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IV. WHY REFUGEES FLEE THEIR OWN REGIONS

Deteriorating refugee protection
The Australian government justifies its restrictive entry policies by arguing that refugees coming to Australia could and should have sought protection in the country to which they first fled. In its interviews with refugees in Indonesia and Australia, Human Rights Watch found that in many cases this was impossible. Refugees who had been living in Iran, Pakistan, Syria and Jordan described why they were not safe in these countries and how their basic rights were violated on a daily basis.44 For many, the lack of legal status, severe restrictions on employment and freedom of movement, denial of access to health care, education and housing, combined with constant risks of arrest, detention and deportation, made survival in countries of first asylum extremely precarious.

Iran
Many of the refugees who fled to Australia had previously spent several years, and in some cases most of their lives, living as refugees in Iran. Prior to September 2001, Iran hosted some 2.3 million Afghan refugees and some 300-400,000 Iraqi refugees.45 The vast majority lived in urban areas - the Afghans predominantly in the two eastern Iranian provinces bordering Afghanistan, and the Iraqis mostly in Shiraz, in the south, and Qom, near Tehran.

In pre-revolutionary times, refugees in Iran were issued "white booklets" providing entitlement to a number of social and economic benefits. After the Islamic Revolution in 1980, these booklets were issued only rarely, and even then to highly educated or prominent refugees. The Ministry of the Interior provided other Iraqis and Afghans with residence permits calling them "involuntary migrants." In 1993, the Ministry began to issue newly arriving Afghans with temporary registration cards, which presumed their imminent repatriation. By 1995 the Iranian authorities had restricted refugees' entitlements to education, medical care and food rations. They declined to register new arrivals, creating a large undocumented refugee population.46

President Mohammad Khatami was elected in 1997 on a platform of "Iran is for Iranians" and his government introduced even more hostile policies towards refugees, particularly ethnic Tajiks and Hazaras.47 The Afghans' temporary registration cards were declared invalid, turning this refugee population into "illegal aliens" liable for deportation. Khatami's labor ministry also denied refugees' access to all but the most menial forms of employment. The laws against employing refugees were enforced only sporadically until 1999, when a more systematic crackdown began. The government also set deadlines for refugees to leave the country and attempted to confine refugees to camps and designated residential areas, which were viewed by many refugees as staging points for forced deportations. The first reports of forced returns to Iraq were confirmed in July 1999 and the U.S. Committee for Refugees has estimated that some 100,000 Afghans were forcibly returned to Afghanistan that year.48

However, it was the introduction of draconian new laws in April 2000 made life untenable for refugees in Iran. "Article 48," contained in an annex to the government's five-year development plan, instructed the Ministry of Interior to expel all foreigners without work permits whose lives would not be threatened upon return to their country of origin. A registration drive by the Iranian government followed, between January-April 2001, but the new registration documents brought no status or entitlements to assistance and lifted none of the restrictions on refugees' social and economic rights. There was, however, a commitment given by the Iranian government to refrain from forcible return of registered foreigners to Afghanistan.49

In June 2001, with the reelection of President Khatami, the restrictions on access to employment were further tightened. All refugees except those with the old "white booklet" were classified as illegal workers and subject to expulsion under "Article 48." A new policy of fining and imprisoning employers of undocumented workers was introduced. Many refugees were immediately fired from their jobs, and thereby lost their homes and all entitlement to medical care as well. They had no access to state social security or any other safety net. Although Khatami decreed that even undocumented children would be permitted to attend school, local authorities continued to deny refugee children entry to public schools and forcibly closed down those organized by Afghan refugees themselves.50 The new laws prohibited Afghan refugees from owning property or selling their goods in domestic markets, and the authorities almost always denied refugees permits to export.51

The Iranian government conducted urban sweeps, arresting thousands of so-called illegal aliens. Many were then held in closed camps, while tens of thousands were forcibly deported. UNHCR estimated that 82,000 Afghan men and 8,300 families, including refugees who were both registered and unregistered, were forcibly returned to Afghanistan between January and July 2001 alone.52

In short, the vast majority of Afghan and Iraqi refugees were systemically denied the means to subsist by Iranian law, irrespective of the number of years they had been in the country. This was the primary reason why many refugees decided in 1998-2001 to leave Iran and go in search of an asylum country that would grant them a secure legal status. Human Rights Watch interviewed refugees in Australia, or stranded in Indonesia because of Australia's deterrent policies, who explained how these conditions in Iran had driven them away.

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

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

When Leila's husband lost his job a second time as a result of the 1999 crackdown on unauthorized workers, he decided to leave Iran for Australia. After his departure in January 2000, life became increasingly difficult for Leila. She was not permitted to work, had no income for four months, and sold nuts in the street illegally in order to feed her children. The first she heard from her husband was when he was arrested in Kupang, Indonesia, and was awaiting a decision on his claim by UNHCR. Three months later, despite his urging her to wait, Leila collected all the money she could from friends and relatives and left with her children to rejoin her husband where he was by then living as a recognized refugee under UNHCR protection in Jakarta.53

An Iraqi woman named Ama, who had fled to Iran in 1993, told Human Rights Watch how she and her family had lived in Tehran without difficulty for several years. After the draconian crackdown on refugee employment in 2001, however, her husband was turned away from every job for three months. Without a residence permit or any other form of legal identification, they were unable to buy property or enter their sons in higher education. Her sons had no right to marry Iranian citizens, even Iraqi women who were naturalized.54 Many others recounted similar stories of discrimination due to lack of status.55

An Iraqi man named Wali, now stranded in Indonesia, described what happened to his sisters, wife and son after they were refused legal documents, despite the fact that he himself had a residence permit and his mother and brothers were also documented. His son could never attend school in Iran, he explained,

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

After the enactment of the June 2001 laws, Wali was promptly fired from his job as a tailor and could find no other way to earn a living. He and his family took advantage of the fact that the Iranian authorities were offering refugees one-way "aliens passports" and left the country by air for Malaysia on September 11, 2001.56

Such stories are not merely evidence of economic hardship. In some cases, they constitute persecution by cumulative economic means, on the grounds of nationality, within the meaning of the Refugee Convention.57 Such persecution is inflicted upon refugees, irrespective of the duration of their residency in Iran, with the clear purpose of pressuring them to leave the country.

