followed by those refugees who could swim. They feared that the boat would be washed further out to sea if they waited. Those who could swim went back and forth in the darkness, carrying babies and children on their heads. Finally everyone jumped off and waded, in water up to their necks, to the shore. One of the mothers on this boat remembers occasionally slipping as she waded with her baby balanced on her head so that they both went under water for a few seconds. "The Australians did not care whether we would make it safely back to Indonesia," she concludes.203 It is not certain that everyone made it back safely that night. Three passengers remain unaccounted for by the other refugees.204 The difficulty of verifying their fate only underlines the fact that Australia made no formal arrangements with Indonesia for safe reception of these asylum seekers, but relied on casual notification and tacit acceptance - a practice far removed from the legal standards for "safe third country"205 returns contained in the Australian Migration Act206 or in Europe's Dublin Convention.207 In October-December 2001 the Indonesian authorities were, as DIMIA puts it, merely "advised that four boats were returned. What then happened in terms of reception arrangements is really a matter for the Indonesian government, but we certainly did take steps to let them know."208 Denial of allegations by Australian government
Defence Ministry officials do admit, however, that the people were moved and confined broadly as described above, that metal batons and capsicum spray were used to subdue the asylum seekers, and that they left the vessels as overloaded as when they found them. The actions of the Australian officials during these interceptions, in the view of the Australian government, were fully in accordance with the September 2001 legislation. Section 5 of the Border Protection Act (2001) introduced increased powers of restraint of liberty, search and forcible movement at sea. The Australian Ministry for Defence claims that the force used on SIEVs 5 and 7 was "reasonable," within the meaning of the Australian Migration Act and international law, because there was a high degree of provocation, such as the asylum seekers threatening to disable the engine or to set themselves on fire using engine fuel.212 A senior naval officer has concluded, however, that the behavior of the asylum seekers was directly related to the change in Australian government policy in relation to SIEV 5, the first boat to be summarily sent back to Indonesia.213 Conclusion
Ashmore Island, beside which the two boats were held, was one of the territories "excised" from Australia's "migration zone"216 in September 2001. This legal fiction of "excised" territory, however, as DIMIA acknowledges, does not obviate the application of the Refugee Convention or other international human rights instruments.217 When asylum seekers are within Australian territorial waters or on board an Australian warship, Australia's obligation to protect refugees is invoked.218 What this means, in practice, is that Australia is obliged to ensure that no such refugees are refouled by any other state or agency. This would include any rejected asylum seekers who may fall under the protection of Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.219 Furthermore, Australia is obliged not to send refugees to places where they will be denied effective protection, in the sense of threats to their life or freedom, until such a time that they cease to be refugees, though there is no obligation for Australia to provide that protection in Australia rather than in another country. Australia's obligations under the Convention on the Rights of the Child (CRC)220 were also triggered in respect to those on board these vessels that entered Australian territory. The government was therefore obligated to ensure that children on the SIEVs seeking asylum received appropriate protection and humanitarian assistance,221 that they were protected from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment,222 and that the "best interests of the child" were a primary consideration in any action taken affecting a child on board - including that child's return to the high seas or to Indonesian waters.223 There is no evidence that Australia considered such "best interests." The children on board were exposed to physical and mental violence, neglect and negligence, and were not assisted to seek protection or even to reach a place of safety. International law, namely the International Covenant on Civil and Political Rights224, the Convention Against Torture and the Convention on the Rights of the Child, should have protected those on board intercepted boats such as SIEV 5 and SIEV 7 from "cruel, inhuman and degrading treatment."225 The conditions in which the asylum seekers were allegedly detained226 - preventing their disembarkation onto dry land where they could find shelter, failing to provide adequate food, water and medication, and holding them in an overcrowded space below deck without sufficient ventilation or sanitation or space to move their limbs - would all constitute violations of this right, as would any unnecessary use of force when disembarking families, women and children from the warships.227 A far stricter standard of "reasonable force" should apply with regard to children. The denial of a medical evacuation to Agha's wife, a bleeding woman who had just given birth on SIEV 5, may also have violated Australia's obligation under international maritime law to provide "initial medical assistance, or medical evacuation, through the use of public and private resources," as stated in the legal definition of any "search and rescue service."228 Section 7 of the Border Protection Act (2001) granted any person who acted on behalf of the Australian government, in relation to the powers defined in Section 5 of that Act, immunity from prosecution for any actions taken after August 27, 2001, which was a full month before the legislation was passed. So long as actions fall within the scope of Section 5, there is no domestic remedy available and no judicial scrutiny.229 This provision has been criticized by the Australian Senate Scrutiny Committee, which says that such unfettered powers raise serious concerns about the abrogation of the rule of law.230 As with the "excision" of territory, this piece of legislation granting ex post facto immunity cannot relieve Australia of its obligations under international law. Return of asylum seekers to Indonesia
Lack of "effective protection" following return
In the absence of any readmission agreement, Australia cannot count on Indonesia to offer protection. Indonesia is not a party to the Refugee Convention and has no national asylum legislation. At most, it is bound by the principle of non-refoulement that is now part of customary international law. Indonesia unequivocally refuses to grant any legal status that would facilitate the local integration of refugees. Nor is it a state capable of guaranteeing informal refuge for any sustained period, because of intense pressures on its own resources and its own uneven record regarding the rule of law. The provision of temporary refuge in Indonesia is therefore entirely dependent upon UNHCR and IOM, organizations which do not have the same legal accountability as a sovereign state and which rely upon cooperation from Indonesian authorities at their discretion. Temporary refuge also depends resettlement of all refugees to other countries, as in Jordan or Syria. Because asylum has no basis in Indonesia's domestic legislation and would collapse without UNHCR, Indonesia cannot be considered to offer effective protection. It was only on September 30, 2002, almost a full year after the forced returns by Australia, that the Indonesian Immigration Directorate General issued a directive on "Procedures Regarding Aliens Expressing their Wish to Seek Asylum or Refugee Status" which incorporates the principle of non-refoulement and guarantees respect for UNHCR-issued documentation. The Australian government has listed the reasons why it believes that return to Indonesia does not constitute a risk of even "chain refoulement," that is, indirect refoulement. Three of its stated reasons rely upon the presence of UNHCR and IOM, and the fourth reason is the lack of previously documented cases of Indonesia's refouling refugees from these particular nations.233 However, there have been a number of protection failures in Indonesia stemming from the precarious position of the Middle Eastern and Afghan asylum seekers and refugees there and the government's policy of housing them in remote locations. Such incidents demonstrate that the presence of IOM and UNHCR in Indonesia does not guarantee that the Indonesian authorities, especially local authorities, are willing or able provide effective protection. In March 2000, a group of Indonesian men came to an "immigration center" in Selong and attacked the Iraqi and Afghan asylum seekers there, first beating the men with swords and sticks and later attacking some of the women and children. There had been many warning signs of tension between the asylum seekers and local community, which UNHCR had done its best to dispel. The next day the chief of the local police visited the refugees and left the impression that he had turned a blind eye to the attack, or even encouraged it. Using one Iraqi asylum-seeker as an interpreter, he told the victims: "This was done to teach you a lesson. This was the first lesson. The second lesson will be your deaths." One of the refugees present during the attack, a man named Mahmoud, called UNHCR and IOM to report the attack and a few days later UNHCR staff flew in from Jakarta.234 A series of emergency meetings were held with the local authorities and with IOM, and a UNHCR representative assured the asylum seekers that she had had a guarantee from the Ministry of Defense that there would be no more attacks. "They [UNHCR] did their best, but the problem in this country is corruption, so there is limited protection for us in the countryside," Mahmoud commented.235 Another serious lapse in protection occurred at the same "immigration center" soon after the March 2000 attack. The same local chief of police gathered all the asylum seekers in the center's main hall and locked the doors. He then entered with an Iraqi diplomat,236 along with a representative of the Indonesian Ministry of Foreign Affairs and four other unidentified men in suits. When some of the refugees saw the Iraqi consul they were afraid and tried to leave the hall, but were prevented from doing so. The consul told the refugees, "You have to return back to Iraq. You don't need any guarantee of your safety." Meanwhile one of the men in suits kept taking flash photographs of the refugees' faces, ignoring their loud pleas for him to stop. The Iraqi consul translated the conversation into English for the Indonesians and when one English-speaking Iraqi refugee overheard him saying that most of the refugees were common criminals who left to evade the laws of Iraq, he interrupted to object. The Iraqi consul then turned on him and addressed him threateningly by his full name.237 This incident created a large number of sur place claims, 238 which UNHCR recognized.239 In a third incident, on April 20-21, 2002, an Indonesian mob attacked 146 Afghan and Iraqi refugees and asylum seekers living in Cisawa, a town about an hour and a half from Jakarta. Some thousand people occupied the main street and set fire to hotels where asylum seekers were accommodated by IOM. When the local police intervened, the mob attacked the police station and vehicles, forcing the police to retreat. According to the refugees, the mob was made up of a fundamentalist/militant Islamic group along with others who had been angered by the presence of Saudi Arabian sex tourists in the area. The mob made no distinction between the tourists and the resident refugees, indiscriminately attacking all people of vaguely Arab appearance, including Afghans. Resentment of the assistance provided to the refugees by UNHCR and IOM may also have motivated the attackers, as it was reported that the mob stole money from their rooms in the Serinjana Hotel as they rampaged through, smashing windows, televisions, and other possessions. After the police failed to restore order, the refugees had to lock themselves into their homes and hotels and arm themselves with sticks. Others, including families with young children, fled into the fields and jungle to hide overnight. The attacks continued the following day, although no one was seriously injured. IOM promised one refugee leader that they would arrange for extra police to be sent to Cisawa, but when refugees emerged from their rooms at midnight on April 21, no police nor hotel staff were on guard and the front gate was wide open. A week earlier, one refugee woman, living alone with her four children in Cisawa, had reported to IOM the stabbing of a Saudi tourist in the courtyard of her hotel, but IOM had done nothing to allay her fears and UNHCR had not offered to re-house her someplace safer.240 Similarly, after the attacks, UNHCR dismissed the attack with the comment that single males among the asylum seekers in Cisawa had provoked the attack by making advances to Indonesian girls and married women, adding that the refugees were well enough protected "so long as they stayed within their hotel grounds and behaved themselves."241 The attacks in Cisawa point up Indonesia's own internal security problems and the potential for ethnic and religious violence, which Australia's interception and return policy only exacerbates. In July 2002, the refugees in Jakarta reported to Human Rights Watch that even in the capital they were suffering increased racial attacks by local Indonesians.242 IOM as Australia's agent in Indonesia
In May 1997 IOM and UNHCR signed a memorandum of understanding on joint cooperation with a focus on the return of rejected asylum seekers and "irregular migrants." Further work is required by both UNHCR and IOM to clarify their respective roles in circumstances where there are substantial numbers of people in need of protection among so-called "irregular migrants," including refugees who have made secondary movements in search of effective protection. The IOM program in Indonesia commenced in January-February 2000. Since then it has been contracted by Australia for the care and maintenance of 3,762 persons in Indonesia whom IOM call "irregular migrants" or "stranded transit migrants." Of these, 734 remained under IOM care, as of October 31, 2002, awaiting decisions from UNHCR as to whether they should be declared refugees.245 The rest have been recognized as refugees and resettled or are awaiting resettlement, or have been assisted to return to Afghanistan.246 When the Indonesian authorities identify or arrest an "irregular migrant," whether trying to transit toward Australia or returned after interception by Australia, they are supposed to notify IOM. IOM then arranges for their material assistance, pending deportation. Such persons must express an interest in seeing UNHCR or in seeking asylum before IOM notifies UNHCR about them. In practice, IOM concedes, nearly all "irregular migrants" of Middle Eastern or Afghan origin ask to seek asylum and are referred to UNHCR. Of 3,348 persons who have had files in UNHCR Jakarta's Protection Unit, as of March 31, 2002, 41 percent have been Afghan, 46 percent Iraqi, and 6.5 percent Iranian. Despite the fact that all such "irregular migrants" end up seeking asylum, IOM does not accept that these individuals were compelled to make secondary movements or that therefore its own role as their first point of contact is inappropriate. Many of the people assisted by IOM have no real idea of the organization's role or how to lodge grievances about its actions or the levels of assistance it supplies. One Iraqi asylum seeker told Human Rights Watch that he guessed IOM was a humanitarian non-governmental organization funded by private donations from concerned western citizens, and as such he was very grateful for this charity.247 IOM Jakarta's Chief of Mission, meanwhile, explained to Human Rights Watch that IOM is "not, strictly speaking, a humanitarian organization." IOM's operations in Indonesia are almost wholly funded by Australia, an estimated US$250,000 per month, of which some 80 percent is spent on direct assistance.248 When asked whether any conflict of interest ever arises between the humanitarian components of the program and Australia's plainly deterrent purpose, IOM stated that no funding is "ever completely disinterested" but categorically denied that the program in Indonesia is overly influenced by Australian policy: "We are a very practical organization, providing services to both migrants and Member States. Australia is benefiting from the program but we are not facilitating their policy. That is not our prime objective."249 IOM Headquarters emphasizes that the program was instituted at the joint request of both the Australian and Indonesian governments, though Indonesia is not a member state of IOM. This was done supposedly because both governments were "concerned about conditions of detention in Indonesia."250 This motivation seems at odds with the program's original title - "The Interception Program" - but the fact remains that asylum seekers and migrants are much better accommodated and assisted by IOM in hotels than if they were held in Indonesian police prisons or "quarantine centers," as many were while in transit during the 2000-early 2001 period. UNHCR told Human Rights Watch that it declined to play the lead role in caring for asylum seekers stranded in Indonesia, out of principled objections to Australia's interception policy.251 IOM then stepped in. IOM Headquarters denies that it has a "lead role" at all, but claims it has a symbiotic relationship with UNHCR, which still has the lead on protection of asylum seekers. Traditionally, IOM has concentrated on the return of rejected asylum seekers, a role that is usually less problematic in terms of IOM's lack of protection mandate.252 It has rarely been so fully involved with asylum seekers prior to status determination as it is in the Indonesian and Pacific programs currently funded by Australia. If reports are reliable that there are no new arrivals from the Middle East or South Asia to Indonesia, and if UNHCR soon finishes determining the status of all asylum seekers, then IOM's role will revert to its traditional one of assisting rejected cases. For those who cannot return to their countries, however, there may be no solution apart from long-term dependency on IOM assistance in Indonesia. Concerns regarding IOM assistance
IOM admitted that it was "struggling with" defining which medical conditions it should and should not treat. It stated that it currently aims to treat acute as well as emergency cases, but Human Rights Watch found examples where this was not the case: a woman who had had a baby and suffered from severe uterine bleeding afterwards remained untreated months later, an elderly woman who slipped on the bathroom floor and paralyzed one arm who was denied access to a doctor, as was an unaccompanied Pashtun boy who believed that his nose had been deliberately broken by Hazaras living in his accommodation. Nearly every asylum seeker complained about receiving no treatment for chronic, if minor, ailments such as heat rashes and rheumatism. IOM Jakarta was quick to respond to the more serious individual cases of medical neglect when they were brought to its attention by Human Rights Watch, and said that it planned in future to post an international representative permanently near to where these asylum seekers lived in Lombok. As of November 2002, IOM employed four full-time and two part-time doctors in Indonesia and stated that it was "extremely concerned" to ensure the health of those under its care.254 At the time of Human Rights Watch's research in April 2002, neither Indonesia nor IOM provided education for child asylum seekers, though this is their human right.255 A single mother complained, "There is no school for my children here, no support except the food from IOM, and no contact with anyone overseas - either back in Afghanistan or my husband in Australia."0 Asylum seekers in Mataram have self-organized some English and other classes for both adults and children, and at the time of writing IOM reported that it had received permission from the Indonesian government to provide schooling to the children under its care.1 As of October 31, 2002, of the 325 child asylum seekers and refugees in Indonesia, 157 received only IOM assistance.2 Asylum seekers are told by IOM that they will receive no further assistance if they leave the IOM centers in outlying areas for Jakarta. IOM tells Human Rights Watch that this policy is based on the fact that asylum seekers may not change their place of residence without authority from the Indonesian immigration officials, police and local authorities.. 3
