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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
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