Risks of arrest, detention and forced return
Denied the right to work, refugees in Iran are at constant risk of arrest and forced return (refoulement) if caught working illegally. Fear of arrest also restricted refugees' ability to move freely around the country. For many, these restrictions were motivating factors in deciding to leave Iran.

In Australia, a seventeen year old Iraqi boy named Mohammed, who grew up as a refugee in Iran after his family fled the bombing in 1991, remembered his parents' fear of arrest after the laws banning them from working as a taxi-driver and seamstress were passed in 1997. At least six times during 1998 and 1999, he claims, he himself had to run from the police in the streets to escape arrest and possible deportation. "This was normal for teenaged Iraqi refugee boys," Mohammed said.58

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

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

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

Four Iranian soldiers accompanied them on each bus. Following his return, weak with malnutrition, he made his way home to his parents' village near Mazar-i Sharif and pleaded to stay, but his father sent him away again, to avoid conscription by the Taliban.59 Farwat spent three more years in Iran, again living illegally, in constant fear of arrest. When he turned twenty, he chose to return to Afghanistan, unable to bear the hardship of illegality in Iran any longer. His father remained fearful for his safety, however, and in mid-2001, sent him abroad once more, this time with a smuggler, via Pakistan, toward Australia.60

In many cases, refugees in Iran had tolerated discomfort and discrimination for years and only made the decision to leave the region when the Iranian government hardened its policy into one of encampment and expulsion. Some refugees cited their own experience of forced deportation and refoulement to explain why they had left the region. A Hazara refugee named Fahim, now in Australia, described to Human Rights Watch how he fled first from Afghanistan to Pakistan, where he was arrested and nearly refouled, then onto Iran where he remained for three years. He says he was arrested by the Iranian police for lacking a residence permit while attempting to make contact with the UNHCR office in Tehran. They sent him to a camp in Zahedan province, where he spent two months along with some 500 other detainees before being forcibly deported back to Nimruz in Afghanistan. He remembered those two months in the camp: "They just kept us there to deter us from ever coming over the border again. They made us stand in the noon sun for hours or hop on one leg. There were constant humiliations and the guards thought nothing of kicking you..." 61

The Iranian police dumped Fahim in the town of Zaranj near the border. It took him two days to travel back to his own village. Because he was a Hazara, on the way through Kandahar he was subject to a Taliban road check. This was only three days after the Taliban had been defeated in a battle in northern Afghanistan by a largely Hazara political faction so they were taking retributive actions against Hazaras across the country. The Taliban arrested him and sent him to prison for three months. There he claims he was severely tortured "in a way that still affects my psychological health," subjected to mock-executions, starved and made to perform forced labor. His weight dropped 22 kilos in three months and "lost everything except my breath." Finally, the Taliban executed the stronger prisoners and then traded the weak ones, like him, for their own prisoners of war. He was thereby freed and returned to his own village in Hazarajat in 1997. In 1998, Fahim had to flee Afghanistan a second time, again because of persecution related to his ethnicity. This was when he decided to leave the region altogether and head for Australia. On arrival in Australia he was detained at Woomera Detention Centre for nine months. The psychological impact of this experience, which, he said, prompted nightmares of both the Iranian refugee camp and imprisonment by the Taliban, was devastating.62

Rumors of such arbitrary arrests and summary deportations are enough to make many refugees move swiftly through the region. One Iraqi doctor and his wife, for example, who were wanted by the Iraqi authorities for giving emergency medical treatment to Kurdish rebels forbidden such treatment, fled in January 2000 to a house in Qasr-e Shirin in Iran. They then moved to Qom where the doctor had a cousin, but they only stayed in Iran for twelve days because, during that time, he witnessed some Iraqi army deserters suspected by Iran of espionage being forcibly returned to the Iraqi army despite their fears of persecutory penalties.63

Rashad, a twenty-seven year old Hazara, was interviewed by Human Rights Watch in Indonesia after being intercepted and turned away by Australia. He told how his knowledge that a member of his extended family had experienced refoulement from Iran informed his own fear of refoulement from neighboring Pakistan. After his father's three-month imprisonment and torture by the Taliban, Rashad's mother begged her son to flee from Ghazni province in June 2001 to avoid arrest or conscription. His uncle found some smugglers in Ghazni City and an address for Rashad to contact once he reached Pakistan. He went to Quetta but stayed there just eighteen days, then spent twenty days in Karachi. He did not stay longer, he explained, because:

I was afraid of being returned to Afghanistan, as my nephew [grandson of his uncle] had been when he tried to flee to Iran a few years ago. We had heard that he was returned to Herat and then picked up by the Taliban who put him into Kandahar prison, and then we never heard about him again.64