Many other witnesses verified the substandard conditions in the facility in Kupang, five barracks each holding thirty-five or forty people, with just three bathrooms and a shortage of clean water. They confirmed that when they tried to talk to IOM, they were ignored. One Pashtun man emphasized to Human Rights Watch that the conditions were especially difficult because they were all suffering from shock after the Australian interception: "We were all mentally traumatized at that time, but we were only given enough to sustain human life - no more."6 Other men recalled that they were given nothing to sleep on but flattened cardboard boxes, near a pile of rubbish swarming with flies, that there was nowhere private for anybody to wash, and that the food was inedible. "IOM was no assistance. They never gave us hope that we would be moved to another place, and only asked if we wanted to go back to Iran. Since we were afraid of the punishment for leaving Iran illegally, of course we said no." Eventually, after obtaining authorization from the local authorities, IOM moved the asylum seekers to Mataram, where conditions are physically, if not legally, much improved.7 Over-emphasis on return
The failure to assist asylum seekers and refugees in Indonesia to trace their families also placed many of them under undue pressure to return to Afghanistan prematurely. Many refugees and asylum seekers in Mataram claimed that they had repeatedly tried through IOM to contact the International Committee of the Red Cross (ICRC), the agency primarily responsible for assisting with family tracing, or had asked for help finding out what happened to their families, but they received no assistance. Without such assistance, the sense of being honor-bound to look for their families may govern their decisions to return, even when they continue to fear persecution. One Hazara asylum seeker named Rashad, for example, reported that he had told IOM he wanted to return voluntarily only because he felt he had no choice: "Many times I have begged UNHCR and IOM to help me find my family. They said `We will contact ICRC and they will help you' but I have never heard anything from ICRC. Lately IOM has started to answer that it is not their responsibility." In his asylum interview in January, he again mentioned his need for family tracing services to UNHCR but received no help or word from them since.9 One unaccompanied boy was particularly distressed not to have heard from his family since the U.S.-led action in Afghanistan and upset not to have received any response from IOM after repeated pleas for help in contacting ICRC.10 Article 22(2) of the Convention on the Rights of the Child obliges state parties, which include Indonesia and Australia, to co-operate with efforts "to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family." IOM told Human Rights Watch that there had been very few family tracing requests from Afghans or Iraqis in Indonesia "probably as most of the people there have the means to e-mail or telephone their families."11 Breakdown in communication with asylum seekers
Refugees awaiting resettlement were particularly distressed because delays in issuing visas caused by additional post-September 11 security checks had not been properly explained to them, and because they felt that they were regarded as trouble-makers if they asked questions.13 Several refugees awaiting resettlement told Human Rights Watch that they were afraid to discuss their treatment by IOM while awaiting their asylum decision because they believed IOM still would have some control over the speed of their future resettlement. Other asylum seekers were not so reticent and complained vehemently about the assistance they were receiving, which they felt was set at a low level in order to push them to go home. While IOM Jakarta stated its intention to employ more psychologists and counselors to treat stress levels among asylum seekers and refugees, and while it acknowledged that some of its local staff were "too quick to run away" when discussions got difficult, it did not appreciate the extent to which stress among the asylum seekers was caused by IOM's own failures to respond and to keep the beneficiaries of their assistance fully and frankly informed. Role of UNHCR
UNHCR provides a vital service so long as the Indonesian authorities respect the registration documents issued to asylum seekers and refugees, protecting those who hold them from arrest and deportation. UNHCR gives recognized refugees a letter of attestation valid for six months at a time, which is also used to claim a cash allowance and medical treatment for emergency or acute conditions from the Indonesian Red Cross. Bangun Mitra Sejati (BMS), an Indonesian development organization employed by UNHCR as an implementing partner,15 also provides the refugees with client cards that they use to register for services such as vocational training. When IOM brings asylum seekers to the attention of UNHCR, the agency makes arrangements for an asylum interview and subsequently determines whether or not they should be recognized as refugees. Given Indonesian policy hostile to refugee integration, UNHCR must refer the cases of those recognized as refugees to a resettlement country and assist with that selection process. While waiting for resettlement, refugees receive a monthly subsistence allowance of US$60 per head of household, or US$100 per adult couple. This is the exact amount that a refugee would receive from UNHCR in Syria and equivalent to twice the wage of an average Indonesian laborer. The allowance is distributed by BMS and must be used to cover all costs, including rent, which can be difficult when the locals charge refugees inflated prices as if they were tourists. UNHCR plays its part in deterring secondary movers by denying the allowance, for the first six months, to asylum seekers who come to Indonesia to join recognized refugee family members. UNHCR claims that exceptions to this policy are made for refugees with children, but Human Rights Watch met at least two families with young children who were supporting themselves entirely on the father's US$60.16 UNHCR's presence in Indonesia is cited by Australia in claiming that Indonesia provides effective protection, but UNHCR's presence is an insufficient substitute for state protection. Since the agency continually reiterates the primacy of state responsibility for refugee protection,17 UNHCR should publicly correct the misrepresentation of its mandated operations for Australia's deterrent purposes. Australia funds all UNHCR's status determination costs in Indonesia, though not the material assistance provided to the recognized refugees. Like IOM, UNHCR categorically asserts that the earmarked funds from Australia in no way affect their operations. The agency is proud of the principled stand they took not to be the "lead agency" with regard to reception of asylum seekers returned by Australia: "It's not our mandate to fight people-smuggling," one UNHCR spokesman told Human Rights Watch.18 Concerns regarding UNHCR determinations and protection
Where UNHCR is responsible for status determinations, it should adhere to and provide a model for implementation of the guidelines and procedures to which it holds governments accountable, specifically the Handbook on Procedures and Criteria for Determining the Status of Refugees22 and its Training Module on Interviewing Applicants for Refugee Status.23 On several occasions UNHCR's Executive Committee has reiterated the importance of guaranteeing the efficiency and fairness of status determination procedures24 and new procedural standards for UNHCR refugee status determination operations are at an advanced stage of development. Yet UNHCR procedures in Indonesia, as in many other countries where they operate in place of state decision-makers, lack several important safeguards of due process.25 They fail to provide asylum seekers with a transparent set of criteria for the assessment of claims. All asylum seekers interviewed in Indonesia said that they did not know what standard of proof was required for their claim to be considered as credible.26 While one Hazara asylum seeker was entirely satisfied with his two-hour interview and felt that UNHCR had understood his claim was non-Taliban-based, another Hazara alleged that his interview with UNHCR in January 2002 lasted only ten minutes and was "too basic - not in depth." He asked Human Rights Watch, "I don't know if the U.N. will make a decision according to human rights as they are supposed to. Who will check that they do this? Can you check?" Apart from human rights, he did not know the criteria for the UNHCR's determination: "According to what do they make their decision? Do you think they will believe CNN more than me?"27 UNHCR advises states deciding on asylum claims that access to legal counsel is a basic principle of fairness, especially in any appeal or administrative review process, yet it claims that such advisers are unnecessary to help asylum seekers prepare for their UNHCR interview because it is not supposed to be an adversarial process: "There can be no comparison between governments undertaking refugee status determination and UNHCR doing so."28 Nearly every asylum seeker interviewed by Human Rights Watch in Indonesia, however, stated that they felt the process to be adversarial and experienced the interview as an interrogation. One Pashtun asylum seeker worried about the fact that in his first UNHCR interview he had argued with the Tajik interpreter, who seemed not to believe that there were Shi'as in his province of Afghanistan. The second interview went better, but he felt it was definitely adversarial: "Our minds are not computers. If we make a small mistake they catch it and reject us. We forget things because of how long they make us wait."29 More reasonably, UNHCR argues that it lacks the resource to facilitate access to legal advice in all the diverse situations where it conducts refugee status determinations and that internal procedural standards are a more feasible means of guaranteeing due process rights. Human Rights Watch believes, however, that this evidence of UNHCR's severe under-funding should be acknowledged as the serious inadequacy it is, if only to remind certain asylum states such as Australia that asylum seekers should not be returned from well-resourced national determination procedures to places where they are reliant on UNHCR's procedures. It is also particularly vital that asylum seekers in Indonesia have access to independent sources of reliable country of origin information. Having come from a third country rather than directly from, say, Afghanistan may mean that they have not lived in their home country for years, so, when called upon to substantiate a credible claim based on conditions since the fall of the Taliban, they may be unaware of what persecution they would currently risk if returned. Those rejected have no independent appeal. Another UNHCR officer from the same office reviews the decision, and if necessary a second interview may be conducted. In support of these limited appeal arrangements, which primarily result from the serious resource constraints on UNHCR, the UNHCR Handbook speaks merely of the right to appeal "to the same or to a different authority."30 Human Rights Watch believes that there should be the possibility of an appeal and, if necessary a second appeal based on the case file, to an independent body. In view of the more substantive appeal procedure that rejected asylum seekers may have access to in Australia,31 being intercepted and sent back to the UNHCR procedure in Indonesia deprives them of their due process rights. This deprivation may substantially reduce a genuine refugee's chances of being recognized, especially when it is combined with the total absence of independent advice. Communication with refugees
UNHCR has elsewhere observed that "irregular movers" are "often among the most vehement of protestors"35 and has developed internal guidance for its own staff about deflecting or avoiding such protests. Even though UNHCR Jakarta states that it does not consider the intercepted cases to be "irregular movers," but asylum seekers like any others,36 there seems to be a similar defensiveness toward these urban refugees. This in turn can become a vicious circle, compromising UNHCR's ability to listen and respond to the legitimate anxieties of asylum seekers and refugees under its protection. Lack of durable solutions
Between January 2001 and October 2002, Australia had resettled 41 refugees39 out of a total of 389 refugees resettled via UNHCR from Indonesia. Most of the them went from Indonesia to other resettlement countries - sixty-five to New Zealand, 111 to Sweden, forty-eight to Norway, and seventy to Canada, which has a very comparable resettlement system in terms of numbers and resources to Australia.40 The Australian government's position is that by deliberately frustrating refugees from reaching their intended destination it is combating people-smugglers. Instead, the government is prolonging the suffering of refugees in need of protection and assistance. A southern Iraqi refugee still awaiting resettlement told of having to leave his wife and two young children behind in his brother's care when he fled. The youngest, now three, was a baby just a few months old at that time. He knows that even after resettlement, it may take years for him to be able to bring his family to join him. After three years waiting in the "queue" in Jakarta, he became emotional about further delays. He told Human Rights Watch that he faces the prospect of one day meeting a grown child who has never known him as a father and a wife who, he fears, will not remember him as her husband.41 At least thirty of those who drowned on board the ill-fated SIEV-X were refugees recognized by UNHCR who had decided they could not wait any longer for the resettlement process and its distant promise of family reunion. One Iraqi mother explained that she has had severe gynecological problems for six months which she could not get treated because the local Indonesian hospital would not let her see a female doctor, a necessity for a devout Muslim woman.42 The Iraqi mother who had to run into the jungle to escape the violent mob in Cisawa was also waiting for resettlement to join her husband in Australia.43 Since Australia's legal obligations under international human rights and refugee law were engaged when many of the asylum seekers entered Australian territorial waters, it follows that Australia should assist these refugees not only to "seek" but also to "enjoy" asylum after a certain period of time.44 Returns with signed consent
Human Rights Watch has expressed its view that the time is not yet ripe for "promoting" even voluntary returns to Afghanistan.46 One year after the fall of the Taliban, conditions inside Afghanistan remain extremely unstable and high risks of persecution exist for certain groups, such as the ethnic Pashtuns in the northern provinces of Farah and Faryab and western province of Herat. Those with connections to the former Taliban or Communist regimes are at particular risk. Furthermore, attacks on the Pashtuns may, it is feared, allow the Taliban or a similar group to rebuild a constituency that would later seek revenge on ethnic groups such as the Tajiks and Hazara. Human Rights Watch has also documented ongoing lawlessness and abuses throughout the south and west of the country, and cautions that it will be a long time before there are reliable constraints on the abuse of power. In most parts of the country, security has been entrusted to regional military commanders - warlords - many of whom have human rights records rivaling the worst commanders under the Taliban. In some areas of central Afghanistan, Tajiks and Hazaras are still locked in ethnic rivalry, which, at the local level, creates a high risk of persecution by non-state agents. There is no international security force outside Kabul. In these conditions, those returning to Afghanistan often find themselves unable to return to their homes and so enter a fresh cycle of internal displacement. IOM claims that around a third of 600 Afghan asylum seekers in Indonesia expressed a desire to repatriate after a visit by the Afghan Interim Authority's Refugee Minister in April 2002.47 His visit was an example of IOM, with Australia's backing, promoting rather than merely facilitating return, at a time when UNHCR was still warning against doing so because it would put too much strain on Afghanistan's fragile infrastructure and because risks of persecution continue to face numerous individuals. All IOM return costs are being paid by Australia, and A$30 million has been pledged by Australia over four years to help Indonesia remove its "stranded transit migrants."48 Australia appears willing to demonstrate a "special responsibility" towards those stranded in Indonesia when it comes to return, if not by granting asylum or resettlement. Conclusion
In general, if a penalty is "any unnecessary limitation to the full enjoyment of rights granted to refugees under international refugee law,"49 then being forcibly expelled from the territory of a signatory state to the Refugee Convention to a non-signatory state should be considered a penalty. Article 31 of the Refugee Convention implies that an individual will have an opportunity to rebut the presumption they have entered illegally without "good cause" before the imposition of any penalty. Asylum seekers were given no such opportunity before being intercepted and returned to Indonesia. Furthermore, by returning refugees who have entered its territorial waters to Indonesia, Australia has treated Indonesia as if it were a "safe third country," without establishing that is so. The only basis for doing so is that the Indonesian police, at present, agree not to arrest and deport asylum seekers so long as UNHCR and IOM process and assist them. This is not an adequate standard of effective protection. Prior to any transfer or return to a third country, all unauthorized arrivals should be given an opportunity to rebut the presumption of effective protection or "safety" in their own case, as well as a chance to appeal on the basis of family ties or other humanitarian circumstances. Safe third country returns should not be imposed on individual asylum seekers by naval officers during the interception of vessels at sea, where individual interviews were not conducted.50 In addition to the rights of children listed earlier in the context of interception,51 children deprived of their family environment are entitled to special protection and assistance,52 and state parties - in this case both Australia and Indonesia - are obliged to "to promote physical and psychological recovery of all those who are victims of torture or any other form of cruel, inhuman or degrading treatment of punishment."53 In this context, recovery should mean both a secure status and counseling services for those who were traumatized by events at every stage of their journey - including their treatment at the hands of the Australian navy. Furthermore, both Australia and Indonesia are obliged, under the Convention Against Discrimination in Education,54 which applies to "any person" in a country regardless of their immigration status, to provide these children of asylum seekers and rejected asylum seekers with access to education. Detention of asylum seekers in Pacific states
The basis for penalization and deterrence is the presumption that the persons in question could and should have found protection in another country. No asylum seeker was given the opportunity to rebut that presumption or explain their compelling reasons for secondary movement before being transferred to either Nauru or Papua New Guinea. Nature of arrangements
The first agreement to receive intercepted refugees between Australia and Nauru was due to expire after six months. It was converted into a Memorandum of Understanding58 which provides for no termination date and which will continue as long as both parties are satisfied with the arrangements. As Nauru is not a signatory of the Refugee Convention, the Memorandum states that "any asylum seekers awaiting determination of their status or those recognized as refugees, will not be returned by Nauru to a country in which they fear persecution, nor before a place of resettlement is identified." The Australian Department of Foreign Affairs (DFAT) explains that this Memorandum is binding, but less so than a bilateral treaty.59 Were Nauru to return refugees or asylum seekers to the Middle East or Afghanistan, however, Australia as well as Nauru would be responsible.60 Nauru, though not a signatory to the Refugee Convention, would be violating the customary international law prohibition against refoulement.61 On October 11, 2001, the Australian government announced that it had signed another Memorandum of Understanding, this time with Papua New Guinea, to take intercepted asylum seekers from Australia just as Nauru was doing.62 The arrangements with Papua New Guinea involved placing the asylum seekers on Manus Island, a remote equatorial and malarial island off its northeastern coast. While Papua New Guinea, unlike Nauru, is a party to the Refugee Convention, it has entered many reservations to that Convention63 and lacks any national refugee determination procedures or framework for protecting or settling refugees. The agreement with Papua New Guinea, also initially for six months,64 was subsequently extended until October 21, 2002, and has now been extended for another twelve months following intense diplomatic pressure on the newly elected government. Human Rights Watch has expressed its regret about the renewal of the agreement and reminded Papua New Guinea of its human rights obligations, which are violated by indefinite detention of asylum seekers, refugees and rejected asylum seekers.65 Papua New Guinea, a party to the Refugee Convention, would be in violation of its obligations under international law were any refugee to be refouled. To date there have been no reported cases of refoulement. The physical safety of the refugees is also guaranteed by Australia in the event that for example, a coup or other civil conflict were to erupt in Papua New Guinea, Australia reportedly has evacuation plans for the detainees.66 The facilities on Nauru and on Manus Island, Papua New Guinea, have a maximum combined capacity of 2200 persons. On the Pacific sites combined, 1496 persons sought asylum, of whom 721 were rejected and 735 recognized as refugees. The remainder included one person still waiting for an assessment and others who withdrew their claims and departed. By late October 2002, 871 people remained on Nauru and 102 on Manus Island. Overall, on Nauru67 and Manus Island,68 as of September 18, just 19 percent of Afghans were recognized as refugees, compared to 80.9 percent of Iraqis. The overall recognition rate as of November 10, 2002, was 49 percent.69 Role of IOM
