II. CONCLUSIONS AND RECOMMENDATIONS
To the Government of Australia
· Cease pushing back intercepted asylum seekers. All persons who enter Australia's territorial waters should have the opportunity to apply for asylum under Australian law. Australia should stop trying to push asylum seekers back to Indonesia or other states in the region where effective protection cannot be ensured.
· Do not mistreat people on board unauthorized vessels that are intercepted or rescued. Australia should ensure that the treatment of those on board fully complies with its international human rights and refugee protection obligations, as well as international maritime law. Special attention should be given to the needs of women and children. Any officials using unnecessary force or otherwise subjecting those on board to any form of cruel, inhuman, or degrading treatment should be disciplined or prosecuted as appropriate. The conduct of past interception operations should become the subject of further independent investigation, so that perpetrators of human rights abuses can be held to account.
· Cease arbitrary detention of refugees and rejected asylum seekers in Nauru and Papua New Guinea.
· Recognize special responsibility toward refugees in the Pacific states and in Indonesia, and offer resettlement places and family reunification accordingly. Australia should provide secure legal status that affords those resettled from these countries all the rights to which they are entitled under the Refugee Convention. Australia should offer special humanitarian visas to rejected asylum seekers who cannot be returned to their countries of origin until their return is possible.
· Abandon the policies of territorial "excision" and detention on excised territories. All asylum seekers present on any part of Australian territory should be able to file a claim for asylum and have full access to legal assistance and community support. Family members should not be kept apart while these claims are processed.
· End detention under arbitrary and inhumane conditions. Australia should follow UNHCR guidance, which states that asylum seekers should not be detained, except in exceptional circumstances. Detention should not be used to deter secondary or unauthorized movements of refugees to Australia. All asylum seekers, including those held on Christmas Island or other offshore or excised sites, should have access to independent legal counsel.
· Allow international and other impartial monitoring of detention centers. If the government persists in detaining asylum seekers on excised territories such as Christmas Island, it should, for example, invite the U.N. Working Group on Arbitrary Detention to investigate detention conditions there. Asylum seekers in such centers should have access to an independent review or appeal mechanism, both for their asylum decisions and for challenges to their detention.
· Dismantle the hierarchy of refugee protection visas, in which temporary protection is used punitively. As Australia's Temporary Protection Visas expire, recognized refugees should not be required to repeat the status determination process. Every refugee should be provided with an effective opportunity to rebut the presumption that another country previously afforded him or her effective protection.
· Use temporary protection only as an instrument of prima facie recognition in mass influx situations. In accordance with international practice, all temporary protection for refugees must be limited in duration, and be consistent with the rights afforded under the Refugee Convention. Refugees must not be indefinitely denied the right to integrate into new societies if they are unable to return to their country of origin. The government must take all appropriate measures to assist refugee children be reunited with their families.
· Ensure that financial or technical assistance to other countries for the purpose of strengthening border control and combating people-smuggling includes assistance and training in refugee law and refugee protection. Australia should more vigorously pursue policies that support first countries of asylum and that are directed toward resolving the root causes of displacement around the world.
· Do not force refugees to return home and refrain from actively promoting the return of refugees or asylum seekers unless and until there are fundamental, durable and effective changes of circumstances in countries of origin, as acknowledged by UNHCR and other international bodies, and until the infrastructure and security conditions are put in place to receive them. Rejected asylum seekers should be granted special, interim humanitarian visas until their return under conditions of safety and dignity becomes possible.
To the International Organization for Migration (IOM)
· Cease managing detention centers, such as those on Nauru and on Manus Island, Papua New Guinea, where detention is arbitrary and contrary to international standards for the treatment of asylum seekers.
· Continue to elaborate joint principles, with UNHCR, for demarking UNHCR's and IOM's respective areas of work so that IOM operations do not impinge upon UNHCR's protection mandate. IOM should refrain from having a management or supervisory role in situations where substantial numbers of asylum seekers have not obtained effective protection. IOM should defer to UNHCR guidance in identifying such situations and in deciding whether or not to undertake any proposed operation involving "mixed flows" of refugees and migrants.
· Establish transparent standards and guidelines for field offices, grounded in human rights law, on reception and assistance of asylum seekers and refugees. These guidelines should cover the level of material assistance; access to legal advice, access to family tracing services; meeting the needs and respecting the rights of women, children and other vulnerable groups, including torture survivors; and advocacy for the release of asylum seekers detained as illegal migrants in transit countries.
· Diversify funding for each program among a range of its member states, avoiding situations where a single state or group of states funds a program in which they have a vested interest in the program's deterrence of refugee movements. Interception and interdiction operations are frequently of this character, often interfering with the fundamental right to seek asylum.