Pakistan
The refugee protection situation in Pakistan during 1998-2001 was similar to that in Iran insofar as the vast majority of the country's two million refugees lived without any legal status. Pakistan is not a signatory to the Refugee Convention. Since late 1999, the government has refused to consider newly arriving Afghans as prima facie refugees.65 Undocumented refugees, like other foreigners unlawfully present, are therefore plagued by constant risk of arrest and detention, while even refugees who were registered in the early 1990s may have restrictions placed on their freedom of movement and place of residence.66 Undocumented refugees, particularly ethnic Tajiks, Uzbeks and Hazaras, are also vulnerable to harassment and extortion by the Pakistani authorities. If refugees do not pay up, they can be imprisoned and possibly deported. This is true even in the well-established Afghan community of Quetta,67 where authorities at the District Prison told Human Rights Watch in December 2001 that most of the Afghans in their facility were held for violating the Foreigners Act and Order.68

Risk of forced returns
Forcible returns from Pakistan to Afghanistan have occurred periodically.69 In 1999, for example, over 150 Hazaras were forced back from Quetta after an urban sweep and between October 2000 and May 2001, some 7,633 Afghans were returned because of their undocumented status, with no opportunity to claim protection from refoulement.70 Several Hazara refugees interviewed by Human Rights Watch in Indonesia and Australia had avoided summary return to the hands of their persecutors only by bribing the Pakistani police for release after being arrested as illegal migrants at the border or while living in Karachi, Peshawar and Quetta.71

A Hazara man, Behrooz, fled with his family to Pakistan in May 2001, after the Taliban arrested and tortured his brother. He immediately went to one of the UNHCR's offices and told officials, "We are in danger, please help us. The Taliban are following us and may arrest me." But UNHCR, he claims, did not take him seriously. About ten days later, three ethnic Pashtun Afghans came with two Pakistani policemen and abducted/arrested him. He was separated from his wife and three young sons, bundled into a car and driven back across the border. In the car a member of the Taliban was sitting behind him and he was between the two Pakistani policemen. At the border, the policemen got out of the car and the Taliban took him alone at gunpoint back to the town of Qasr-e Akbar Khan. He was taken from there to the house of the Taliban Deputy Foreign Minister, where he was kept under armed guard for fifteen days. When interrogated, he was asked about his family. Behrooz told them that they were in Pakistan with no one to support or protect them. The Taliban told him that if he paid US$50-60,000 they would release him. "I thought I would be killed because I did not have enough money to pay them. When we were left alone I begged one guard to take pity on me, telling him about my family. Finally I promised him $2000 and the two of us escaped together in the night." He and his former captor fled back over the Pakistani border but when he returned to his house, he found his family had disappeared. He felt it was too dangerous to stay in Pakistan and search for them, so he decided to make a deal with smugglers and leave the region. When interviewed by Human Rights Watch, Behrooz was alone in Indonesia and still had had no news of his family's whereabouts. He feared that his wife had been sold in the market at Miram-Shah.72

Threats from agents of persecution operating across borders
Hazara Afghans were not alone in feeling unsafe in Pakistan during the period in question. A Pashtun refugee named Faizan, who was expelled by Australia to Indonesia in October 2001, said that he was one of an extremely small Shi'a Muslim minority in his village of Hasankhal. People he believed to be affiliated with the Taliban shot two of his cousins in the village sometime in mid-February 2000, so the next evening, Faizan headed for the Pakistan border. A friend gave him the address of someone in Peshawar, with whom he stayed for three days. After two days, his father followed, bringing money for Faizan to buy a fake passport. "I wanted to stay there [in Peshawar], but there were too many Afghans, including many Sunnis who would persecute us just like at home," Faizan explained. He himself knew of two Shi'a Muslim neighbors who had fought the Taliban to retain their property and then fled to Pakistan where they were caught by a Taliban cell operating in Pakistan within five days and had their throats slit. "The Taliban had brought their corpses back to my village as a warning. I saw these mutilated bodies with my own eyes, and remembered them too well to think that Pakistan was a safe country for someone like me."73

Many Hazara refugees also told Human Rights Watch that they had not set foot outside of smugglers' houses in Pakistan for fear of Taliban operatives in Pakistan.74 A former High Court Judge under the Taliban regime, who fled when he refused to implement their discriminatory laws against the Hazara, feared persecution from the Taliban and former Mujahidin members in Pakistan. He therefore spent only three days in Pakistan before contacting smugglers who could get him quickly out of the region.75 Another Afghan family, one of Tajik ethnicity, similarly claimed that the presence of former Mujahidin operatives in Peshawar had made them leave Pakistan after hiding there ten or fifteen days in early 2001.76

Jordan and Syria
Neither Jordan nor Syria have signed the Refugee Convention, neither has domestic laws to protect Iraqi or Afghan refugees and neither wishes to be considered countries of asylum for these nationalities. Nevertheless, Jordan hosts some 250-350,000 Iraqis.77 Of this population, approximately 1,000 recognized refugees are registered with UNHCR, awaiting resettlement, and another 4,300 are awaiting refugee status determination by UNHCR.78 Toleration of the refugees' de facto presence is contingent upon UNHCR resettling or returning all processed cases, as stated in an agreement signed between UNHCR and Jordan in April 1998. Syria, meanwhile, has over 3,200 recognized refugees registered with UNHCR, awaiting resettlement.

As explained below, access to protection through status determination and resettlement by UNHCR can be highly problematic. Consequently, many refugees who would have valid claims under the Refugee Convention remain in these countries without registering, usually overstaying their initial visitor's visas. Endemic corruption makes these undocumented refugees vulnerable to harassment and extortion by the Jordanian and Syrian police in order to avoid arbitrary arrest or refoulement. Although the Syrian government denies forcibly repatriating refugees, an undetermined number of Iraqis were reportedly refouled to northern Iraq in 1999 and several hundred were expelled in December 2001.79 Such returns intimidate other refugees from coming forward to register.