IOM's liability as a contractor is complicated by the fact that it subcontracts with a number of companies and individuals. For example, the perimeter security is subcontracted, but the guards are prohibited from using force against the asylum seekers.70 They are supposedly there to keep people out and to regulate arrivals at the camp gates.71 In both camps, Australian Protective Services hold special constabular powers under the laws of Nauru and Papua New Guinea. Although primary liability for incidents within the centers would be dealt with under local law, the entire arrangement is funded and directed by the Australian government.72 The detainees themselves realize that IOM is not a humanitarian or refugee protection agency and have protested its running the facility. On Manus Island, shortly after arrival, detainees tied placards to the fence of the camp pleading to be dealt with by UNHCR instead of IOM.73 One of the refugees who was on board the Tampa described the debate among the asylum seekers on whether to cooperate with their transfer to New Zealand and Nauru when the Australian government refused them entry in early September 2001: "Many thought IOM cared first for its own lucrative business and at second of asylum seekers, perhaps because of a good name. Some who had experienced it in Indonesia told us [that] as we would go under IOM management we would be forgotten by others."74 IOM has told Human Rights Watch that it would not "do anything for any price,"75 and has acknowledged that human rights considerations should guide its operations.76 Nevertheless, although the IOM-run facilities in the Pacific are effectively detention centers and those detained include many persons in need of international protection who, as such, should only be detained in exceptional circumstances, IOM refuses to reconsider its involvement with this Australian deterrent program.77 Role of UNHCR
Role of DIMIA decision-makers
The circumvention of the Australian statutory framework, however, does not mean that Australia's human rights obligations can be evaded. A number of human rights standards, aside from the obligation of non-refoulement, apply to persons within a state's jurisdiction even while outside its territory, and Australian officials acting in Nauru and Papua New Guinea should uphold these standards.81 Export of arbitrary detention
As the European Court of Human Rights has noted, the distinction between detention and restrictions on freedom of movement is "merely one of degree or intensity, and not one of nature or substance."88 UNHCR defines detention as "confinement within a narrowly bounded or restricted location, including prisons, closed camps, detention facilities or airport transit zones, where freedom of movement is substantially curtailed, and where the only opportunity to leave this limited area is to leave the territory." While all "limitations on domicile and residency" may not amount to detention, UNHCR also suggests that "the cumulative impact of the restrictions" on freedom of movement may make the term "detention" appropriate.89 In light of these statements, Human Rights Watch concludes that the refugee camps/facilities on Nauru and Manus Island, Papua New Guinea, are places of detention. DIMIA acknowledges that the freedom of movement of those residing in the camps is "substantially curtailed."90 Asylum seekers who have attempted to leave have been arrested and put into Nauruan police cells for their "escape attempts."91 In Nauru, since May 2002, IOM has taken detainees to the coast each day for swimming and shopping.92 These excursions may be a predictable way out of the detention center, but they require applying for a pass, and are always limited to short, heavily supervised visits to a few locations.93 In Papua New Guinea no excursions are permitted: for example, the Sabian Mendaean detainees were denied their request to leave at Easter so that they could perform their traditional baptismal ceremonies. On September 18, 2002, the Manus detainees broke down the fences of the facility in protest at their situation, but later returned peacefully since there was nowhere else for them to go on the island. Private individuals who have tried to enter the Nauru facilities with written invitations from detainees have been denied entry.94 Not only have Human Rights Watch, Amnesty International and local human rights lawyers been denied access to the facility in Papua New Guinea.95 So have Caritas Australia and even a local priest.96 Australian politicians, Parliamentary delegations, journalists and two members of the Australian government's Independent Detention Advisory Group have been allowed to visit, but the site has not yet been inspected by any body competent to judge whether it is a place of detention or to assess the lawfulness of that detention.97 IOM reports that the Australian Red Cross now has "unrestricted access" to the populations on both Manus and Nauru, after an initial period of at least six months during which no such services were available, but has reportedly determined its family tracing services to be unnecessary to those on Manus.98 In certain contexts, even DIMIA and IOM themselves find it difficult not to make inadvertent references to the "detention centers" and "detainees" in the Pacific.99 In September 2002, an anonymous IOM employee in Nauru, troubled by the policy of his organization, wrote:
Conditions amounting to "arbitrary detention"
The conditions of detention on Nauru and Manus arguably contravene as many as six of these U.N. Principles and such detentions are therefore arbitrary. Detainees have no idea of the duration of their confinement, they have no means to challenge their detention before a court nor any other remedy, they have been informed of no grounds for it, and their detention is unlawful under the constitutions of both Nauru107 and Papua New Guinea108 because immigration detention in each case is permitted only in cases of unauthorized entry, whereas these asylum seekers' received entry permits at the point of arrival. Detainees have been severely restricted in their ability to communicate with the outside world. DIMIA states that detainees "can send and receive mail and faxes and make and receive telephone calls" and that incoming faxes will be passed along. Duties such as cooking and cleaning can earn coupons to be used to make international telephone calls, and "IOM will prepare and send e-mails on behalf of residents and check the messages of residents who have an e-mail address." In fact, during the first three or four months of detention in Topside on Nauru, the Iraqis rescued from the Aceng testify that they were not allowed to make any phone calls, even to family members to say they were alive. Letters could be posted but those received in return were opened and read, refugees believe, by camp interpreters. Later, phone calls of approximately five minutes each were permitted to no more than ten detainees per day. The women who had husbands or other family in Australia were also allowed to send faxes, but the refugees deny that they have ever had access to e-mail within the camp.109 There is no form of communication from within the camp in which privacy, for example between a lawyer and a client, would be assured. One letter, written by an anonymous Afghan detainee on Nauru, stated:
Conditions of detention for asylum seekers and refugees
Asylum seekers and refugees are facing difficult conditions on Manus and in Nauru. Guideline No. 5 of UNHCR's Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers (Detention Guidelines) and other human rights standards require that detained asylum seekers should have access to counsel and the ability to challenge the necessity of detention before an impartial decision maker. UNHCR's Guideline No. 10 requires that detained asylum seekers must be able "to make regular contact and receive visits from friends, relatives, religious, social and legal counsel."113 Both of these guidelines are violated by the conditions of detention in Nauru and Manus. UNHCR states, "Minors who are asylum seekers should not be detained."114 This accords with the Convention on the Rights of the Child, which Australia, Nauru and Papua New Guinea have all ratified. In early May 2002, there were 363 children detained in the camps in the Pacific: 125 of Manus Island and 238 on Nauru.115 IOM medical staff on Nauru reported that nearly all the children, including some thirty unaccompanied children, were showing signs of trauma such as nightmares and nervous twitches.116 Lacking a protection mandate, IOM has not taken the specific needs of detained children into account. Indeed, the duty of care for the unaccompanied adolescents on Nauru is unclear, because of the deliberately obscured liability and jurisdictional issues surrounding the running of the centers.117 UNHCR reminds governments that "During detention, children have a right to education..."118 The children aged six to sixteen in the Nauru centers can now, after much negotiation by an IOM staff member, attend the local school. On Manus, an Arabic-speaking teacher is provided for children and kindergarten.119 There are several forms of recreation offered, though it is reported that the detainees have tried to protest their arbitrary detention by a "strike" refusing to attend the school facility and other classes.120 The heat on both Nauru and Papua New Guinea is intense, the housing is roofed with corrugated iron in Nauru and consists of Nissen huts and converted shipping containers on Manus. For several months the refugees on Nauru were without electricity and could take salt-water showers only.121 The severity of the conditions has prompted individual detainees to demonstrate their psychological distress. DIMIA and IOM both claim that they do not keep statistics on incidents of self-harm, but that "swallowing shampoo or pins" has occurred.122 Conclusion
This is an unacceptable situation, to which UNHCR has a duty to object in the strongest terms. The U.N. Working Group on Arbitrary Detention should be granted access to visit detainees on the Pacific sites at the earliest opportunity in order to verify this apparent human rights violation. Concerns regarding refugee status determination procedures
Status determinations have been conducted in Nauru by UNHCR and DIMIA officers, and in Papua New Guinea by DIMIA officers alone. DIMIA officers use the UNHCR model and standards when conducting refugee status determinations. This allows it to evade Australia's appeal system, c so that decision-making is kept exclusively within the domain of the Department for Immigration. DIMIA officers do not view the cases they consider on Nauru and Papua New Guinea as "asylum applications." They rely almost entirely on oral communication during the process. They discuss the asylum seeker's claim, explore grounds for refugee protection, and disclose any potentially adverse inferences before a final decision is reached. DIMIA claims that the appeal is "essentially a fresh assessment" by a more senior departmental officer,126 in which the same three steps are repeated. The officers then reach an administrative decision, which has no legal standing. Similarly, Australian asylum case law is not applied to these offshore decisions. 127 As with the asylum seekers in Indonesia, those on the two Pacific sites are without access to legal advice including independent sources of country of origin information to help them prepare their cases. This deficiency is especially worrying in cases where their credibility may rest on failures of protection in countries of first asylum and transit, or on new risks of persecution that have only arisen, for example, since the fall of the Taliban. Instead, the asylum seekers are dependent on receiving country of origin information from the organizations detaining them (IOM) and deciding their fates (UNHCR/DIMIA).128 Very often smugglers had told them as to what to say, and there was no legal advice to counter this very dangerous "preparation."129 Refugees recognized on Nauru and resettled in New Zealand told Human Rights Watch that they now understood what a refugee was under international law, but had not understood it clearly at the time of their interviews, despite the fact that UNHCR assessors provided the definition at the beginning of their interviews. 130 Moreover, unaccompanied children and trauma victims on Nauru are particularly deserving of independent, specially trained131 representatives to assist them in presenting their claims before DIMIA and UNHCR.132 Many persons on the Pacific sites state that they are suffering from trauma from their ordeals in transit, when they were intercepted and forcibly transferred, and now in detention. Former detainees from Nauru remember several compatriots who were too unnerved to present their claims coherently without assistance in either the first or second "appeal" interviews and so were rejected.133 Independent advisers would also be able to address concerns regarding, for example, biased or unprofessional interpreters. As it is, there is little recourse for complaints, as reported by one Afghan detainee on Nauru:
Another Hazara asylum seeker, who was mistaken for a Tajik, recalled:
There are also reports that, contrary to UNHCR training for refugee status determination, "Interpreters are given an authority to recommend about character, language and accent of the asylum seekers."134 UNHCR denies that such authority was ever formally or knowingly given and reports that no recommendations by interpreters are noted in any of the case files from Nauru.135 Again, independent legal advisers in a national determination procedure would have been able to provide independent interpretation or investigate allegations that an interpreter played an improper role in influencing the case. The quality of DIMIA decisions could be improved if detained asylum seekers had access to independent legal advice. DIMIA has stated that it is "not aware of any arrangements that would enable them to get [legal] assistance if requested," but this statement fails to mention the fact that two visa applications from members of Australian Lawyers for Human Rights, offering free advice to detainees on Nauru, have been refused.136 Former detainees from Nauru testify that when they asked IOM staff about the possibility of getting lawyers, they were told simply, "No way."137 UNHCR has notified both the Nauruan and Australian governments on "several occasions" of its concern about lack of legal advice,138 but DIMIA cites the UNHCR status determination model, which involves no lawyers,139 as its justification for this deliberate omission.140 Though IOM and DIMIA both frequently cite the Indochinese Comprehensive Plan of Action as a precedent for their operations in the Pacific today, they ignore the fact that asylum seekers processed under this plan in Hong Kong were provided legal assistance in presenting their claims.141 Offshore asylum seekers in Nauru and Papua New Guinea are thus disadvantaged compared to onshore applicants. Every asylum seeker in onshore detention is eligible for free legal advice under the Immigration Advice and Application Assistance Scheme (IAAAS) and many onshore asylum seekers may still depend upon their right, albeit limited, to appeal to an Australian court.142 In summary, those in arbitrary detention on Nauru and on Manus Island face further obstacles to protection resulting from the denial of legal counsel, both to advise on asylum claims and on challenging the lawfulness of detention, as well as from the absence of an independent appeal mechanism in the asylum process. For those subjected to the procedures in the Pacific, who previously triggered Australia's protection obligations and who may have come directly from places where their lives or freedom were threatened, less fair and full procedures are penalties within the meaning of Article 31 of the Refugee Convention. Lack of durable solutions
After a refugee is recognized on an offshore site, Australia and UNHCR will try to find them a resettlement place somewhere in the world. This will be done, says DIMIA, "as quickly as possible and consistent with the government's strategy of ensuring that a preferred migration outcome for people who are secondary movers essentially does not end up being Australia..."145 The government claims it is thwarting the people-smugglers for Australia to send refugees on Nauru to the United States or Sweden. This reasoning ignores the fact that many refugees in Nauru would be happier to go somewhere offering them permanent status, than to Australia, which is only offering three- or five-year visas.146 Given that a number of those refugees held in the Pacific camps had previously entered Australian territorial waters or were on board Australian warships, Australia has a greater legal responsibility to them.147 A spokesman for the Australian Immigration Minister has erroneously stated that those awaiting resettlement on Nauru and Manus have "no greater claim on refugee resettlement than those waiting in camps in Africa and the Middle East in appalling conditions"148 and the Immigration Minister himself has rejected the idea that Australia should become a "guarantor of last resort" for the Pacific Solution refugees149 even though the Memorandum of Understanding with Nauru stated categorically that "Australia will ensure that no persons are left behind in Nauru."150 Under oath to the Australian Senate, the Department of Foreign Affairs has stated that Australia does have a legal obligation to protect the refugees "if other countries are unable or unwilling to provide protection..."151 As of October 23, 2002, of the then 701 people found to be refugees under "Pacific Solution" processing, Australia had only accepted for resettlement 281 people, of whom 153 have close family links in Australia.152 As of November 18, Australia had resettled 310 and was considering a number of other cases. It is ultimately likely to take some 20 percent of those who have been recognized as refugees there.153 Meanwhile New Zealand, had resettled 202 people, with Sweden, Denmark and Canada also accepting small numbers. As of November 18, 2002, 526 persons had departed from Nauru and Manus for resettlement.154 Had it not been for New Zealand, there would have been a significant shortfall in resettlement places. Separation of families
Of these people with immediate family ties, Australia had resettled forty-two Iraqis (one man, thirteen women and twenty-eight children) from Papua New Guinea and eighteen from Nauru by the end of July 2002. Another forty-nine refugees with immediate family links and 115 with less immediate family links living in Australia remained in the Pacific.158 As of late September, only those women with husbands in Australia had actually departed Nauru for resettlement in Australia, while the others accepted in principle by Australia remained in the offshore detention centers. This contrived separation of refugee families is certainly a penalty, as it flagrantly disregards the principle of family unity and would never have arisen if those intercepted had been admitted into the Australian mainland asylum system.159 UNHCR has called on the Australian government to not only reunify refugee families split between Australia and the Pacific sites, but also to grant derivative status to the spouses and minor children of refugees recognized in Australia so that they can be immediately reunited rather than having to undergo a separate refugee status determination and possible forced return if rejected.160 Return with signed consent
As of October 8, 2002, 410 detainees on Nauru (398 Afghans, six Iranians, three Sri Lankans and three Iraqis) had accepted the reintegration assistance package offered by Australia, prompted, some said, by mass depression following the sudden and unexplained death of a young detainee in September. As of November 18, a total of 179 persons had voluntarily repatriated from the two Pacific sites.162 IOM refers to the "Pacific Solution" as entering its "endgame" phase,163 despite the fact that security and human rights conditions in Afghanistan remain grim. The voluntary nature of returns from conditions of prolonged arbitrary detention is always highly questionable, but IOM, hired to manage the detention centers on Nauru and Papua New Guinea, is not the organization to ask that question.164 In one case, IOM removed four asylum seekers (three Sri Lankans and one Pakistani) from Nauru to their countries of origin without giving UNHCR more than overnight notice. The incident led to an informal but high-level agreement between IOM and UNHCR that all returns must in future be counseled by UNHCR, prior to deportation, to check that the decision to withdraw their claims and to return is genuinely voluntary. 165 Forced return or indefinite detention