· Take immediate steps to examine and improve communications with asylum seekers, refugees awaiting resettlement, and rejected asylum seekers in Indonesia and the Pacific sites. IOM communication policies should include greater emphasis on the participation and empowerment of such persons in all decisions affecting their lives.
· Ensure the right of education for all children, regardless of immigration status, in all of the centers IOM manages.
· Establish effective and confidential complaint mechanisms to ensure that people being assisted can communicate complaints or report unreasonable staff behavior, without fear of reprisal or discrimination.
To the UN High Commissioner for Refugees (UNHCR)
· Ensure that policies on secondary movements, including those of urban refugees within regions of origin, are consistent with the principle that no refugee should be penalized without a fair opportunity to explain why they moved.
· Educate the public on the compelling human rights reasons for secondary movements by refugees. UNHCR and its member states should ensure the right of refugees to seek effective protection, not only from their persecutors, but also from unnecessarily severe or unduly prolonged restrictions on their fundamental human rights.
· Issue more explicit and prominent public statements that UNHCR's presence in a particular country and/or its work under its mandate should never be taken as a sufficient measure of effective protection. UNHCR should demand a retraction whenever Australia or any other government bases domestic policy upon this false premise.
· Work with IOM to bring greater clarity to the organizations' respective roles. UNHCR should act as an official adviser to IOM on decisions to undertake operations that in any way affect the right to seek asylum, and its advice should be followed as a general rule.
· Significantly improve communications with refugees and asylum seekers in Indonesia, based on the need for greater consultation with and trust of those whom UNHCR is mandated to protect. UNHCR needs to better explain reasons for delays in resettlement selection and processing to refugees.
· Provide all asylum seekers undergoing status determination with written information in their own language on: i) the legal standards to be applied; ii) a realistic indicative timetable for each stage of the determination process; and iii) when applicable, detailed reasons for rejection. For purposes of accountability, both the asylum seeker and the officer conducting the interview should sign this written information indicating that it was transmitted and received.
· Explore strategies for having independent legal advisers, trained in refugee law, assist those undergoing refugee status determinations in Indonesia. In the absence of such independent advice, UNHCR Jakarta should make greater efforts to ensure that all asylum seekers are fully aware of the criteria and information on which decisions are based and the grounds for any rejection of their asylum claim.
· Provide for independent appeal of refugee status determinations - outside the office in which the first decision is taken. Member states should significantly increase the resources provided to UNHCR for its refugee status determination procedures in order to ensure that they can be conducted with greater fairness and consistency.
· Develop future strategies to address secondary movements to and within the Asia-Pacific region that focus on the human rights and refugee protection-related causes of such movements.
To the Governments of Nauru and Papua New Guinea
· Terminate agreements made with Australia, which form the basis for the "Pacific Solution" and thereby end the arbitrary detention of asylum seekers, refugees and rejected asylum seekers on their territories, as well as collaboration with Australia's policy of coerced transfer of such persons across borders.
· As a short-term measure, facilitate international and other impartial monitoring of detention centers. The U.N. Working Group on Arbitrary Detention, for example, should be invited to investigate conditions of detention in such locations. Detainees should have access to an independent review or appeal mechanism challenging the necessity of their detention.
To the International Community
· States and intergovernmental organization should affirm that, given the current failings of refugee protection in many countries of first asylum, large numbers of refugees have a legitimate need to move beyond their own regions in search of effective protection.
· States and intergovernmental organizations should acknowledge more frequently that a country may continue to generate persons fleeing persecution despite the end of an armed conflict or a change in government (as in Afghanistan), and that often refugees continue to fear persecution at home despite such changed circumstances.
· Other asylum states should protest Australia's unilateral deterrence policy in bilateral and multilateral for a such as the Commission on Human Rights and the UNHCR Executive Committee, both as human rights violations and as partial abdication of its responsibility to protect refugees.
· Other asylum states should reject Australia's ongoing attempts to export its policies, which have resulted in human rights violations, and its attempts to justify such deterrence by overly restrictive interpretations of international refugee law.
· U.N. treaty bodies and special procedures should examine human rights violations that arise in or as a consequence of Australian policy and make appropriate recommendations.
· The High Commissioner for Human Rights should consult with the High Commissioner for Refugees on human rights implications of Australian asylum policy and develop a joint high-level intervention.
· Other asylum states should urge the Australian government to accept or facilitate international monitoring of detention facilities in Australia, Nauru, and Papua New Guinea to ensure that conditions within such facilities at least conform to relevant UN standards.
· Should punitive measures or returns to countries of first asylum be imposed on those who have made secondary movements, then governments should accord every individual the right to rebut the presumption - in a procedure that provides all due process protections - that he or she was previously able to seek and enjoy effective protection in another country.
· Governments that contract with IOM or any other independent agency should recognize that they remain bound by their obligations under international human right law.
|