Lack of legal status
In the interval between expiration of an initial six-month visitor's visa automatically granted to Iraqi nationals and resettlement, refugees have no legal status and thus no access to the labor market, public education or health care, nor any legally enforceable guarantee against deportation. Often Jordanian visitor's visas expired before refugees had managed even to have their first interview appointment with UNHCR.

In Indonesia, Human Rights Watch interviewed several Iraqis who had made secondary movements out of Jordan and Syria. One mother of four described how the Iraqi authorities harassed her over her husband's unauthorized departure in September 1999, so she fled to Jordan. She chose to go there because it was the only legal land route that did not require a visitor's visa to be obtained in advance, but she stayed in Amman for just two weeks because she knew that her visa was only valid for six months and saw no likelihood of improvement in the situation in Iraq during that time, so she asked, "Why should I have wasted time waiting for my visa to expire in a country where I knew they wouldn't allow me to stay for longer?"80

One fifteen year old Iraqi boy, named Jasim, interviewed by Human Rights Watch while held in detention in Australia, recalled that his family had fled from a camp in Jordan in 1999 when the Jordanian authorities started to expel refugees. They went to Syria where they overstayed their three-month visitors' visas and his father worked illegally, but they again lacked legal status. That drove the family to smuggle themselves to Australia, a country where they had heard refugees could gain protection visas that lasted more than just a few months and where refugee children were allowed to go to school - though in fact Jasim spent nearly three years in detention in Australia, with virtually no access to education.81

Threats from agents operating across borders
Other refugees presented the same logic for their rapid transit through Jordan. They also expressed fear of approaching the UNHCR offices in Amman because Iraqi intelligence agents watched the surrounding streets.82

An Iraqi refugee named Ali, now in Indonesia, told Human Rights Watch how he had fled to Jordan after torture in an Iraqi prison. Ali spoke of his fear of arrest and deportation after his visa expired, having witnessed Iraqi refugees registered with UNHCR being forcibly deported back to Iraq in 1999. This pushed him to move on to Syria, which was safer for Iraqis at the time, while his wife preferred to remain behind with her relatives in Jordan. However, the position of Iraqi refugees in Syria also started to deteriorate and UNHCR assistance was only provided to those who had fled directly from Iraq - in other words, Ali was already being classed as an "irregular mover" and penalized by UNHCR as a result. After his wife was killed under suspicious circumstances in 2001, he returned to Jordan to investigate her death and make arrangements for her burial and the care of their son. At that time he became conscious of Iraqi security forces in Jordan monitoring his movements, so Ali decided to flee the region using smugglers.83

UNHCR becomes complicit in the deterrence of secondary movers when its policies penalize them, as in the treatment of Iraqis who find life in Iran so intolerable under the "Article 48" laws that they try to move on to Jordan or Syria.84 They can be registered as refugees and have the limited security of UNHCR documentation, but they do not receive material assistance. Denied permission to work in Jordan, refugees will be left destitute unless they have independent savings or work illegally.85

Conclusion
The Australian government asserts that refugees from countries of asylum in the Middle East and South Asia "are moving voluntarily. Their movement is not forced. They are not directly fleeing persecution."86 Human Rights Watch found these assertions, in many individual instances, to be untrue. Nearly every asylum seeker and refugee from Iraq and Afghanistan interviewed by Human Rights Watch in Australia and Indonesia described compelling reasons for having left their first countries of asylum, often stemming from their lack of legal status and protection. In several cases, refugees were fleeing discrimination that amounted to persecution on grounds of their nationality in their countries of first asylum. In several other cases, they were fleeing ongoing fear of persecution by or return to their original persecutors. The increase in secondary movements to Australia between 1999 and 2001, as well as to Europe and North America during the same period, was directly related to the deterioration of refugee protection in the Middle East and South Asia in the same period.

Limited opportunities for authorized resettlement from regions of origin
Aside from the false premise that all secondary movements are voluntary, official obstacles against refugees who make such movements are based on Australia's view that they could and should have applied to international agencies for resettlement if they were really at risk.87 This view assumes that refugees fearing refoulement or other serious risks in their first countries of asylum can be assisted to depart in an orderly, timely and properly documented way through the resettlement system.

Resettlement to Australia
After refugees have been through the sometimes lengthy process of UNHCR refugee status determination,88 and then have also qualified under one of the eight resettlement criteria, their case might be referred to Australia for consideration. The Australian resettlement system runs two major programs - the Refugee Program, which includes several specific components, such as women-at-risk, and the Special Humanitarian Program.

Australia receives around 64,000 applications a year under these two programs, mostly but not solely referred by UNHCR. A resettlement application can also be made directly to an Australian "Migration Post," that is, an overseas mission designated and staffed to process immigration and resettlement applications. Australia links the number of "onshore" visas granted to refugees inside Australia with the number of "offshore" (resettlement) places available.89 It need not work this way. In most European countries or in the United States, for example, resettlement and territorial asylum places are not linked.