Iraqi refugees reported that shortly before the first decisions were handed down on Nauru in April, an Australian official visited the camps and told them very firmly, "Anyone rejected should go back to Iraq." Unaware whether or not the Australian government had the ability to enforce such deportations without their consent, the detainees experienced intense anxiety and depression from this meeting. One refugee, recognized by UNHCR and resettled from Nauru to New Zealand, continues to be very concerned for the mental health and physical protection of his brother, who arrived in Nauru twenty days later and had his case rejected by a DIMIA decision maker.168 There were reports of violent clashes involving protesting Afghan rejected asylum seekers, including women and young children, and large numbers of the Nauru police following the April round of decisions.169 In March 2002, the Migration Act was amended170 to allow certain non-nationals to be brought from a "declared country" such as Nauru or Papua New Guinea into mainland Australia, for reasons ranging from medical evacuation to deportation, without allowing them to apply for protection under the Act. Such "transitory persons" move as if within a bubble of individual excision: they are barred, for example, from challenging their deportation before Australia's Refugee Review Tribunal or courts for at least six months. The fate of rejected asylum seekers who cannot be returned is unclear. Despite the fact that some of them have close family members who have received refugee status in Australia, this group is most likely to end up in indefinite detention on the excised territory of Christmas Island. They will need to be transferred there at some point if Papua New Guinea and Nauru hold Australia to its assurances that no one shall remain on their territories after processing is completed.171 Human Rights Watch believes that those whose claims have been rejected should be offered humanitarian protection in the Australian community until conditions in their countries of origin allow for return with safety and dignity. Conclusion
UNHCR has stated that Australia has a "special responsibility" to find durable solutions for all the recognized refugees in the Pacific sites.172 This follows from the fact that the "Pacific Solution" deliberately deprived them of an available durable solution, namely, admission and settlement in Australia. The Australian government recognizes that where refugees have entered Australian territory, including territorial waters or an Australian naval ship, its obligations under the Refugee Convention are engaged.173 Beyond non-refoulement, Australia also has "special obligation" to see that these refugees are ultimately able to access a legal status affording human rights. This implies access to resettlement if return to their countries of origin in safety and dignity remains impossible. In summary, those refugees who were intercepted and transferred to the Pacific sites are being penalized for their secondary movement and attempt at illegal entry, by means of arbitrary detention in remote locations, lesser procedural safeguards in relation to their status determinations, and also by the imposition of unnecessary obstacles to the enjoyment of asylum and family life. Mandatory detention of asylum seekers in Australia
Many of the asylum seekers held in detention centers on the Australian mainland are of the same profile and traveled by the same routes as those held in Nauru and Papua New Guinea, returned to Indonesia, or otherwise penalized for their secondary movements. In 2000-2001, 8,401 people were held in immigration detention in Australia, of whom 1,103 were children.177 As of July 29, 2002, 1,434 adults and 184 children178 remained in six onshore (mainland Australia) detention facilities, of whom almost half were Afghans, Iranians and Iraqis.179 By mid-September, there were 1,180 detainees onshore. Violations of Australia's human rights obligations
These factors led the UN Human Rights Committee in A v Australia181 to emphasize that "every detention decision should be open to periodic review so that the justifying grounds can be assessed" and found that the absence of this review right constituted arbitrary detention.182 Australia failed to comply with this Human Rights Committee opinion, however, and its policy remains in violation of international standards.183 The major documented human rights concerns raised by Australia's detention policy are extended periods of indefinite detention; detention of recognized refugees; indefinite detention of rejected asylum seekers who cannot be returned;184 lack of proper judicial review of the detention; disregard for the principle of family unity; detention of children including unaccompanied children; lack of information provided to detainees about their rights; the use of "separation detention" with lack of access to legal counsel; lack of a proper independent monitoring and accountability mechanism; and the punitive use of criminal prisons to detain protesting asylum seekers, including child asylum seekers. Conditions in Australian mainland detention centers are extremely difficult. Three out of six remaining detention centers are in remote, desert locations, making contact with lawyers and family much more difficult. Detainees are held in prison-like conditions.185 A new facility called Baxter Immigration Detention Facility was opened near Port Augusta, South Australia, in 2002. It has a 1200-volt outer electric fence, movement detectors between the fences. Each of the nine compounds has its own perimeter fence and steel gates. There are no windows, so detainees can only see the sky from the central courtyard. Detainees are locked in their rooms every night from 9:00 p.m. to 8:00 a.m. Some people who have been transferred to Baxter from the equally remote center at Curtin have not had visitors or seen anyone but the guards of Australian Correctional Management for over two years.186 Such conditions of detention exacerbate the impact of previous torture, arbitrary detention or trauma in countries of origin, first asylum and transit, as well as creating fresh trauma, especially in children. Human Rights Watch interviewed one fifteen-year-old Iraqi boy at Villawood Detention Centre who, over the course of two years in detention, had witnessed numerous suicide attempts and instances of extreme violence and self-mutilation. While in Curtin Detention Center, he had been among those forcibly moved using plastic handcuffs "with serrated teeth cutting backwards" and he was put into an isolation cell with his father for ten days. After this treatment he was diagnosed as suffering from depression and, in December 2000, threatened to kill himself by slitting his throat. One Tuesday in May 2001, in Port Hedland, he and his elder brother claim they were beaten by guards. The following week, they were randomly caught in a raid by Federal Police officers and taken, along with other alleged "trouble-makers," to spend seventeen days in state jail. In the face of all these traumatic experiences, however, his main preoccupation when interviewed by Human Rights Watch was his education: He said it was the lack of adequate educational facilities at Villawood, "just once class with one teacher for all ages together," which really made him feel suicidal because he saw years of his life passing by and "taking my future along with them because they take my chance of education."187 This boy, who has been in Australia so long that he speaks good English with a strong Australian accent, described himself as "like a person who is drowning and is holding themselves up by one arm, but my arm is getting tired and it will soon be easier to just let go."188 The future of detention in Australia
The legal conditions of detention there, however, will be less protective than on the mainland because asylum seekers there will be beyond the powers of the Migration Act and so will not be provided the right to apply directly for protection visa in Australia. UNHCR has expressed concern at the lack of formal procedures for the assessment of refugee status in excised places such as Christmas and Cocos Islands.191 DIMIA told Human Rights Watch that Section 256 of the Migration Act still obligates them to afford people in immigration detention on Christmas Island "all reasonable facilities to obtain legal advice or take proceedings in relation to their detention..."192 Respect for this obligation should be closely monitored, and independent legal advice extended for the purpose of assisting refugee status determination as well as for challenging the detention. New section 494AA of the Migration Act bars proceedings before a court relating, among other things, to the lawfulness of the detention of an "offshore entry person" in a place like Christmas Island. In letter to Human Rights Watch, the Australian Immigration Minister claimed that this would not constitute a violation of ICCPR Article 9(4) because another subsection of the Act retains the constitutional jurisdiction of the Australian High Court over such questions.193 In light of the lack of legal assistance for a detainee in bringing such a case, however, this residual right to appeal to the High Court is not an effective remedy. Detention on Christmas Island is, like the zones d'attente in certain European airports,194 subject to human rights requirements relating to all administrative detention, and may be considered arbitrary if there are elements of inappropriateness, injustice, lack of predictability or disregard for due process of law.195 Refugees arriving without authorization - by implication, many refugees making secondary movements - are now excluded from protection in Australia even as they stand on Australian soil. Potentially, a person could be intercepted, taken to Christmas Island for as little as a few hours, and thereby excluded from applying for asylum in Australia even while they were detained for months on the Australian mainland. If recognized, refugees on Christmas Island or another excised territory will have to apply, from within Australia, to be resettled in Australia. Before this penalty is imposed on them, they are given no chance to rebut the presumption that they previously enjoyed or had access to effective protection elsewhere. Withholding rights and solutions: Temporary Protection Visas
Hierarchy of refugee protection in Australia
As of May 31, 2002, 8,413 TPVs of three years' duration had been granted. Of these, 3,290 are held by Afghans and over 90 percent are held by Afghans and Iraqis.201 The September 2001 Temporary Protection Visas
Nearly every refugee will fail the application of this "seven-day rule."204 Since the Australian government appears to regard the mere presence of UNHCR in a country such as Indonesia to be "effective protection," most of the refugees interviewed by Human Rights Watch will be blocked from ever attaining permanent status. The seven-day rule is also to be applied to many of the holders of 1999 TPVs when their three-year visas expire.205 The first of the 1999 TPVs expire in November 2002.206 At that point, these previously recognized refugees have to re-prove that they have a well-founded fear of persecution, in light of present circumstances.207 If re-recognized, each refugee will then be subjected to the "seven-day rule." The two "off-shore" Temporary Protection Visas
The second "offshore" TPV is a five-year visa, designed for people resettled from transit countries like Indonesia, that is, the "second safe country they enter" or "a country other than your home country or country of first asylum."210 The criteria for granting this visa are extremely similar to those above, but in this case the person may apply for a permanent protection visa after four and a half years (54 months) or a shorter period specified by the Immigration Minister. This visa will be available to all those in places like Indonesia, Papua New Guinea and Nauru who are not "offshore entry persons" because they never made contact with Australian land (of the present detainee population, in other words, those who were on board the Tampa and SIEVs 1,2 and 3).211 The seven-day rule also affects secondary movers in other regions applying for resettlement to Australia. So, for example, someone who spent more than seven days in Iran before moving to Jordan and then applied for resettlement from there might be granted only a three-year visa rather than a permanent one. This provision is an extension of a longstanding skepticism by the Australian government to resettling what they call "out of region" cases, for example, a Somali man applying for resettlement from Iran. The Australian government would not bar his application, but will look twice as closely at it, asking, "Why has he moved? Are we encouraging secondary movement if we accept this case?" If he moved, in their opinion, because refugee status determination or resettlement works faster from the second country of asylum, he may well be denied a place in order to deter asylum seekers with this motive.212 Lack of appeal against the "seven day rule"
Human Rights Watch is gravely concerned that there is no opportunity for refugees to present the reasons why they were not "effectively protected" in the country or countries where they spent more than seven days.215 If the Australian government insists on proceeding with this system, then individual circumstances as well as general country conditions must be considered to distinguish "irregular movers" from those making secondary movements because they had not yet reached a place of effective protection. UNHCR advises that "no strict time limit can be applied to the concept of `coming directly'" in Article 31 of the Refugee Convention.216 That advice is flagrantly disregarded by Australia in introducing the "seven-day rule." Australia's rigid approach could cause refugees to make false statements about the directness and speed of their flight, when in fact their cases would be better served by a full explanation of the human rights abuses, sometimes amounting to persecution on grounds of nationality, which they may have suffered while living in places like Quetta, Peshawar or Qom over a period of years. Terms and conditions of Temporary Protection Visas
The Australian government stated, "The differential treatment of asylum seekers and refugees on the basis of, for example, secondary movement or forum shopping or delayed application for asylum can be a reasonable and responsible approach to the problem of people-smuggling and abuse of asylum systems" but then went on to add the proviso that this is the case only if reception standards "meet the core Convention obligations."217 They have also told Human Rights Watch that they are confident the Australian TPV status brings rights "in excess of international legal obligations."218 Both Human Rights Watch and UNHCR219 have found, however, that refugees' core rights are being violated by two key conditions of the Australian TPVs. Denial of family unity (reunification)
Family unity is a fundamental principle, though not a binding obligation, of human rights, humanitarian and refugee law, as affirmed in the Final Act of the UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons and also in a wide array of Excom Conclusions.221 The Convention on the Rights of the Child, in particular, requires that "family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner." The complete ban on family reunification applications from TPV holders does not respect this state duty. The UNHCR Guidelines on Reunification of Refugee Families, furthermore, state that in situations where members of the same family have reached temporary asylum in different states, their reunification in the state best placed to offer protection should be facilitated.222 Australian policy obstructs UNHCR's humanitarian work in this area. Family separation is often the greatest hardship of a refugee endures; a host state should not intentionally exacerbate this suffering.223 Many refugees believe a central purpose of the Australian TPV legislation was to impede family reunion arrivals. In fact, Human Rights Watch's findings suggest that the 1999 law created a new market for people-smugglers, one mainly consisting of women and children trying to rejoin their husbands and fathers in Australia. The number of women-at-risk in urban refugee situations of the Middle East and South Asia increased, where wives and mothers found they could not follow their husbands and sons and so were stranded in precarious protection situations. The Australian government stopped differentiating statistically between children and adults as of June 30, 2001224 so it is difficult to demonstrate conclusively that the family reunion restrictions of TPVs created more child smuggling-victims, but the high proportion of women and children arriving by boat in late 2001 can be inferred from comparing the ratio of "cases" to "people" listed by DIMIA as arriving.225 Several Human Rights Watch interviews also confirmed this situation to be typical,226 including one interview with a mother and son who almost drowned on SIEV-X in their attempt to join a TPV holder in Australia. It must be emphasized that in no case was the desire for family reunion the primary reason for leaving the first country of asylum, which was invariably based on a lack of legal status and/or threats to their safety, though family ties may have determined the final destination of their flight.227 Violation of right to travel documents
Under a Bill before the Australian Parliament at the time of writing,234 TPV holders would be required to search for jobs at the same rate as Australian nationals in order to continue qualifying for welfare payments, regardless of their likely language difficulties and lack of contacts in the community. Violation of duty to facilitate assimilation
Expiry and the prospect of forced return
Renewal of TPVs can therefore be denied under less stringent standards and procedures than the Refugee Convention "cessation" inquiry, used to determine when refugee status has ended for a particular individual.238 The standards and procedures for cessation of refugee status are more rigorous than the standard for granting protection, but the Australian approach disregards this deliberate shift in the weighting of the burden of proof.239 As a result, a deep sense of insecurity affects the TPV-holders' lives from day to day.240 A boy from Afghanistan, of Tajik origin from Herat, now living alone with his younger brother in Melbourne, felt that his status put pressure on him to make a decision regarding return: "Our biggest worry now is that we have only a temporary visa and so we are in limbo. The government are changing the legislation under our feet day by day and we have no information." The Afghan refugee community tells them news about what is happening in Afghanistan but he and his brother do not know what to believe: "We are very uncertain about what is true and what is not. Are we going to be sent home? Can you tell us? And if we stay here, are we going to be temporary forever?"241 Since the introduction of TPVs in October 1999, 1,693 children have been issued them, of whom 285 are unaccompanied children released from detention into the community.242 For these children, the Australian Immigration Minister is their legal guardian and adjudicator of their status - a clear conflict of interests. One Iraqi Kurdish woman explained she felt tricked because the law was changed without warning in September 2001. She suddenly found she was expected to have applied for a permanent visa before September 27, 2001, even though she had previously been informed that she had thirty months to do so. She lodged her application for renewal of her visa only in February 2002, which means that she will never be able to bring her parents or brother over from Iran. "My biggest worry is that we will be sent back when our visa expires. It is a kind of permanent insecurity. No one will give us a legal visa: not the Iranians, not the Australians...I have never had a stable condition in my whole life, since I was born until now [she is 27]. I am frightened that my child will have the same life..."243 At first refugees and their advocates were relatively sanguine about the threat of revocation or cancellation of TPVs. Then came September 11 and the U.S.-led military action in Afghanistan. Now there is evidence of TPV holders flying illegally to New Zealand and applying for asylum there to escape the risk of forced return.244 The Australian Immigration Minister has made belligerent statements with regard to forced returns to Afghanistan being inevitable and even imminent.245 One unaccompanied Afghan boy, released from Curtin Detention Centre to live on a TPV, expressed his anxiety:
He is afraid of return despite the ousting of the Taliban because he remembers life before they came to power: "When my father was not at home my mother had to put big sticks across the door and she would stay awake all night to watch over us." His family was mixed Tajik/Hazara, so they were persecuted by all sides because of their ethnicity: "We were caught between two sides. And now the Pashtuns are like a snake that has been bitten...just waiting for revenge." While he was detained in Curtin, he wrote a letter to the Red Cross asking for family tracing services after a representative visited the center, but he never heard back and has had no news of his family for two years now. "Sometimes ahead is even worse than looking back," he concluded, "I would like to find some sort of permanent security from which I can make a true decision, not a forced decision."246 During September and October 2002, DIMIA sent a letter to Afghan TPV-holders asking them to explain why they should be allowed to remain in Australia once their visas expire. Given the deeply unstable situation in Afghanistan almost a year since the fall of the Taliban, as documented in several Human Rights Watch reports, it is extremely worrying that individuals, including unaccompanied children, are expected to justify their need for continued refuge in this way, without any access to legal aid to assist in making their cases. Refugee status should properly be cancelled only by applying the cessation clauses in the Refugee Convention. They require that the country of origin has undergone a change of a "profound and enduring nature."247 They are generally invoked only after UNHCR has made a declaration of cessation, but even that should only create a presumption which individuals should be able to challenge in an effective manner. The cessation clauses are negative in character and exhaustively enumerated.248 Any cancellation procedures that try to circumvent or fail to meet these standards are in violation of Australia's international obligations. Australia also rejects the category of refugees defined in the Convention who require permanent protection because they experienced such gross human rights violations.249 Human Rights Watch interviewed at least one Hazara woman who made it very clear why she never intended to return to her country, whatever had changed:
Conclusion
The new TPVs, conversely, are a penalty within the meaning of Article 31 of the Refugee Convention because they unnecessarily and unreasonably withhold several other basic rights from recognized refugees. There is no evidence to suggest that an average refugee making a secondary movement will have less "need," either materially or in terms of protection, than a refugee remaining in first countries of asylum. Indeed, they may have more dire "protection need" and so have been compelled to flee from more than one country. Apart from Article 31, the Refugee Convention obligations that are violated by Australia's use of TPVs include the right to travel documents, the right to have cessation of refugee status under the Convention assessed in accordance with specific standards, and the right of refugees to have their integration facilitated in the absence of a voluntary repatriation as a durable solution. This Australian policy also disregards the fundamental human rights principle of family reunification. It is true that refugee status should only be a temporary phenomenon, but that does not imply return to a country of origin in all cases. The status should be temporary in the sense that it is transformed into another, more secure immigration status if return in safety and dignity remains impossible. This is to recognize that refugees are human beings, not units to be "warehoused" for years on end. 160 Australian Minister for Immigration, Philip Ruddock, to the Australian Anglican Synod, July 27, 2001. 161 Australian Minister for Immigration, Philip Ruddock, to the Australian Parliament, February 19, 2002, quoted in Fr Frank Brennan SJ, "Australia's Refugee Policy - Facts, Needs and Limits," 2002, p.9-10. 163 UNHCR Excom Conclusion No. 44 (XXXVII) - 1986. 164 See DIMIA, "Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organized Crime: Australia's Commitment" which uses the term "disincentives." 165 Article 31(2) then goes on to prohibit Contracting States from imposing restrictions on the free movement of such refugees. There is also a suggestion in Article 31(2) that the asylum seekers themselves should be the ones to obtain their own admission into another country of asylum: "The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country." 166 UNHCR Division of International Protection internal memo, May 2002, quoted in: Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection," UNHCR Global Consultations, October 2001, p.9. 167 Human Rights Watch interview with DIMIA, May 2002. 168 UNHCR, "Guidelines and Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999, para 4. 169 The travaux preparatoires of the Refugee Convention show the "come directly" phrase to have been only a last minute adjustment proposed by the French delegation, which feared that the refugees in Belgium and other neighboring countries would head their direction. Yet the choice of "a territory" rather than the refugee's country of origin was a deliberate acknowledgement of the problems many refugees might face finding effective protection in first countries of asylum - the situation of Poles in Czechoslovakia was mentioned during the negotiations, by way of example. [Guy S. Goodwin-Gill, "Article 31 of the 1951 Convention Relating to the Status of Refugees: Non-penalization, Detention and Protection," UNHCR Global Consultations, October 2001, p.4]. 170 See R. Byrne and A. Shacknove, "The Safe Third Country Notion in European Asylum Law", Harvard Human Rights Journal, 9 (1996). 171 See note 34 for definition of "interception." 172 For examples of post-Tampa interception policies by other countries, see "Not For Export: Why the International Community Should Reject Australia's Refugee Policies," A Human Rights Watch Briefing Paper, September 2002. 173 See, e.g., UNHCR, "Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea," para. 4 (citing the United Nations Convention on the Law of the Sea of 1982 ("UNCLOS"), the International Convention on Maritime Search and Rescue of 1979 ("SAR") and the International Convention for the Safety of Life at Sea of 1974 ("SOLAS')). 174 See, e.g., UNHCR Excom Conclusion No. 15 (XXX) - 1979, para. c ("It is the humanitarian obligation of all coastal States to allow vessels in distress to seek haven in their waters and to grant asylum, or at least temporary refuge, to persons on board wishing to seek asylum."); UNHCR Excom Conclusion No. 23 (XXXII) - 1981, para. 3 ("persons rescued at sea should normally be disembarked at the next port of call"). 175 UNHCR Excom Conclusion No. 23 (XXXII) - 1981, para. 23; see also UNHCR, "Incorporating Refugee Protection Safeguards Into Interception Measures," Ottawa, Ontario, May 14-15, 2001, para. 10 ("in the context of interception measures, the principle of non-refoulement must be fully respected, and effective safeguards to ensure this should be developed"). 176 Australian territorial waters: twelve nautical miles from the low water mark of Australian shores. Technically, Australian waters also means: (a) in relation to a resources installation-waters above the Australian seabed; and (b) in relation to a sea installation - waters comprising all of the adjacent areas and the coastal area. See Migration Act 1958 - Section 5. 177 While UNHCR does not fundamentally disapprove of interception, it has stressed the need "to ensure, through the adoption of appropriate procedures and safeguards, that the application of interception measures will not obstruct the ability of asylum-seekers and refugees to benefit from international protection." UNHCR, "Interception of Asylum-Seekers and Refugees: The International Framework and Recommendations for a Comprehensive Approach," para. 35. The development of "Guidelines on Safeguards for Interception Measures" forms part of the Agenda for Protection endorsed by the UNHCR Executive Committee in October 2002. 178 See e.g. UNHCR Excom Conclusion No. 82 para (d)(iii), and those Conclusions relating to asylum seekers at sea and rescue at sea, such as Nos. 14, 15, 23, 26 and 38. 179 UNHCR, "Background Note on the Protection of Asylum-Seekers and Refugees Rescued at Sea," March 18, 2002, para. 23. 180 UNHCR Excom Conclusion No.30 (XXXIV) - 1983. See also: UNHCR Excom Conclusion No.8 (XXVIII) - 1977 and Conclusion No.15 (XXX) - 1979 which both recommend that there should be a clearly identified central authority responsible for examining requests for refugee status and that a frontier authority should not reject an asylum seeker without reference to that central authority. 181 DIMIA Factsheet No.76; and DIMIA testimony at the Australian Senate Inquiry into a Certain Maritime Incident, 470ff. 182 In addition, a further two vessels carrying c.146 people were returned to Indonesia in December (these people were not interviewed by Human Rights Watch) and other asylum seekers who were intercepted were transferred to the Pacific sites. 183 Human Rights Watch, No.19, Mataram, Indonesia, April 16, 2002, and corroborated by: No. 22, Mataram Indonesia, April 18, 2002. 184 Human Rights Watch interview, No.29, Mataram, Indonesia, April 18, 2002. 185 Human Rights Watch interview No.15, Mataram, Indonesia, April 15, 2002. 186 Human Rights Watch interview No.17, Mataram, Indonesia, April 15, 2002, corroborated in every detail by a separate, private interview with her husband, who said he was struck exactly four times and "They must have been electric - otherwise four strokes, even hard jabs, would not have made me completely unconscious." He shakes as he remembers this beating and says he will never forget it: "When I was a child, the Mujahadin beat me and I never forgot that, so how could I forget this beating by Australia just last year?" Also corroborated by: Human Rights Watch interview No. 22, Mataram, Indonesia, April 18, 2002 & Human Rights Watch interview No.31, Mataram, Indonesia, April 19, 2002. 187 An Australian Commonwealth officer may, under domestic law, use "reasonable force" in pursuit of border protection. Migration Act 1958, Division 12A, Section 245F(10). On August 28, 2001, at the start of the Tampa Crisis, the then chief of the Australian Defence Force (ADF), Admiral Chris Barrie, wrote an order that all activities under Operation Relex "are to comply with international law and domestic legislation." Under international law, everyone (including each asylum seeker or refugee) has the right to security of person (ICCPR, Art. 9). The Havana Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), Principle 5(a) requires that law enforcement officials shall "exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved," and shall "minimize damage and injury, and respect and preserve human life." Sometimes the mass influx of refugees at borders is cited as a security problem for governments, however the Basic Principles state that "exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from the...basic principles" stated above, as well as several others relating, for example, to medical care. 188 Human Rights Watch interview, No. 22, Mataram, Indonesia, April 18, 2002. 189 Human Rights Watch interview, No.21, Mataram, Indonesia, April 18, 2002. 190 Human Rights Watch interview, No.23, Mataram, Indonesia, April 18, 2002. According to the Convention on the Rights of the Child, Article 22(1), a Contracting State is required to provide intercepted migrant and refugee children with "appropriate protection and humanitarian assistance," which should be understood as including food, water and medical care that is adequate rather than minimal. 191 Human Rights Watch interview, No.18, Mataram, Indonesia, April 15, 2002. Also corroborated by: Human Rights Watch interview, No.27, Mataram, Indonesia, April 17, 2002. 192 Human Rights Watch interview, No.24, Mataram, Indonesia, April 18, 2002. 193 Another Afghan man also witnessed these beatings with "iron sticks that can be small and then extend". Human Rights Watch interview No.21, Mataram, Indonesia, April 18, 2002. 194 Interestingly, this witness recalls that the Australian officer who dealt out this most violent beating was not seen again after this incident, suggesting that his superiors took him off duty. 195 Human Rights Watch interview No.25, Mataram, Indonesia, April 17, 2002, and corroborated by Human Rights Watch interview No.27, Mataram, Indonesia, April 17, 2002. 196 Human Rights Watch interview No.13, Mataram, Indonesia, April 15, 2002. 197 Human Rights Watch interview No.27, Mataram, Indonesia, April 17, 2002. 198 Human Rights Watch interview No.18, Mataram, Indonesia, April 15, 2002. 199 Human Rights Watch interview No.27, Mataram, Indonesia, April 17, 2002 & corroborated by: Human Rights Watch interview No.23, Mataram, Indonesia, April 18, 2002. 200 Human Rights Watch interview No.24, Mataram, Indonesia, April 18, 2002. 201 Section 207 of the Australian Navigation Act 1912 defines a "seaworthy" vessel as one that "is not overloaded." If a vessel is left in an unseaworthy condition, it is not just a violation of international maritime law [International Convention for the Safety of Life at Sea, 1974, Chapter 5, Regulation 15] but also may endanger lives and so be a violation of the right to life (ICCPR, Article 6). 202 "Secret File: Operation Relex," Sydney Morning Herald, October 28, 2002. See also: CMI Report, p.27 and Transcript of Evidence, CMI 296. 203 Human Rights Watch interview No.13, Mataram, Indonesia, April 15, 2002. 204 Human Rights Watch interview No.27, Mataram, Indonesia, April 17, 2002. Note that several documents relating to this operation were censored prior to release to the public. See "Damaging documents withheld or censored," Sydney Morning Herald, October 28, 2002. 205 Generally speaking, "safe third country" policies prohibit asylum seekers from accessing a country's refugee status determination procedures if, prior to arrival in that country, they traveled through another, purportedly "safe" country where they did or could have applied for refugee status and/or obtained protection. The asylum seeker will be returned and readmitted to the third country, and is obliged apply for asylum there instead of at their intended destination. 206 Australian Migration Act 1958, section 91, subdivisions AI and AK. 207 Article 4 of the Dublin Convention [Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, June 15, 1990, 30 ILM 425 (1991)] recognizes the primacy of immediate family unity in determining the country responsible for examining an asylum application and Articles 3(4) and 9 allow states to consider family, cultural or other individual factors before effecting a return. The standards for determining `effective protection' are also much higher. In one case of the European Court of Human Rights [Decision as to the Admissibility of Application no.43844/98 (TI v United Kingdom), ECHR, March 7, 2000] it was even found that the United Kingdom should not "rely automatically...on the arrangements made in the Dublin Convention." 208 DIMIA evidence to Australian Senate Inquiry into a Certain Maritime Incident, 822ff, April 16, 2002. 209 Very similar allegations with regard to the use of electric batons have also been made by asylum seekers who were on board other SIEVs and taken to Nauru and Papua New Guinea and who have therefore had no opportunity to confer with those interviewed by Human Rights Watch in Indonesia. The "Christmas Island Group" at Nauru (some 200 people) claim that the Australian Defence Forces made them spend nine days in a hull of a boat, throwing water on them and prodding them with electric batons, for example. 210 "[T]here was no use of any electrical cattle prod type implements. The only things the ADF people were equipped with were batons and they carried capsicum spray...I have total confidence that our Navy and Army people who were out there throughout this very demanding operation used minimum force at all times...I am totally confident that the Navy would do everything they could to ensure that the vessels that were turned around and sent back were seaworthy to go back to Indonesia." Australian Ministry for Defence (Air Marshal Houston) testimony at the Australian Senate Inquiry into a Certain Maritime Incident, 1081-83, April 17, 2002. 212 The asylum seekers do not deny these two actions, but the violent or hysterical behavior of some asylum seekers is understandable when viewed in the context of their compelling reasons for secondary movement, fears of chain refoulement, abuses already endured at the hands of smugglers and Indonesian police, and after the physical and emotional ordeal of the voyage itself. For most of the persons interviewed, the disappointment of their faith in Australia as a humanitarian country caused greater anger than seemingly greater abuses suffered earlier in their home and asylum countries. One of the men interviewed had made three previous attempts to reach Australia by boat, almost drowning each time, before being intercepted by the Australians in October (Human Rights Watch interview No.22, Mataram, Indonesia, April 18, 2002) and another had made eight previous attempts during which the fishing vessels had caught on fire, been capsized in hurricanes, and gotten lost with broken compasses for days at sea without food or water (Human Rights Watch interview No.26, Mataram, Indonesia, April 17, 2002). 213 Rear Admiral Smith in Transcript of Evidence, CMI 490: "It is certainly fair to say that the change in the behaviour pattern of these people is directly linked to the change in the attitude of the Navy, generated by the policy..." 214 See UNHCR Excom Conclusions No. 22 (XXXII) - 1981, No. 81 (XLVIII) - 1997 para h, No. 82 (XLVIII) - 1997 para d (iii), and No. 85 (XLIX) - 1998 para q. 215 For standards of humane treatment during interceptions at sea, see The Ottawa Conclusions from UNHCR Global Consultations on International Protection, Regional Workshops in Ottawa, Ontario and in Macau, "Incorporating Refugee Protection Safeguards Into Interception Measures," May 31, 2001, UN Doc.EC/GC/01/13. See also the conclusions/summary of the `Expert Roundtable' convened by UNHCR in Lisbon on March 25-6, 2002, to discuss rescue-at-sea in relation to refugee protection. 216 The Migration Act 1958 original reference in section 5 gave the gloss that to "enter Australia" meant to "enter the migration zone" and this in turn is 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." 217 Article 27 of the Vienna Convention on the Law of Treaties [U.N.Doc A/Conf 39/28, UKTS 58 (1980), 8 ILM 679] states that "a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty." 218 Australia's Immigration Minister, Philip Ruddock, has stated that "[t]his change has no impact whatsoever on the territorial coverage of Australia's international obligations under the Refugees Convention." Letter from Philip Ruddock to Kenneth Roth, Executive Director, Human Rights Watch, July 2002. See also DIMIA Answers to Question on Notice from the Australian Senate Inquiry into a Certain Maritime Incident, 13 June 2002. 219 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), U.N. G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, p. 197, U.N. Doc. E/CN.4/1984/72, Annex, 1984, entered into force June 26, 1987. Article 3 of the CAT states that "No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture." See Mutombo v Switzerland, CAT/C/12/D/13/1993: There was a finding that a state violates its non-refoulement obligation whenever it transfers persons to third countries where they "run a real risk of being returned to a country where they would be in danger of being subjected to torture." 220 Convention on the Rights of the Child (CRC), G.A. Res. 44/25, 44 UN GAOR, Supp. No. 49, U.N. Doc. A/44/49, 1989, entered into force September 2, 1990. 224 International Covenant on Civil and Political Rights (ICCPR), GA Res. 2200 A(XXI), U.N. GAOR, 21st Sess., Supp. No. 16, p. 52, U.N. Doc. A/6316, 999 U.N.T.S. 171, 1966, entered into force March 23, 1976 (ICCPR). 225 ICCPR, Article 7; CAT, Article 3; CRC, Article 37. 226 According to section 5(1) of the Border Protection Act (2001) [now see amended Divisions 12A and 13 of the Australian Migration Act 1958, especially section 245F-8A] the "restraint on...liberty" experienced by the asylum seekers on their boats and on the Australian navy ships was not detention and was not unlawful. However, the fact that there were no limits on the severity or the duration of such a "restraint...on liberty" may mean that it amounted to detention, even arbitrary detention, under international law. In the case of the Tampa, where people were held on board for ten days, for example, a dissenting Federal Judge found that the restriction on the asylum seekers' liberty had been significant enough to amount to detention. As detention, certain obligations with regard to conditions would be triggered, which were clearly not met in any of these cases - e.g. ICCPR, Article 10: the right of all persons deprived of their liberty to be "treated with humanity and with respect for the inherent dignity of the human person." 227 The Protocol against the Smuggling of Migrants by Land, Air and Sea, Supplementing the U.N. Convention against Transnational Organized Crime, Doc A./55/383 - signed by Australia on December 21, 2001, but not yet in force - obliges a Contracting State to treat smuggled migrants humanely and to protect their rights under the Protocol (Article 14), including taking special account of the needs of smuggled women and children (Article 16(3)). It also requires a Contracting State to train its patrolling officers in the humane treatment of those smuggled and the protection of their rights. 228 See International Convention on Maritime Search and Rescue (Hamburg, 27 April 1979), of which Australia is a signatory: definition of "rescue" contained in its 1998 Amendments (London, 18 May 1998). 229 The Border Protection Act (2001) "clarified" the powers of Section 245F(8) of the Migration Act 1958 and Section 185(3) of the Customs Act (1901). It retrospectively validated actions taken in relation to the Tampa and other boats after 27 August 2001. Subsections 185(3A) of the Customs Act and 245F(9) of the Migration Act now extend the power to move people on ships by force. Ancillary search powers in relation to asylum seekers were also created. 230 It remains to be tested whether a Commonwealth Ombudsman or the Australian Human Rights and Equal Opportunities Commission (HREOC) can receive complaints from people now overseas who were treated abusively by Australian Commonwealth officers within Australian territorial waters. 231 The Australian and Indonesian governments, UNHCR and IOM put this informal arrangement in place in early 2000, with the Australian government and IOM exchanging letters on the arrangements on July 20, 2000. 232 Testimony of Australian Federal Police commissioner Mick Keelty to the Senate Inquiry into a Certain Maritime Incident. Also see: "Jakarta froze boat people pact," The Age, July 12, 2002. 233 DIMIA, "Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organized Crime: Australia's Commitment," and draft of the same document sent to Human Rights Watch by DIMIA: "Australia's Commitment to Both Refugee Protection and Combating People Smuggling." 234 Mahmoud told Human Rights Watch that the police chief had ordered the attack as punishment for the actions of the single refugee men towards the local Indonesian women - "marrying" them informally but then abandoning them after sex. Human Rights Watch interview No.1, Jakarta, Indonesia, April 8, 2002. 235 Human Rights Watch interview No.1, Jakarta, Indonesia, April 8, 2002. 236 He introduced himself as the Consul, Mr Qaiss Hameed. 237 Human Rights Watch interview No.1, Jakarta, Indonesia, April 8, 2002. 238 A person who was not a refugee when she left her country, but who becomes a refugee at a later date, is called a refugee "sur place." See UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, para. 96. 239 Human Rights Watch interview with UNHCR Jakarta, April 2002. 240 Human Rights Watch interview No.6, Cisawa, Indonesia, April 11, 2002. 241 Human Rights Watch interview with UNHCR Jakarta, April 2002. 242 E-mail from refugee in Jakarta to Human Rights Watch, received July 10, 2002. 243 Originally the Intergovernmental Committee for European Migration (ICEM), it was founded in 1951 and has assisted eleven million refugees and internally displaced persons to return or resettle since that time. 244 IOM Legal Services, "IOM and Effective Respect for Migrants Rights," November 1997. 245 Statistics provided by IOM to Human Rights Watch, November 20, 2002. 246 Since May 2002, 198 Afghan asylum seekers and rejected asylum seekers have voluntarily repatriated from Indonesia. Statistics provided by UNHCR Jakarta office, as of October 31, 2002. 247 Human Rights Watch interview No.28, Mataram, Indonesia, April 18, 2002. 248 Human Rights Watch interview with IOM Chief of Mission, Jakarta, April 2002. 249 Human Rights Watch interview with IOM Chief of Mission, Jakarta, April 2002. 250 Human Rights Watch interview with IOM Geneva, June 2002. 251 U.S. Committee for Refugees, "Sea Change," February 2002, p.11. Confirmed during Human Rights Watch interview with UNHCR Jakarta, April 2002. 252 Regarding IOM's lack of a formal protection mandate, see IOM Legal Services, "IOM and Effective Respect for Migrants Rights," November 1997. IOM signed a Memorandum of Understanding with UNHCR on joint cooperation in May 1997, which agreed that IOM would increase its lead role in return of non-refugees. 253 Human Rights Watch interview with IOM Chief of Mission, Jakarta, April 2002. UNHCR's guidelines on material assistance are, by contrast, publicly available. See e.g. UNHCR guidelines on refugee women and on refugee children. 254 IOM letter to Human Rights Watch, received November 20, 2002. 255 The right to primary education regardless of immigration status is contained in Convention Against Discrimination in Education, 429 UNTS 93, entered into force May 22, 1982, to which Indonesia is a party. See also: Excom Conclusions No.47, 58, 59, 74, 77 and 84. 0 Human Rights Watch interview No.16, Mataram, Indonesia, April 15, 2002. 1 IOM Legal Services letter to Human Rights Watch, received November 20, 2002. 2 This does not include children among rejected asylum seekers, who are also under IOM care. Statistics provided by UNHCR Jakarta, October 31, 2002. 3 Indonesian immigration law provides for restrictions on foreigners' place of residence for the sake of maintaining public order, though it is unclear how this is the legal basis for the policy, given that the asylum seekers are not legally present under Indonesian law. 1992 Immigration Act, section 42 (2c) 4 UNHCR letter to Human Rights Watch, received November 20, 2002. 5 Human Rights Watch interview No.8, Cisawa, Indonesia, April 11, 2002. 6 Human Rights Watch interview No.24, Mataram, Indonesia, April 18, 2002. 7 Human Rights Watch interviews No. 34 and 35, Mataram, Indonesia, April 20, 2002. 8 Rashad was among the first group of 32 asylum seekers to repatriate to Afghanistan on May 17, 2002. Human Rights Watch interview No.18, Mataram, Indonesia, April 16, 2002. 9 Human Rights Watch interview No.32, Mataram, Indonesia, April 19, 2002. 10 Human Rights Watch interview No.20, Mataram, Indonesia, April 15, 2002. 11 IOM Headquarters e-mail to Human Rights Watch of October 7, 2002. 12 Human Rights Watch interview No.19, Mataram, Indonesia, April 16, 2002. 13 IOM Jakarta states that it has had an "open door" policy whereby those under its care could visit any day of the week, though at the time of writing this is restricted to two days a week, and that it has explained the reasons for resettlement delays to refugees in their own languages. Letter from IOM Legal Services to Human Rights Watch, received November 20, 2002. If so, these practices were not effective in so far as Human Rights Watch encountered widespread frustration about communication and incomprehension of procedures amongst those it interviewed. 14 The U.N. General Assembly has entrusted UNHCR with providing international protection to refugees, and seeking permanent solutions for them. Statute of the Office of the United Nations High Commissioner for Refugees, United National General Assembly, December 14, 1950. Where a state does not have its own refugee determination and protection system, as in Malaysia, then UNHCR performs these tasks in a surrogate capacity, though this assistance in no way diminishes the legal responsibilities of the state itself, for example in relation to non-refoulement. 15 Note that this use of a local non-governmental organization for the sake of "capacity building" is unlikely to have any long-term benefits now that the asylum seekers have ceased transiting Indonesia, and in view of the fact that BMS does not work with internally displaced persons or on any other human rights related issues. Refugees told Human Rights Watch they felt "treated like children" by BMS and that there was little real consultation on services provided. The information leaflet produced by BMS and UNHCR tells them, rather disingenuously, to "Remember that it is primarily your responsibility to arrange a [durable] solution" and lists local integration as one solution, though this is absolutely prohibited in Indonesia. In relation to the cash allowance, the leaflet also reminds them: "UNHCR's resources are extremely limited!" BMS/UNHCR, Urban Refugees, Jakarta, February 2002. 16 Human Rights Watch interview No.4, Cisawa, Indonesia, April 10, 2002. 17 See e.g. UNHCR, "Note on International Protection" (Geneva, 2000), A/AC.96/930; UNHCR, "Note on International Protection" (Geneva, 1999), A/AC.96/914; or UNHCR Excom Conclusion No. 85 (XLIX) - 1998. 18 Human Rights Watch interview with UNHCR Jakarta, April 2002. 19 Statistics supplied by UNHCR Jakarta, October 31, 2002. 20 E-mail to Human Rights Watch from asylum seeker in Mataram, August 3, 2002. 21 Human Rights Watch interview No.24, Mataram, Indonesia, April 18, 2002. 22 UNHCR, Handbook On Procedures And Criteria For Determining Refugee Status, UN Doc. HCR/1P/4/Eng/REV.2, 1979 (edited 1992). The Handbook was prepared at the request of the UNHCR Executive Committee for the guidance of governments. See Guy Goodwin-Gill, The Refugee in International Law (Oxford, 1996), p.34. It is an authoritative interpretative guide and is treated as such by governments. See, for e.g., the U.S. Supreme Court case, INS v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987). 23 The Training Module advises decision makers that they "should never forget that being recognized - or not - as a refugee will have direct implications on the life and well-being of the applicant and his or her family. This places a heavy burden of responsibility on the person conducting the interview whether or not this person is the final decision maker." See UNHCR, "Training Module on Interviewing Applicants for Refugee Status," 1995, p. iii. 24 See, e.g., UNHCR Excom Conclusions No. 71 (XLIV) - 1993 and 82 (XLVIII) - 1997. 25 The obligation of due process in asylum cases is primarily derived from Article 33(1) of the Refugee Convention. Similar concerns have been raised in previous Human Rights Watch reports, for example on the Burmese refugees interviewed by UNHCR in Malaysia. See Human Rights Watch, "Living in Limbo" (2000). 26 UNHCR, in the Handbook On Procedures And Criteria For Determining Refugee Status, para. 192 (ii), states that "[t]he applicant should receive the necessary guidance as to the procedure to be followed." 27 Human Rights Watch interview No.20, Mataram, Indonesia, April 15, 2002. 28 UNHCR, "Comments and Observations to JRS Report on UNHCR Mandate Status Determination Procedures," 1998. 29 Human Rights Watch interview No.24, Mataram, Indonesia, April 18, 2002. Like Australia, UNHCR suspended the processing of all Afghan claims for several months until early 2002, and they waited to complete all first interviews before conducting reviews of negative decisions, which left a long interval between the first and second interviews in some cases. 30 UNHCR, Handbook On Procedures And Criteria For Determining Refugee Status, para. 192. 31 Appeal to the Refugee Review Tribunal (RRT) involves filing a written appeal, and if this is not accepted then the deciding member of this relatively independent, albeit state appointed, appellate tribunal will conduct a `non-adversarial' interview during an informal hearing. After this, appeal to the Federal and High Courts is also possible, although the grounds for appeal have recently been curtailed. 32 Human Rights Watch interview, No. 33, Mataram, Indonesia, April 20, 2002. 33 Human Rights Watch interview with UNHCR Jakarta, April 2002. 34 Comments from UNHCR to Human Rights Watch, received November 20, 2002. 35 UNHCR, "Policy and Practice Regarding Urban Refugees: A Discussion Paper," October 1995. 36 Letter from UNHCR to Human Rights Watch, received November 20, 2002. 37 Aside from Australia, other resettlement countries to which the Indonesia caseload has been submitted: Burkina Faso, Canada, Chile, Denmark, Finland, Germany, the Netherlands, New Zealand, Norway, Sweden, the United Kingdom and the U.S. 38 Human Rights Watch interview with UNHCR Jakarta, April 2002. 39 Australia is also considering applications from a further 139 and states that it will consider any cases with relatives in Australia. DIMIA statistics provided to Human Rights Watch, November 20, 2002. 40 Statistics provided by UNHCR Jakarta, October 2002. 41 Human Rights Watch interview No.7, Jakarta, Indonesia, April 11, 2002. 42 Human Rights Watch interview No.4, Cisawa, Indonesia, April 10, 2002. 43 Human Rights Watch interview No.6, Cisawa, Indonesia, April 11, 2002. 44 Universal Declaration of Human Rights, G.A. res. 217A (III), UN Doc. A/810 at 71 (1948), Article 14. 45 Yazdon had his refugee status determination interview with UNHCR in January (2002). It lasted approximately forty minutes. "I was not satisfied because they did not get to the heart of my problem. They did not answer when I asked them what would happen to me if I were rejected. My life will still be in danger in Afghanistan, despite the changes, both because I am a Hazara and because the Pashtun people know the part my father played working for Hezb-i Wahdat. I do not believe there is any true authority, just two or three figureheads, with no real ability to protect the people, so I will not volunteer to return no matter what inducements they offer." Human Rights Watch interview, No. 30, Mataram, Indonesia, April 19, 2002. 46 Human Rights Watch Press Release, "Afghanistan unsafe for refugee returns: U.N. refugee agency sending `misleading' message," New York, July 23, 2002. See also: Human Rights Watch, "All Our Hopes Are Crushed: Violence and Repression in Western Afghanistan," A Human Rights Watch Report, Vol. 14, No. 7(c) - October 2002. 47 Human Rights Watch interview with IOM Chief of Mission, Jakarta, April 2002. 48 Quoted in "Government cash could remove asylum seekers," The (Melbourne) Age, May 21, 2002. 49 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. 50 See UNHCR Excom Conclusion No.85 (XIIX) - 1998 which "stresses that...it should be established that the third country will treat the asylum seeker(s) in accordance with accepted international standards, will ensure effective protection against refoulement, and will provide the asylum seeker(s) with the possibility to seek and enjoy asylum" and also Conclusion No.87 (L) - 1999 which reiterates that "notions such as... `safe third country' should be appropriately applied so as not to result in improper denial of access to asylum procedures..." 51 See above section "Interceptions at Sea - Conclusion" regarding CRC Articles 3, 19 and 22. 54 Convention Against Discrimination in Education, 429 UNTS 93, ratified by Australia on November 29, 1966 and by Indonesia on January 10, 1967. 55 Border Protection (Validation and Enforcement Powers) Act, Section 7A. 56 See E.U. Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, 2001 O.J. (L 212/12), Article 26.1 - See also, Penelope Mathew, "Refugee Protection in the Wake of the Tampa," American Journal of International Law, 96, July 2002. While no-one would suggest that the movement of asylum seekers from Australia to Nauru needed to avoid the pitfalls of ethnic cleansing which were in the minds of the Europeans, it is worth noting the value of consent in the context of any action claiming to be humanitarian in nature. There are reports that when the asylum seekers were first brought to Papua New Guinea and told they were not in Australia, many tried to hang themselves or cut themselves with glass. Ralph Calaban, local Manus resident who witnessed these violent protests: "They tried to climb the fence, hang themselves and cut themselves with glass. They then tried to pull the wire out of power points and kill themselves with that." "PNG Broke Law by Taking Manus Asylum Seekers - Foreign Correspondent Press Release, Australian Broadcasting Corporation, April 17, 2002. 57 The 1903 U.S. lease for the Guantánamo Bay Naval Base gave the U.S. total jurisdiction over it, reserving only residual sovereignty to Cuba, yet the U.S. has always argued that Guantánamo is extraterritorial and that therefore its obligations under the Immigration and Nationality Act (INA) are not engaged. This government position was upheld by the Supreme Court's decision in Sale v. Haitian Centers Council, Inc. [509 U.S.155 (1993)], which found that the interdiction of asylum seekers was based on INA powers while the asylum provisions of INA did not apply. The 11th Circuit of the Federal Appeals Court similarly found that military bases in foreign nations are not U.S. territory for the purposes of the INA [Cuban American Bar Association v Christopher - 43 F.3d 1412 11th Cir.1995]. Therefore Guantánamo is quite analogous to Australia's introduction of "excised territories" which are both within its territory and jurisdiction, but removed from certain obligations of its Migration Act. President Clinton's diversion of Guam-bound Chinese boats to Tinian Island (part of the Commonwealth of Northern Mariana Islands) in April 1999, where INS officers conducted asylum screenings but not within the statutory framework of the INA is also broadly analogous to the extraterritorial powers-without-duties role of DIMIA officials in Nauru. 58 "Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia for Cooperation in the Administration of Asylum Seekers and Related Issues." 59 Human Rights Watch interview with Department of Foreign Affairs and Trade, Canberra, May 2002. 60 Also, possibly CAT, Article 3. 62 Australia also considered sending the asylum seekers to East Timor, then under U.N. transitional administration; Fiji, where sanctions in place since the May 2000 coup were lifted as an incentive; Kiribati, Palau and Tuvulu, where the verbal request from Australia in November 2001 came only a month after Australia rebuffed a request from the Tuvaluans to accept some of their people in a special immigration program since their island is sinking under rising seas. See Oxfam Community Aid Abroad, Adrift in the Pacific, February 2002, p.21. 63 Papua New Guinea has reservations to Articles 17.1 (wage earning employment), 21 (housing), 22.1 (public education), 26 (freedom of movement), 31 (refugees unlawfully in the country of refuge), 32 (expulsion) and 34 (naturalization). 64 "Memorandum of Understanding between the Government of Australia and the Government of the Independent State of Papua New Guinea, relating to the Processing of Certain Persons, and Related Issues." 65 Letter from Human Rights Watch to Sir Michael Somare, Prime Minister of Papua New Guinea, October 3, 2002. 66 Human Rights Watch interview with DIMIA Offshore Management, May 2002. 67 In Nauru, there are two facilities: Topside holds those disembarked from HMAS Manoora and State House holds those disembarked from HMAS Tobruk. As of early August 2002, 1083 detainees remained in two facilities, making the detainees nearly 10 percent of Nauru's total population. Of these, 330 were found to be refugees and 822 had their claims rejected. Only 7 percent of Afghans and 59 percent of Iraqis were recognized. As of September 26, 428 people out of 1,157 had been recognized as refugees through the processing on Nauru. Due to resettlement and return, a total of 719 persons remained in the facilities on Nauru as of November 10. Some 500 Afghans were scheduled for repatriation in November. 68 On Manus Island in Papua New Guinea, there is only the one facility, Lombrum Naval Base, for the predominantly Iraqi detainees, at which security is somewhat higher than in Nauru. As of early August 2002, 296 detainees remained, of whom 247 were recognized refugees and 89 rejected asylum seekers. As of September 18, 89.5 percent of all asylum seekers on Manus Island had been recognized as refugees. As of September 26, 273 people out of a total of 338 claims processed there had been accepted. Due to resettlement, returns and the transfer of some rejected cases from Papua New Guinea to Nauru, 93 people remained in the facility on Manus as of November 10. 69 Statistics provided by DIMIA to Human Rights Watch, November 20, 2002. 70 Major subcontractors of IOM include Eurest Support Services, Chubb Security Pty Ltd in Nauru and Protect Security on Manus Island, Papua New Guinea. 71 The Memorandum of Understanding with Nauru lists IOM responsibilities, including: "good order and discipline of its centers," "escort" and "movement of asylum seekers" outside the facilities, and regulating who enters the facilities. 72 DIMIA Offshore Management referred to IOM actions as Australian actions, admitting that it was "very hard not to say `we'" when he meant IOM. Human Rights Watch interview with DIMIA Offshore Management, May 2002. 73 Oxfam Community Aid Abroad, "Adrift in the Pacific," February 2002, p.14: cites article in the PNG Post-Courier. 74 Letter from detainee on Nauru, with authorization for Human Rights Watch to cite. 75 Human Rights Watch with IOM Director General, Brunson McKinley, Geneva, October 2002. 76 IOM Member States recognized, in May 1995, that the organization was called upon "to work towards effective respect for human rights," and a resolution passed in November 1995 affirmed this objective to respect the human dignity and well-being of migrants, however IOM chooses not to look at the parallels between the legal conditions of detention on Nauru and Papua New Guinea and those found to be "arbitrary" by the UN Human Rights Committee on the Australian mainland. 77 Human Rights Watch interview with IOM Director General, Brunson McKinley, Geneva, October 2002. 78 Note Verbale of October 22, 2001. 79 Human Rights Watch interview with UNHCR Canberra, May 2002. 