The Australian government attempts to justify its deterrent policies as a matter of principle rather than expediency. It does so by stigmatizing asylum seekers coming from other regions as "queue-jumpers"90 who do not wait their turn in the resettlement "queue." Australia has for a long time viewed its primary role in the international refugee protection regime as that of a resettlement country91 and has resettled some 600,000 refugees and humanitarian cases since the Second World War. It is only since September 2001, however, that there has been official bias against those who "could have lodged applications for consideration under Australia's humanitarian programs" but instead chose to come spontaneously. They have been wrongly portrayed as people who "simply do not want to wait."92

The Australian government also stigmatizes secondary movement, which is not prohibited by the Refugee Convention, by linking it in the public's mind to the crime of people-smuggling:

This form of organized crime is found throughout the world and preys on people who are unwilling, for whatever reason, to go through normal procedures for entry to the country of destination. Many of the people moved around the world by these people smugglers have either no protection needs or have bypassed effective protection arrangements in countries closer to their home, simply so that they can achieve their preferred migration outcome.93

This phrase "preferred migration outcome" has been used repeatedly by the Australian government to try to de-link secondary movement with any sense of forced displacement.94 Its use obscures the fact that an extremely high proportion of Iraqis, Afghans and Iranians arriving in Australia prior to September 2001 were recognized to be genuine refugees.95 It is misleading of the government to state that Australia was running a disproportionately expensive determination system "just to find the relatively few refugees among those who seek asylum."96

Access to resettlement from the Middle East
The first myth to dispel is that anyone can apply for asylum in Australia from inside a country of origin such as Iraq or Afghanistan. This is not possible. Once refugees have left their countries of origin and reached a first country of asylum, they must be processed through UNHCR if they want a resettlement referral.

UNHCR struggles under severe resource constraints, yet these do not fully justify the barriers currently preventing many refugees from gaining information about and access to the resettlement application procedure. The UNHCR office in Tehran, for example, is far from where most refugees reside, inside a walled compound, so many refugees have to apply in writing. That office receives one hundred letters per day, far fewer than the office in Islamabad, which is also "infamous for its access problems."97 In Jordan, many Iraqis have told Human Rights Watch researchers that the Iraqi security forces watch the UNHCR offices, so they could not approach it. To cross the border to seek asylum at UNCHR in Ankara, meanwhile, is risky because Turkey has readmission agreements98 to return all migrants who spent more than a short period in transit to Syria, Iran and northern Iraq, without considering their risk of refoulement. It is not known how many refugees have been summarily deported or denied entry at the border by the Turkish authorities.

Accounts from asylum seekers and refugees who have made their way spontaneously to Indonesia and Australia contain many examples of individuals frustrated in their attempts to apply for resettlement through UNHCR.

One Iraqi mother, recently resettled from Indonesia to Australia, told Human Rights Watch how she had tried to go to the UNHCR offices in Tehran five different times during 1998 and 1999. Iranian, Syrian and Lebanese guards talked to her through a window and asked to see her residence permit. When she told them she did not have one, they gave her a small piece of paper with a handwritten appointment and told her to return in a month's time. With this scrap of paper in hand, she returned repeatedly and each time was refused entry or denied an appointment, possibly because she was there on the incorrect day. The last time she went, after her husband had left Iran in late 1999, she tried to tell UNHCR she was in danger because she was a woman living alone, but she claims they ignored her:

I was living in a rented room in the house of a married man. This man was pressuring me to have sex with him, and I was too frightened to tell my sons about it because I was afraid what they might do. So I just stayed in the room and put my sons' shoes outside the door, to trick the man into thinking I wasn't alone. I used to cry every night, and begged my sons to let us move but couldn't tell them why. I had no other friends or family to go to because I was a refugee.99

Another Iraqi mother, interviewed in Jakarta, said she could not see the benefit of going to UNHCR in Tehran because she personally knew someone recognized as a refugee by UNHCR there who was still waiting for resettlement after ten years. Her husband once did try to contact UNHCR in Tehran and was told, prior to any examination of their circumstances, that they "had no right to resettlement" - a technically correct statement, which her husband had misunderstood as meaning they had no right to apply. Now, in Indonesia, she is bitter that this failure to apply via UNHCR seems to be held against them: "They [Australia] do not like to resettle us because they call Iran a refugee country and think we were O.K. there just because Iran has signed the [Refugee] Convention. They don't seem to know that they didn't even give us identity documents."100

In a case described in the previous section, the attempt to approach UNHCR offices directly precipitated refoulement: Fahim, a Hazara refugee now recognized by Australia, went to the Australian embassy in Tehran in 1995 and again in 1996 and tried to tell them that "I can't feel safe and secure in Iran and they will never let me become legalized here." They gave him the address of the Australian embassy in Greece and told him to write there to apply for refugee status. He filled in a form and sent a letter to Athens and waited three months for a reply, which just referred him back to the UNHCR office in Tehran. When he tried to enter the UNHCR office in 1997, Iranian security guards stopped him. Twice he tried to sneak past them, and the third time he confronted the guards, demanding the right to enter in stronger terms. The guards asked to see his residence permit and when he could not produce one they took him to police headquarters. His arrest ultimately led to his refoulement by the Iranian authorities - a direct result of his effort to seek effective protection.101

Sara, a Hazara woman whose boat was intercepted by Australia and pushed back to Indonesia in October 2001, had been living with her husband and baby daughter in Rezo, near Mashhad, after March 1999. There they fell into one of the urban police sweeps to arrest refugees without residence permits ("illegal migrants") during June 2001, despite the fact that she held UNHCR paperwork:

We were ordered to leave the country, despite the fact that we were waiting to be interviewed for resettlement by the Australian embassy in Tehran. My husband's brother who is an Australian citizen had given us family sponsorship [under Australia's Special Humanitarian Program]. But every time when the refugee numbers become too overcrowded in those countries [Iran and Pakistan], they deport back some to Afghanistan.

The police gave them fifteen days to leave the country, but Sara claims she could not gain access to the UNHCR office during that time to seek help - the staff thought she was just needlessly pestering them about the progress of their case. They avoided deportation into the hands of their Taliban persecutors102 by returning in private to Herat and hiding for a few weeks before fleeing again, this time to Pakistan. They stayed in Karachi for twenty days before deciding that it was unsafe and that they should leave the region altogether.103 This case is a clear example of why waiting in the "queue" is not simply a matter of patience,104 and how a culture of defensiveness against anxious refugees can result in a breakdown of communication between UNHCR and the very people it is supposed to protect.

Physical access to the Australian Migration Posts, like UNHCR offices, poses a problem for refugees in Iran and Pakistan. The restrictions on refugees' freedom of movement if they have no documentation prevent them from approaching the premises.

Even after applying, a refugee's chances of being resettled anywhere are slim. UNHCR is forced to establish priorities for choosing among the many who are eligible. In the past two years, UNHCR has increasingly promoted resettlement of refugees from Iran in acknowledgement of the gaps in protection existing there. Prior to 2000 they only resettled a tiny number of vulnerable cases, while in 2001 they submitted 1,500 names to resettlement countries. In 2001 Australia resettled just 625 Iraqis and 331 Afghans from Ankara, Athens, Beirut, Cairo, Islamabad, Kuala Lumpur and Tehran combined. Of these, only 236 Iraqis and 70 Afghans were referred by UNHCR.

While persons do not need to be refugees as defined in the Refugee Convention to qualify under Australia's Special Humanitarian Program, they do need to be sponsored by an Australian citizen, permanent resident or community organization. Furthermore, all applicants for resettlement must pass various elaborate character and health checks, including proving that any medical condition would not result in significant costs to the Australian community, which excludes many refugees with health problems. Their applications benefit if they are skilled or can speak English. Moreover, family reunion cases are also handled under this Special Humanitarian Program. These factors make the Special Humanitarian Program distinctly immigration-biased, rather than protection-oriented. By putting emphasis on choosing whom to invite to their territory, the Australian government is seeking its own "migration outcome" from what ought to have a humanitarian purpose.

Often extensive delays in processing resettlement cases mean that refugees with urgent protection needs have to choose between risking their lives or forgoing resettlement application procedures. A breakdown of statistics from Australian Migration Posts between July - December 2001,105 for example, has revealed that, in 25 percent of cases, processing under the Refugee Program took over twenty-one months in Ankara, over twenty-two months in Beirut, over thirty-seven months in Islamabad (caused in part by disruption after September 11), and over twenty months in Tehran. In total, only seventy-three people were granted visas from these four posts during the report's six-month period.106 Statistics for 1998-99 tell a similar story. Globally, a quarter of all refugee applicants had to wait over a year for processing by Australia, a quarter of all Special Humanitarian Program applicants had to wait at least one and a half years.

The system was also inefficient for women-at-risk cases. In 1998-99 only 25 percent of visas were issued within twenty-six weeks of application.107 In September 2001, it was revealed that 25.4 percent of women-at-risk cases processed in Ankara and 25.7 percent of such cases processed in Islamabad had taken more than eighteen months.108 While Human Rights Watch applauds Australia's generous participation in UNHCR's Women-at-Risk Program, it believes the extensive delays during the period in question all but invalidated the emergency evacuation that the program was supposed to offer. .109

Conclusion
To the extent that there is a resettlement "queue," it is an inaccessible and somewhat arbitrary one. It moves at such a slow pace that it can leave those waiting at serious risk. It is a system based on discretionary, non-reviewable decisions more than on predictable rights and obligations.

The system is not advertised to refugees in states such as Iran or Pakistan so that they are not given "false hope" - an approach which has some justification, given the limited number of places available. The general sense among refugees is that both UNHCR and resettlement countries such as Australia do not want resettlement to operate much more efficiently - that they deliberately maintain the system at an unattractive level of service as a way to stabilize the potentially overwhelming level of demand.

Faced with these circumstances, it is no wonder that individuals decide to take their fates into their own hands and make spontaneous secondary movements. It is often the best-informed refugees who are quickest to grasp the inefficiencies and inequities of the resettlement system and decide to bypass it, to judge from the testimonies of the more highly-educated Iraqis interviewed in Indonesia, who correctly understood that applying for resettlement would mean living without basic rights or secure protection in Iran or Jordan for at least several years.110

It is legitimate for individual asylum seekers to cite the inadequacies of the resettlement system as part of their explanation for the necessity of making a secondary movement. Very often it is individuals who are in extreme need of protection who invest in such hazardous travel via people-smugglers.

44 All interviews related to conditions in these countries prior to September 11, 2001.

45 UNHCR Tehran estimate, 2001.

46 Contrary to guidance in UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status, (HCR/IP/4/Eng) which states in Preface, (ii): "the determination of refugee status is incumbent upon the Contracting State in whose territory the refugee himself at the time he applies for recognition of refugee status."

47 Refugee Council of Australia, "Report on Refugee Council of Australia (RCOA) Field Visit to Iran," December 2001.

48 See U.S. Committee for Refugees, World Refugee Survey 2000, Iran.

49 Letter from UNHCR to Human Rights Watch, received November 20, 2002.

50 This was in violation of articles 28 and 29 of the Convention on the Rights of the Child, G.A. Res. 44/25, 44 UN GAOR, Supp. No. 49, U.N. Doc. A/44/49, 1989, entered into force September 2, 1990.

51 Refugee Council of Australia, "Report on Refugee Council of Australia (RCOA) Field Visit to Iran," December 2001.

52 UNHCR, "Mid-Year Progress Report on Iran," 2001.

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

54 Human Rights Watch interview, No.11, Jakarta, Indonesia, April 12, 2002. See also Human Rights Watch interview No.12 for similar circumstances. In October 1999, 55 Iraqi intellectuals in Qom sent a letter to Iranian officials, charging that they were discriminated against in terms of lack of legal status - preventing them from opening bank accounts, owning property, marrying Iranian citizens and moving freely within the country. U.S. Committee for Refugees, World Refugee Survey 2000, p.184.