80 Different sections of DIMIA described the legal standing of these officers acting extraterritorially in different terms: one section suggested that they acted under Section 75 of the Australian Constitution (that is, a Commonwealth Warrant) but could not say which Australian statute they were there in pursuance of [Human Rights Watch interview with DIMIA Border Protection, May 2002]; another section stated categorically that they fell under the jurisdiction of the Australian Human Rights Act and thereby the Human Rights and Equal Opportunities Commission of Australia (HREOC), though this remains as yet untested [Human Rights Watch interview with DIMIA Offshore Management, May 2002]. 81 See, e.g.: Report of the UN Human Rights Committee - UNGAOR Supp 40, p.176, UN Doc A/36/40 (1981): Communication No. 52/1979 (29 July 1981), UN Doc. CCPR/C/OP/1 at 88 (1984) concerning Delia Saldias de Lopez and Sergio Ruben Lopez Burgos v. Uruguay. The Convention on the Rights of the Child, for example, applies to any child within a state party's jurisdiction, even those outside its territory. See CRC, Article 2.1. 82 The term "detention" triggers obligations to provide legal assistance and access to courts under the Constitutions of both Nauru and Papua New Guinea. However, these governments, like Australia, claim that it is not in fact detention but merely a restriction on freedom of movement defined by the terms of the "temporary entry permits" issued to the asylum seekers. See testimony from Mr Killesteyn for DIMIA to the Australian Senate Inquiry into a Certain Maritime Incident, Tuesday 16 April 2002, 812. 83 Human Rights Watch interview with DIMIA Offshore Management, May 2002. Also, letter from Frank Brennan SJ to Philip Ruddock, March 21, 2002: Quotes Ruddock's Chief of Staff, Ann Duffield, stating on 20 March 2002 that "IOM do not run and manage detention centers" - a statement which appears to be one of principle rather than just interpretation of fact. 84 Submission No.30, Senate Legal and Constitutional References Committee Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p.8. 85 Even if merely termed a restriction on freedom of movement, not detention, such a restriction is only permitted under human rights law if it is "provided by law" and "necessary to protect national security, public order, public health or morals, or the rights and freedoms of others." ICCPR Article 12.3. Any discrimination between nationals and non-nationals with regard to freedom of movement that does not meet these criteria is prohibited. Since neither Nauru nor Papua New Guinea have laws or regulations identifying their security or other specified concerns applicable to these circumstances, violating the right to freedom of movement. 86 UNHCR quoted in "Pacific Solution inconsistent with convention: UN," The Australian, August 2, 2002. 87 Letter from IOM Legal Services to Human Rights Watch, received November 20, 2002. 88 See Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) 27 (1980). With this in mind, the Court held that Italy's self-styled "special supervision" restricting the applicant, Guzzardi, a suspected mafia member, to the island of Asinara in order to prevent him committing a crime amounted to a "deprivation of liberty" under Article 5(1) of the European Convention on Human Rights. 89 See UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999. 90 Human Rights Watch interview with DIMIA Offshore Management, May 2002. 91 A man who attempted to leave the premises in April was stripped naked and held in the local jail for almost a week, according to former detainees now living in New Zealand. Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. 92 IOM has hired and is training local Nauruans in lifesaving skills so that they can help serve as escorts/guards for these excursions. By that early date, the Nauruan trainees had already had to save the lives of two drowning Afghans. 93 This information is based on Human Rights Watch interviews with DIMIA Offshore Management and with selected IOM staff who wish to remain nameless. 94 Human Rights Watch interview with Kate Durham, July 2002. 95 In March 2002, Human Rights Watch and Amnesty International requested permission from the Papua New Guinea government to conduct a site visit to the facility on Manus Island. The request was repeated several times in April. As of August 2002 no answer has been received. Australian human rights lawyers wishing to visit Nauru have received explicit refusals for visas in April and July 2002. Australian and British journalists attempting to enter the facilities and speak with the asylum seekers there have also been excluded or forced to film secretly. This reveals a fundamental resistance to independent scrutiny on the part of the governments involved and also on the part of IOM. It strongly suggests that these facilities are not "normal refugee camps." 96 Caritas Australia Submission to the Senate Select Committee on a Certain Maritime Incident. 97 The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), Principle 29 recommends regular visits by "qualified and experienced" independent observers to places of detention and the right of the detainees to communicate freely with visitors. 98 E-mail to Human Rights Watch from IOM Headquarters, October 7, 2002. 99 DIMIA Factsheet No.76 referred to "detainees" on the Pacific sites until this was pointed out to DIMIA. 100 See Womah Mukong v Cameroon, Communication No.458/1991, U.N. Doc. CCPR/C/51/D/458/1991, August 10, 1994. 101 See Report of the Working Group on Arbitrary Detention, U.N. Doc. E/CN.4/2000/4, December 28, 1999. 107 Article 5.1 of the Republic of Nauru Constitution. Note parts 5.2-5.4 relate to the rights of persons in such detention, if lawful, including right to "consult in the place in which he is detained a legal representative of his choice" 108 Article 42 of the Papua New Guinea Constitution. Note part 42.2 relates to the rights of persons in such detention, if lawful, including the right to "communicate without delay and in private...with a lawyer of his choice" and to "be given adequate opportunity to give instructions to a lawyer of his choice in the place in which he is detained." 109 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. IOM argues that during recent supervised outings the asylum seekers can visit the Nauru Civic Center's Internet café and use the Internet there for a fee. Letter from IOM Legal Services to Human Rights Watch, November 20, 2002. 110 Letter from Nauru detainee to Ms. Fiona Johnston, July 2002, forwarded by recipient to Human Rights Watch, with permission to quote. 111 See UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999. 112 These include: UNHCR Excom Conclusion No. 44 (XXXVII); UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999; The UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), including the right to receive an explanation on one's rights and how to exercise them (Principle 13), right to legal counsel (Principle 17) and the right to be visited by, and to correspond with, members of their family and others in the outside world (Principle 19); The UN Standard Minimum rules for the Administration of Juvenile Justice ("The Beijing Rules"). 114 UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999. 115 Oxfam Community Aid Abroad, "Still Drifting: Australia's Pacific Solution becomes a Pacific Nightmare," August 2002, p.15. 116 As of June 2002. By November, there were 22 unaccompanied minors on Nauru, of whom only one had been recognized as a refugee. All of these are unaccompanied only in sense of no parents - all have some adult relative and are themselves between 16-18. According to DIMIA, IOM has satisfied itself that they are properly cared for. 117 In Australia, there is a general common law duty of care held by the Immigration Minister in relation to all people in detention, ensuring their physical safety and welfare. In addition, the Minister has a special duty of guardianship in relation to unaccompanied minors, as clarified by X & Y v the Minister (1988). 118 UNHCR Guideline 6 - referring, inter alia, to CRC, Article 28, of which Nauru, Papau New Guinea and Australia are all state parties. 119 See also: DIMIA Answers to Question on Notice from the Senate Select Committee Inquiry on a Certain Maritime Incident, June 13, 2002. There are no unaccompanied children in Manus because they were taken to New Zealand right at the beginning of the arrangements. 120 Caritas Australia's Submission to the Senate Select Committee on a Certain Maritime Incident. 121 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. See also: CMI Report, p.309. 122 Interviews with DIMIA Offshore Management, May 2002, and IOM doctor, posted in Papua New Guinea, July 2002. 123 See A v Australia, U.N. doc. CCPR/C/59/D/560/1993 (Human Rights Committee, April 30, 1997). 124 It should be noted that Australia has also attempted to export mandatory detention to New Zealand, which adopted a new detention policy for the asylum seekers from the Tampa group, though the New Zealand government insists that this policy change was driven more by the events of September 11 than Australian influence [Letter from NZ Department of Labour, dated 1 May 2002]. The legal basis for this detention was Section 128 of the Immigration Act 1987, but the policy was nevertheless found to be unlawful by the New Zealand High Court in June 2002, forcing the government to institute an automatic review of each detention order after 14-20 days [Operational Instruction from Border and Investigations NZIS, issued on 19 December 2001]. Before September 11, just 5 percent of asylum seekers were detained on arrival. After the new policy was introduced, detentions soared to 94 percent and almost all asylum seekers are still being detained despite Justice Baragwanath's decision. 125 Letter from Philip Ruddock to Kenneth Roth, Executive Director, Human Rights Watch, July 2002. 126 See Senate Select Committee Inquiry on a Certain Maritime Incident Transcript, 830. 127 E.g., a recent Australian High Court decision on domestic violence and women as a social group would not be binding on the DIMIA decision makers in Nauru and Papua New Guinea. This case decided a contentious issue with regard to the element of "social group" within the Refugee Convention's refugee definition. See MIMA v Khawar [2002] HCA 14 (11 April 2002). 128 The Afghan asylum seekers on board the Tampa were encouraged to leave their belongings on the fishing boat they abandoned so most of them lost their in documents, making verification of their nationalities and other elements of their claims all the more difficult. Report by John Pace of visit to Nauru camps in November 2001. 129 E-mail from IOM staff who had worked on Nauru, received by Human Rights Watch on November 15, 2002. 130 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. New guidelines under development by UNHCR suggest that asylum seekers need to receive this information in advance of their interviews in order for it to be properly taken in and to allow them to prepare the presentation of their case. 131 In child development issues, but also in the Convention on the Rights of the Child. 132 UNHCR recommends: "A legal guardian or adviser should be appointed for unaccompanied minors." UNHCR, "Revised Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999, Guideline 6. 133 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. 134 Letter from detained Afghan asylum seeker on Nauru, July 29, 2002 (with permission for citation by Human Rights Watch) 135 Letter from UNHCR to Human Rights Watch, received November 20, 2002. 136 DIMIA letter to Susan Harris, Australian Council for Overseas Aid, dated January 8, 2002: "The basis and process upon which any legal representation might be arranged is a matter for the individuals concerned." 137 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. 138 "Nauru says no to visas for lawyers", Sydney Morning Herald, July 11, 2002 139 In certain countries, such as Egypt, Cambodia and Turkey, UNHCR has supported the provision of independent legal advice by a nongovernmental agency. There is no central policy on the issue, and has been dependent in most cases upon NGOs pushing for access rather than UNHCR actively exploring such options. 140 Australian Senate Additional Estimates Hearing, February 19 & 22, 2002: "In line with UNHCR arrangements, the process does not rely on the involvement of professional advisers to asylum seekers." 141 A group of lawyers with the Agency for Volunteer Service were permitted to counsel and write submissions for the Vietnamese in Hong Kong camps, at both first decision and appeal level. 142 In 2000-01, 67.5 percent of Afghan claims and 75.4 percent of Iraqi claims that had been rejected by the Refugee Review Tribunal succeeded on appeal to the Australian courts. It is also notable that the Refugee Review Tribunal has sent around half of the post-Taliban Afghan claims rejected by DIMIA within Australia back for reconsideration Human Rights Watch interview with (anon) Refugee Review Tribunal member, July 9, 2002. Of the 977 persons whose claims were rejected in the Pacific, 214 were subsequently found to be refugees following review. DIMIA statistics provided to Human Rights Watch, November 20, 2002. 143 See Prime Minister quoted at www.dfat.gov.au/media/tampa_pm_doorstop310801.html. 144 The U.S. accepted those recognized as refugees into its territory without making them apply for resettlement and without suggesting that other countries should take responsibility for them. Some HIV positive cases were held in detention at Guantánamo for a long time, but eventually even these people were brought into the U.S. and afforded full and equal rights with other refugees. 145 Senate Select Committee Inquiry on a Certain Maritime Incident Transcript, 816. 146 Ironically, refugees in regions of origin, those whom Australia claims the policy is supposed to prioritize, will suffer if the other resettlement countries respond to Australian requests for "responsibility sharing" and take people from the Pacific sites, since it will be done at the expense of their annual UNHCR resettlement quotas. For example, New Zealand has agreed to take a greater proportion of its resettlement cases from the Pacific region, meaning that processing of cases from Africa (mainly Ethiopia and Somalia) have already been delayed as a result. E-mail from Adele King (NZ Refugee and Migrants Service) to Human Rights Watch, May 7, 2002. The Australia government claims that it will make up for this shortfall by using its own "places" - supposedly freed by the re-direction of the intercepted asylum seekers to the Pacific - to resettle more persons from other regions. DIMIA letter to Human Rights Watch, November 20, 2002. This elaborate and costly trading of destinations may not, in light of Human Rights Watch findings, have any beneficial impact upon the causes of refugee flight or secondary movement. 147 "Even though those recognized refugees are no longer on Australia's territory, Australia's obligations under the Refugee Convention continue to be engaged until a durable solution is found." Statement by UNHCR, Submission No.30, Senate Legal and Constitutional References Committee Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p.8. 148 Quoted in "Refugees still waiting on islands," The (Melbourne) Age, September 19, 2002. 149 "Still No Vacancy for Tampa refugees," The Australian, August 24, 2002. 150 "Memorandum of Understanding between the Republic of Nauru and the Commonwealth of Australia for Cooperation in the Administration of Asylum Seekers and Related Issues." 151 Submission 44, Senate Foreign Affairs, Defence and Trade Inquiry into Australia's Relationship with Papua New Guinea and Other Pacific Island Countries, p.34. 152 As of September 2002. See CMI Report, p.321. 153 Most of these persons have been granted either three or five year visas. The five year visas are available to people who had not landed on one of the excised territories. A few people have also been resettled on temporary "humanitarian stay visas" which are not dependent on Convention refugee status and are of a duration to be determined by the Immigration Minister. CMI Report, p.xliv. 154 DIMIA Statistics, received by Human Rights Watch on November 20, 2002. 155 DIMIA Press Release, "Minister announces humanitarian program intake for 2002-03." 156 DIMIA Answers to Question on Notice from the Senate Select Committee Inquiry on a Certain Maritime Incident, 13 June 2002 157 "Pressure to take refugees with tie to Australia," The Canberra Times, June 18, 2002. 158 "Pacific Solution refugees arrive in Australia," Australian Broadcasting Corporation, July 31, 2002. 159 UNHCR has expressed concern with regard to these human rights violations. Submission No. 30, Senate Legal and Constitutional References Committee Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p.7 160 UNHCR RO Canberra statement to the Senate Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p.48. 161 DIMIA Press Release, May 16, 2002. 162 DIMIA Statistics, received by Human Rights Watch on November 20, 2002. 163 Human Rights Watch interview with IOM Executive Director, Brunson McKinley, Geneva, October 2002. 164 "IOM Policy concerning its assistance to unsuccessful asylum seekers and irregular migrants returning to their country of origin," 91st Session, March 29, 1996, para 13, explains that IOM "considers that voluntariness exists when the migrant's free will is expressed at least through the absence of refusal to return, e.g. by not resisting boarding transportation or not otherwise manifesting disagreement." - This is a very pragmatic definition, but one which unfortunately puts emphasis on the resistance of the returnee rather than on IOM ensuring certain preconditions are met. The emphasis is on behavior in the moments before boarding a plane, rather than on the freedom of the decision-making process that leads up to signing a statement of volition. 165 Human Rights Watch interviews with UNHCR and DIMIA Offshore Management, May 2002. 166 "IOM Return Policy and Programmes: A Contribution to Combating Irregular Migration," 74th Session, MC/INF/236, 5 November 1997. Note the distinction between refugee repatriations and "return programmes for irregular transit migrants." 167 It is possible, however, that a rejected asylum seeker on Manus Island truly desperate to prevent his deportation could try to claim asylum from Papua New Guinea as a signatory of the Refugee Convention, even though they have no national determination procedures to deal with this eventuality. See Question raised at Senate Legal and Constitutional Committee, February 22, 2002. 168 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. Note that for several months the brothers were kept in separate camps on Nauru despite their pleas to IOM to be held together. 169 Human Rights Watch interview No.50 with ex-detainees of Nauru now resettled in New Zealand, October 24, 2002. 170 By the Migration Legislation Amendment (Transitional Movement) Act 2002. 171 The Australian Department of Foreign Affairs (DFAT) speaks only of commitment to the "expectations" of the Pacific states that the people will not remain on their territory after refugee status determination. The Memorandum of Understanding states that "Australia will ensure that no persons will be left behind in Nauru." And "Australia will ensure that appropriate transportation and travel documents are arranged for all persons whose status has been determined." In January 2002 the Australian Immigration Minister spoke of Nauru being cleared of the asylum seekers by May 2002, and President Harris reported that this was the deal he had struck with his own landowners. See Oxfam Community Aid Abroad Submission to the Senate Select Committee Inquiry on a Certain Maritime Incident. 172 UNHCR Canberra, January 2002 statement. 173 Letter from Philip Ruddock to Kenneth Roth, Executive Director, Human Rights Watch, July 2002. See also: DIMIA Answers to Question on Notice from the Senate Select Committee Inquiry on a Certain Maritime Incident, 13 June 2002. 174 "Mandatory detention" as applied in Australia means the automatic detention of every unauthorized entrant, including asylum seekers for the duration of their application procedures and appeals, without any effective means of appeal or review. All illegal entrants and overstayers are detained, regardless of circumstances or likelihood of absconding. The Australian government now claims that only detention on the mainland is mandatory, whereas detention on "excised offshore places" is discretionary because the person arriving there would only be detained if not moved to an "offshore processing center" in Nauru or Papua New Guinea, which they do not categorize as detention. DIMIA, "Unauthorized Arrivals and Detention: Information Paper," February 2002. 175 In 1994, the Australian government stated: "We want to send a very clear message to anyone who is intending to come to Australia illegally by boat with no valid claim that the doors are closed." Quoted in Fr Frank Brennan SJ, "Australia's Refugee Policy - Facts, Needs and Limits," 2002, p.3. 