55 A Kurdish Iraqi mother who is now living on a temporary protection visa in Australia stated: "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 afraid that my child will have the same life." Human Rights Watch interview, No. 43, Sydney, Australia, April 21, 2002]

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

57 For such discrimination to amount to persecution it must cause the individual "serious harm." This is one of the tests developed by Prof. James Hathaway and now widely applied to determining whether a human rights violation amounts to persecution within the meaning of the Refugee Convention Article 1. See James Hathaway, The Law of Refugee Status (Toronto, 1991), pp.103-5. Also See p.121 for examples of breaches of economic, social and cultural rights, such as denial of right to remunerated work, which may amount to "serious harm"). "Serious harm" is defined in the Australian Migration Act 1958, Section 91R, where it includes: "a threat to the person's life and liberty; or significant physical harassment of the person; or significant physical ill-treatment of the person; or significant economic hardship that threatens the person's capacity to subsist; or denial of access to basic services, where the denial threatens the person's capacity to subsist; or denial of capacity to earn a livelihood of any kind, where the denial threatens the person's capacity to subsist."
"[R]esident internationally unprotected persons, such as refugees and stateless persons, might be objects of human rights abuse by reason of their status as `foreigners'...[T]hose who cannot enjoy meaningful protection elsewhere [e.g. in their country of formal nationality] are properly assessed as refugees in accordance with the concept of state of former habitual residence." Hathaway, The Law of Refugee Status, p.144.

58 Human Rights Watch interview, No. 39, Melbourne, Australia, April 3, 2002.

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

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

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

62 Ibid.

63 Human Rights Watch interview, No. 1, Jakarta, Indonesia, April 8, 2002. The doctor and his wife were intercepted on their attempt to leave Indonesia for Australia and are now recognized as refugees by UNHCR Jakarta, awaiting resettlement in Canada.

64 Human Rights Watch interview, No. 18, Mataram, Indonesia, April 16, 2002. See also Human Rights Watch interview, No. 19, Mataram, Indonesia, April 16, 2002 and Human Rights Watch interview, No. 20, Mataram, April 15, 2002 for similar reasons for transiting quickly through Pakistan.

65 In August 2001 there was hope for improvement in conditions as Pakistan allowed UNHCR to participate in a joint registration and screening of refugees in New Jalozai, but the screening operation only lasted from mid-August until August 28, and then again briefly for eight days between September 3-11.

66 See Pakistan's Foreigners Order of October 1951, promulgated pursuant to the Foreigners Act of 1946.

67 This de facto integration sometimes causes these refugees to be confused with Pakistani nationals in linguistic or other nationality tests used by Western adjudicators. The Australian Department of Immigration expressed its skepticism as early as 2000, stating that "a significant percentage of people who claim to have traveled directly from Afghanistan have in fact been long term residents of Quetta or Peshawar in Pakistan". DIMIA, "Protecting the Border: Immigration Compliance," 2000. Human Rights Watch's findings in this report, on the contrary, suggest that duration of residence in Pakistan bears no necessary relation to the quality of protection afforded to an individual refugee.

68 Human Rights Watch interview with Quetta District prison authority, December 1, 2001. Human Rights Watch, "Closed Door Policy: Afghan Refugees in Pakistan and Iran," A Human Rights Watch Report, vol.14, no.2 (G), February 2002.

69 It must be repeated that this section relates only to returns prior to September 2001, the period during which the refugees intercepted by Australia were in transit. Since the fall of the Taliban there have been vast numbers of spontaneous returns to Afghanistan from neighboring countries. See Human Rights Watch, "No Safe Refuge," A Human Rights Watch Backgrounder, October 18, 2001.

70 See "UN Study on Forced Returns of Afghans from Pakistan," May 2001.

71 See, for e.g., Human Rights Watch interviews Nos.19, 30 and 40.

72 Human Rights Watch interview, No. 32, Mataram, Indonesia, April 19, 2002.

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

74 See, for e.g., Human Rights Watch interview, No. 29, Mataram, Indonesia, April 18, 2002..

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

76 Human Rights Watch interview, No. 17, Mataram, Indonesia, April 15, 2002.

77 There are no reliable figures for this mostly undocumented population. This is the estimate of a Human Rights Watch researcher on Jordan and Iraq.

78 For explanation of UNHCR refugee status determination procedures, see the section, Return to Indonesia - The Role of UNHCR.

79 See U.S. Committee for Refugees, World Refugee Survey 2002.

80 Human Rights Watch interview, No. 6, Cisawa, Indonesia, April 11, 2002.

81 Human Rights Watch interview, No. 38, Sydney, Australia, April 6, 2002.

82 See, e.g., Human Rights Watch interview, No. 7, Cisawa, Indonesia, April 11, 2002.

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

84 Some 700 such Iraqis applied for asylum in Syria during 2000-01, according to UNHCR in Damascus.

85 In 1995, UNHCR defined an "irregular mover" as "a refugee or asylum seeker who leaves a country where basic protection was available, for reasons other than: family reunion with immediate family members who are not themselves irregular movers in the current country, or a threat to his/her physical security." UNHCR Memorandum from Regional Meeting on Irregular Movers held in Kuala Lumpur, May 2-4, 1995 (copy on file at Human Rights Watch). Then, in 1997, UNHCR produced its policy on "urban refugees" which stated that "[w]hile...UNHCR's protection obligations are unaffected by such movement, UNHCR does not have an obligation to provide assistance to refugees after irregular movement on the same basis as it would had there been no irregular movement." UNHCR, "Policy on Urban Refugees," 1997, para 17.

86 DIMIA, "Principled Observance of Protection Obligations and Purposeful Action to Fight People Smuggling and Organized Crime: Australia's Commitment," and also a draft of the same document sent to Human Rights Watch by DIMIA: "Australia's Commitment to Both Refugee Protection and Combating People Smuggling."

87 Australian Immigration Minister, Philip Ruddock, dwells on the fact that people "would rather engage a people-smuggler and travel halfway round the world in order to put their claims in Australia because they believe they are more likely to get a better hearing than they would if they were assessed by the UNHCR" and answers the refugee advocates who say there is no real queue, by reference to the number of resettlement applications received: "We do have a queue - it has 60,000 people. What we don't have is a queue which provides a place to everybody who might like one." March 28, 2002, `Insight' (SBS current affairs program in Australia).

88 Draft of DIMIA paper "Complementary Forms of Protection," September 2001 (sent by DIMIA to Human Rights Watch in June 2002): refers to UNHCR protection officers in countries of first asylum only determining a person to be a refugee if they have a requirement for resettlement.

89 In the financial year 2000-01, 13,733 visas were granted (making up for a shortfall in the previous year), of which 7,992 were for offshore (resettled) cases and 5,741 were for onshore (asylum seeker) cases. For 2001-02, there will be 13,645 places available. DIMIA Answers to Question on Notice from the Australian Senate's Inquiry into a Certain Maritime Incident (henceforth, "CMI"), June 13, 2002.

90 Similar to the European term "forum-shoppers," this term should be read in the context of other political rhetoric hostile to asylum seekers. Australian Senator Ross Lightfoot, for example, on October 11, 2001, referred to the recent arrivals from the Middle East as "uninvited and repulsive people" whose "sordid list of behavior" included scuttling their own boats. The legality of seeking asylum - a human right enshrined in the Universal Declaration of Human Rights - is also denied by Australian politicians' constant reference to the asylum seekers as "illegal migrants" or simply "illegals."

91 Australia, however, has never opened its door very wide to those who managed to reach its shores without an invitation or without a fear of persecution in their last country of embarkation. In January 1995, the Sino-Vietnamese who had arrived by boat via Indonesia, were sent back to China, which was regarded as a safe country of first asylum for this group. Similarly, most of the Ex-China Vietnamese Illegal Immigrants (ECVIIs) were returned from Hong Kong under the Comprehensive Plan of Act (CPA) in 1989-95. According to DIMIA, Australia took greater responsibility for resettling refugees under the CPA because the Vietnamese came from within the Southeast Asian region and so, by inference, had broken the rules against secondary movement to a lesser extent than today's Afghans and Iraqis refugees. Human Rights Watch interview with DIMIA, May 2002.

92 DIMIA, "Unauthorised Arrivals and Detention: Information Paper," February 2002.

93 Minister for Immigration and Multicultural Affairs, 2nd reading speech on the Migration Amendment (Excision from Migration Zone) Bill 2001, Australian House of Representatives, Hansard, 18 September 2001, 30869.

94 See, for e.g., Philip Ruddock, Australian Immigration Minister: "It is important to note that being a refugee does not give a person a right to select their preferred country of protection." DIMIA Press Release (May 23, 2002).

95 The annual rate of recognition for asylum seekers applying in the period 1996/97 to 2000/01 ranged from 89.6-97.6 percent for Afghans; 84.8-96 percent for Iraqis; and from 39.5-78.3 percent for Iranians. DIMIA statistics provided to Human Rights Watch, November 20, 2002.The recognition rate for Iraqi unauthorized boat arrivals who lodged protection visa applications on the Australian mainland in 2000/01 was 91 percent. DIMIA Answers to Question on Notice from the CMI, 13 June 2002. Between November 1, 1999 and May 31, 2001, around 85 percent of 5,936 asylum seekers in detention, the vast majority of whom were unauthorized boat arrivals from these three countries, were recognized to be refugees within the meaning of the Refugee Convention.

96 "Australian Statement to Parties to the Convention Related to the Status of Refugees," UNHCR Ministerial Conference, Geneva, 12 December 2001.

97 Refugee Council of Australia, "Report on Refugee Council of Australia (RCOA) Field Visit to Iran," December 2001.

98 A "readmission agreement" is a bilateral, binding agreement governing the return of illegal migrants, rejected asylum seekers and/or asylum seekers and ensuring that the returned individual will be readmitted without penalty. In cases where persons who may be in need of protection are returned, readmission agreements can guarantee that the person will be permitted to apply for asylum in the receiving state.

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

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

101 Human Rights Watch interview, No. 40, Melbourne, Australia, April 3, 2002. See also Human Rights Watch interview, No. 32, Mataram, Indonesia, April 19, 2002 with regard to a refoulement incident following from an attempt to reach UNHCR offices in Pakistan.

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

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

104 DIMIA (Refugee & Humanitarian) interview with Human Rights Watch, May 2002: DIMIA was sanguine about delays in the resettlement process ("It has always taken time"), regarding it as a simple matter of patience.

105 Transcripts of the Additional Estimates Hearing, Australian Senate, February 2002.

106 In 2001, DIMIA also proposed eliminating the possibility of making repeat applications to Australia's resettlement programs, thereby removing the only element analogous to an `appeal' in this discretionary and highly selective system.

107 DIMA Humanitarian Program: Offshore Program Delivery, Monthly Summary, June 1999.

108 DIMIA statistics, September 2001.

109 For an example of a Woman-at-Risk case which was not resettled by Australia in time, see "Kenya: Refugee Children Murdered at `secure residence' in Nairobi," Human Rights Watch Press Release, Nairobi, April 23, 2002.

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

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