176 Human Rights Watch visited Villawood Detention Centre, near Sydney, in April 2002 and also spoke with approximately a dozen former detainees in Australia, now recognized as refugees, as well as with asylum lawyers who have worked for many years inside detention centers. For more in depth research and commentary upon Australia's mandatory detention regime, however, Human Rights Watch refers to Amnesty International's 1998 report, "A Continuing Shame - The Mandatory Detention of Asylum Seekers" (AUS/POL/REF); "For Those Who've Come Across the Seas" (May 1998) by the Human Rights and Equal Opportunities Commission of Australia, in conjunction with more recent information available on HREOC's website; "Standards of Accountability in the Administration of Prisons and Immigration Detention Centres," a speech by Prof. Richard Harding, Inspector of Custodial Services of Western Australia, Perth, 30 October 2001; and "Damaging Kids: Children in DIMIA Immigration Detention Centres" by Western Young People's Independent Network and the Catholic Commission for Justice Development and Peace, Melbourne, May 2002. See also "Human Rights and Immigration Detention in Australia," Report of Justice P.N. Bhagwati, Regional Advisor for Asia and the Pacific of the UNHCHR, based on his mission to Australia, 24 May to 2 June 2002. 177 Amnesty International Australia, Factsheet 09 - Mandatory Detention of Asylum Seekers. 178 During 2001-02, a total of 1,486 asylum-seeking children spent time in detention. 179 In 2000-01, 7,993 "unlawful non-citizens" were held in immigration detention, with the number in facilities at any one time at around 3,000. The top three nationalities were Afghan 2,196 or 27.7 percent, Iraqi 1,034 or 13.2 percent, and Iranian 545 or 7 percent. As of March 1, 2002, 415 Iraqis, 399 Afghans, and 368 Iranians remained in onshore detention. DIMIA table provided to the Australian Senate Additional Estimates Hearing. 180 CRC, Article 37(b). See also: Rule 2 of the UN Rules for the Protection of Juveniles Deprived of their Liberty, and Rule 179(c) of the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules). Note: "Bridging visas" are the only means of release, by non-reviewable and non-compellable discretion of the Immigration Minister. They can be applied to persons from one of five "vulnerable groups," but in practice they are rarely used. These were introduced in 1994 to answer criticisms that the regime was too rigid, but still falls far short of human rights law requirements or UNHCR guidelines. 181 See A v Australia, U.N. doc. CCPR/C/59/D/560/1993 (Human Rights Committee, April 30, 1997). See also, more recently, a similar decision in Mr.C v Australia, U.N. doc CCPR/C/76/D/900/1999 (Human Rights Committee, November 5, 2002). 182 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) concerning 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) concerning 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." The UN Working Group on Arbitrary Detention similarly states that "the detaining authorities must assess a compelling need to detain that is based on the personal history of each asylum seeker" and that "an absolute maximum duration for the detention of asylum seekers should be specified by law." UN Working Group on Arbitrary Detention, "Report on the visit of the WGAD to the United Kingdom on the Issue of Immigrants and Asylum Seekers," UN Doc E/CN.4/1999/63/Add.3 (December 18, 1998) and the Human Rights Committee as a whole has made similar comments [General Comment 8, UN Human Rights Committee, 16th session]. 183 Inter alia: UNHCR, "Guidelines on Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999 and UNHCR Excom Conclusion No. 44 (XXXVII). The fact that Australian policy does not conform to UNHCR guidelines in terms of either the permissible grounds for detention, the procedural safeguards or the conditions of detention is explained in "Australia's detention policy assessed against UNHCR's Guidelines on Detention," UNHCR Newsletter No.1/2002 - UNHCR Regional Office for Australia, New Zealand, Papua New Guinea and the South Pacific. See also, UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988). 184 The scope for this particular abuse has been somewhat curtailed by the Federal Court of Australia decision in Al Mazri v MIMA [2002] FCA 1009 (August 15, 2002) and subsequent case law. 185 Commonwealth Ombudsman, "Report of an Own Motion Investigation into the Department of Immigration and Multicultural Affairs' Immigration Detention Centres," March 2001: "immigration detainees appear to have lesser rights and are held in an environment which appears to involve a weaker accountability framework" than criminals in correctional facilities. 186 E-mail to Human Rights Watch from visitor to Baxter Immigration Detention Facility, October 2002. 187 When questioned about this case, DIMIA told Human Rights Watch that that level of educational provision was "just the same as a school in a small rural Australian town" Human Rights Watch interview with DIMIA, May 2002. However, the local area educational inspector has stated that the level of provision inside Villawood falls far below any normal standard and urges DIMIA to let the detainee children attend the local school just across the road. 188 Human Rights Watch interview, No. 38, Villawood Detention Centre, Sydney, April 6, 2002. 189 Human Rights Watch interview with DIMIA, May 2002. 190 "Howard Flies Refugees In - Quietly," The Courier Mail, August 1, 2002: Reference to 56 people remaining in detention on Christmas Island. See Australian Human Rights and Equal Opportunities Commission (HREOC) press release on Christmas Island in December 2001: "From interviews with detainees in the Sports Hall [on Christmas Island] it was clear to the HREOC officers that detainees have not been informed of the legal rights which accrue to everyone who has been taken into detention and deprived of their liberty, such as the right to contact appropriate consular and diplomatic representatives and to obtain legal advice about their situation. They also had not been informed of the changes to the Migration Act 1958 and what this might mean..." 191 "Offshore system splits refugee families: UN," Sydney Morning Herald, August 7, 2002. 192 DIMIA letter to Human Rights Watch, received November 20, 2002. See Section 256 of the Migration Act 1958. 193 Letter from Philip Ruddock to Kenneth Roth, Executive Director, Human Rights Watch, July 2002. 194 See Amuur v France, European Court of Human Rights (1996) 22 EHRR 533. 195 See Womah Mukong v Cameroon, Communication No.458/1991, U.N. Doc. CCPR/C/51/D/458/1991, August 10, 1994. 196 "The visa regime changes in the new legislation are designed to address very deliberately the phenomenon of secondary movement of refugees." DIMIA, "Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organized Crime: Australia's Commitment," 2001. 197 See e.g., Excom Conclusions No.15 (XXX) - 1979, No.19 (XXXI) - 1980, No.21 (XXXII) - 1981, No.23 (XXXII) - 1981, No.68 (XLIII) - 1992, No.71 (XLIV) - 1993 and No.74 (XLV) - 1994. 198 Amendments to Migration Regulations, Part 4 Protection Visas, subclass 785. In fact in operation since 24 August 1999 - Of 504 boat people who arrived between August-October 1999, 439 were recognized as Convention refugees but only 25 were granted permanent protection visas. This was achieved by freezing the processing of the Afghan claims until after the new legislation had been passed. See Peter Mares, Borderline (Sydney, 2001), p.25. 200 It is the long experience of settlement services in Australia, the U.S. and Europe that refugees who are held in detention for more than a few weeks after arrival find it much harder to integrate after recognition. The introduction of TPVs for all former-detainees in 1999 did exactly the opposite - it denied certain support services to former detainees and prevented them from starting new lives with certainty. 201 "Australia May Send Refugees Home as Temporary Visas Expire," Australian Associated Press, June 11, 2002. 202 Schedule 2, Migration Regulations 1994 (as amended). 203 Regulation 866.215 of the Migration Regulations 1994 (as amended). 204 The "seven-day rule" creates a perverse incentive to transit first countries of asylum as quickly as possible (in other words, under seven days) rather than attempting to seek effective protection there - an outcome diametrically opposed to the Australian government's stated objective. 205 Previously, holders of post-1999 TPVs were told that they had to apply for a permanent protection visa within thirty months, but they were also told that their application would be considered no sooner than thirty months and that it would cost them A$30 to lodge the application, so some people postponed doing so. Most, however, did lodge applications because they needed to do so in order to register for Medicare. Now that the law has changed without notification, those who did not apply for a permanent visa are barred from doing so, and so feel very bitter about this. Of the 6,535 people released from detention onto TPVs, 2,785 had not applied for permanent protection visas before the cut-off date of September 27, 2001. See National Council of Churches in Australia (NCCA) Statement of Concern, Exec. Doc.No.6.3(B) 1/3/2. 207 Australia's refugee appeal body, the Refugee Review Tribunal, may review this type of decision [Robert Illingworth (DIMIA) to the Senate Legal and Constitutional Committee, February 2002] but the Australian courts may not, except in very exceptional circumstances. The "privative clause" of the Judicial Review Act 2001 has excluded effective judicial review in nearly all immigration-related cases. The government is unable to remove the original jurisdiction of the High Court, but this merely throws an additional burden onto it, especially since asylum seekers without legal aid will have to go before it without representation. 208 Migration Amendment (Excision from Migration and Consequential Provisions) Act 2001. 209 The Minister will consider the applicant's connection with Australia, the extent of the persecution or discrimination, the extent of the "risk" faced by the applicant, Australia's capacity to provide asylum and "(e) whether there is any suitable country available, other than Australia, that can provide for the applicant's stay and protection from persecution, discrimination, victimization, harassment or serious abuse." The applicant also has to be no threat or prejudice to national security or interests, and meet government criteria relating to character and public health. 211 In this way, the people on Nauru and PNG can be divided into two groups ("offshore entry persons" and others) who are eligible for different levels of protection under Australian law. The intention is presumably that those who did not even attempt to enter Australia illegally are rewarded with an extra two years' worth of protection. In practice, the distinction relies upon chance events relating to the physical condition and position of vessels at sea. 212 Human Rights Watch interview with UNHCR Canberra, July 2002. 213 However, in a meeting with Human Rights Watch in October 2002, the Australian Minister for Immigration stated that he would be very reluctant to exercise this discretion: "The reason for the rigidity is that if you expressly provide a broad based discretion to officers, the situation unwinds that it becomes a general waiver for everybody." When confronted with one of the cases showing strong reasons for involuntary secondary movement given earlier in this report, Mr Ruddock refused to state whether such a case would, in principle, meet his standard of a "compelling" exception to the "seven day rule." 214 This latter residual right is not really an option for refugees who will be denied legal aid (under the Immigration Advice and Application Assistance Scheme (IAAAS)) to challenge such a decision. Refugees, especially those who have been denied access to English classes because they are TPV holders, are unlikely to be able to present the facts of their cases to either the Minister or the High Court in a legally persuasive form, and there will be few relevant facts on their files since initial refugee interviews usually were not focused on conditions in countries of asylum or transit. Nor will there be any way for Parliament or any other independent body to scrutinize the countries deemed by DIMIA to have offered effective protection. 215 Due to recent curtailment of judicial review, Australian courts now may be precluded from interpreting such terms as "effective protection" and "reside" and DIMIA told Human Rights Watch that it had no intention of issuing interpretative guidance on such matters to decision makers. Human Rights Watch interview with DIMIA, May 2002. 216 UNHCR, "Guidelines and Applicable Criteria and Standards relating to the Detention of Asylum Seekers," February 1999, para 4. 217 DIMIA statement on "Reception," 3rd Meeting, Track 3 of UNHCR Global Consultations, 27-28 September 2001. 218 Human Rights Watch interview with DIMIA, May 2002. 219 Submission No.30, Senate Legal and Constitutional References Committee Inquiry into the Migration Legislation Amendment (Further Border Protection Measures) Bill 2002, p.5. 220 Prolonged restrictions on the right to family reunion under the temporary protection regime may mean that children reach the age of maturity and therefore become disqualified as a dependent, even if the visa holder is one of the lucky few later able to pass the "seven day rule" and gain a permanent visa. 221 A number of international instruments stress the fundamental importance of family unity. See, e.g.: Convention on the Rights of the Child, entered into force Sept. 2, 1990, 1577 U.N.T.S. 3, Article 10, para. 3 ("applications by a child or his or her parents to enter or leave a State Party for the purpose of family reunification shall be dealt with by States Parties in a positive, humane and expeditious manner"); International Covenant on Civil and Political Rights, entered into force Mar. 23, 1976, 999 U.N.T.S. 171, Article 23, para. 1 (`The family is the natural and fundamental group unit of society and is entitled to protection by society and the State."). See also: UNHCR Excom Conclusions No.1 (XXVI) - 1975 para (f), No.9 (XXVIII) - 1977, No.24 (XXXII) - 1981, No.84 (XLVIII) - 1977, No.85 (XLIX) - 1998 paras (u)-(x), and No.88 (L) - 1999. 222 UNHCR, "Guidelines on Reunification of Refugee Families," 1983, para 9(d). 223 Torture and trauma counselors state that most of their TPV clients need to use their counseling sessions to deal with the ordeal of ongoing family separation. Human Rights Watch interview with STARTTS counselors, Melbourne, April 2002. 224 DIMIA could not produce this figure at the request of Human Rights Watch in May 2002, but acknowledged that the impression of a high proportion was probably correct. Their explanation of this, however, was that it was a ploy on the part of "irregular migrants" to try to avoid detention by bringing their children. 225 See DIMIA Factsheet No.81. 226 See, e.g., Human Rights Watch interviews Nos.6, 11 and 16. 227 See, e.g., An elderly Afghan woman, stranded in Indonesia, has a husband, daughter and son who are all refugees in Australia. The daughter is an Australian citizen who has lived there for ten years, while the husband is only on a Temporary Protection Visa. Human Rights Watch interview, No. 14, Mataram, Indonesia, April 15, 2002. See also: A woman whose parents, grandparents and siblings are all living in Sydney since fleeing from Afghanistan six years ago. Her mother has twice applied for her to come to Australia legally, via the family reunion channel, but her applications were rejected without explanation, pushing her daughter to attempt to enter illegally. Human Rights Watch interview, No. 31, Mataram, Indonesia, April 19, 2002. 228 Both offshore TPV subclasses only allow entry on one occasion, precluding any travel overseas for the visa holder (clauses 447.511 and 451.511). 229 Australia had a reservation entered to the Refugee Convention with regard to Article 28 until as late as 1971. 230 DIMIA, "Unauthorised Arrivals and Detention: Information Paper," February 2002, p.10. 231 TPV holders cannot access mainstream social welfare payments but are given a Special Benefit which is paid at a substantially reduced rate; they are given no access to state-subsidized English language classes like other refugees; nor to the Migrant Resource Centers which provide orientation and assistance with finding employment to permanent refugees. They are forced to pay overseas student fees for higher education. Though they qualify for rent assistance and can apply for emergency or other public housing, they are not eligible, like other refugees, for assistance with the initial costs of setting up a household. 232 Catholic Commission for Justice Development and Peace, "Forgotten People - Asylum in Australia," Discussion Paper No.10, Melbourne, February 2001. 233 Such groups also shoulder the burden of caring for asylum seekers (mostly air arrivals) in the community who are denied social security. See Hotham Mission Asylum Seeker Project, "Evaluation & Report Feb 2000-Feb 2002," which refers to having to deal with the vast numbers of TPV releasees who have no access to public housing support services and were often left in front of back-packer hostels with only enough money for a few days' accommodation. 234 Family and Community Services Legislation Amendment (Special Benefit Activity Test) Bill 2002, amending the Australian Social Security Act 1991. 235 UNHCR has observed: "[I]f the link between asylum and solutions is lost, a refugee is condemned to a lifetime of marginalization and dependency." UNHCR, "Policy and Practice Regarding Urban Refugees: A Discussion Paper," October 1995. 236 EU Council Directive 2001/55/EC of 20 July 2001 on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof. 238 The "cessation clauses" in the Refugee Convention define conditions when refugee protection is no longer needed, while its "exclusion clauses" define when an individual does not deserve protection. 239 DIMIA believes the procedure to be directly analogous, however: "There is no reason why a State should not be able to require a refugee to re-establish their need for protection - indeed the Convention clearly envisages this with the inclusion of Article 1C, the cessation provision. It is reasonable in the context of determining whether the durable solution of local integration will be offered, as is the test as to whether the refugee made an unnecessary secondary movement." Letter from DIMIA to Human Rights Watch, received November 20, 2002. 240 The perpetual insecurity is not dissimilar from that of the eighteen refugees (mostly Ambonese) in Australia on "safe haven visas" which have been periodically extended seven times since being granted on April 7, 2000. 241 Human Rights Watch interview, No. 42, Sydney, Australia, April 21, 2002. 242 DIMIA statistics provided to the Australian Senate Legal & Constitutional Committee, February 2002 243 Human Rights Watch interview, No. 43, Sydney, Australia, April 21, 2002. 244 Human Rights Watch was told by one New Zealand refugee lawyer that she has dealt with approximately six successful claims from Algerians who have transited Australia in the past two years, as well as similar claimants from Iraq and Somalia. This is possible because, as yet, there is no domestic legislation in New Zealand relating to either the "safe third country" or "secondary movement" concepts. 245 With regard to people turning down the cash reintegration package: "They may think that, if they wait, in some way we will allow them to stay, and that won't be happening." Quoted in "Ruddock cash offer to get rid of Afghans", Sydney Morning Herald, May 24, 2002. Philip Ruddock has also stated that there "will come a time when forced returns will occur." "Afghans face forced return," The (Melbourne) Age, June 16, 2002. 246 Human Rights Watch interview, No. 41, Sydney, Australia, April 21, 2002. 247 See Excom Conclusion No.69 (XLIII) - 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], which identify some relevant indicators for determining whether this is the case, including: democratic elections, significant reforms to the legal and social structure, amnesties, repeal of oppressive laws, dismantling of repressive security forces, general respect for human rights (the right to life, to liberty of the person, to non-discrimination, to freedom of expression, assembly and association, to fair trial, independence of the judiciary and access to courts, etc). There should be a functioning governing authority and administration, infrastructure sufficient to support basic livelihood and guarantees of basic physical security for the foreseeable future. 248 UNHCR, "Handbook on Voluntary Repatriation," 1996. 249 See Refugee Convention, Article 1C, clauses (5) and (6). DIMIA suggests the proviso contained in these clauses applies only to those determined to be refugees before 1951, specifically Holocaust survivors, and ignores the guidance of the UNHCR Handbook on Refugee Status Determination (paragraph 136) which suggests that this proviso can apply to other refugees today who have suffered particularly gross human rights violations. DIMIA, Interpreting the Refugees Convention - an Australian contribution (Canberra, 2002), pp.16-17. The Immigration Minister retains his discretion to waive the TPV rule in such cases, but DIMIA has expressed the view that such cases would be extremely rare. Human Rights Watch interview with DIMIA, May 2002. 250 Human Rights Watch interview, No. 16, Mataram, Indonesia, April 15, 2002. 251 DIMIA, Refugee and Humanitarian Issues: Australia's Response (Canberra, 2001).
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