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  4. September 2013 - Volume Vol. 73
  5. Protecting Refugees, Asylum Seekers, Stateless People and Internally Displaced Persons in the Asia-Pacific

 
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FOCUS September 2013 Volume Vol. 73

Protecting Refugees, Asylum Seekers, Stateless People and Internally Displaced Persons in the Asia-Pacific

Jefferson R. Plantilla

The United Nations High Commissioner for Refugees (UNHCR) estimates some 9.5 million refugees in the Asia- Pacific region.1 In 2012, it served eight million “individuals of concern,” referring to refugees, asylum seekers, stateless people, and internally displaced persons.2
The UNHCR describes the situation in the region in the following manner:3

Many countries in the region have not acceded to the 1951 Refugee Convention and lack legal frameworks for refugee protection. Protracted refugee situations in many countries have led to host-community fatigue and in some cases, secondary movements. Many States in the region consider asylum-seekers on their territory as people in transit and so generally do not provide effective protection.

This situation is further complicated by a number of key issues in the Asia-Pacific region that UNHCR wants addressed:4

  • • improved protection of all individuals of concern
  • • respect for the principle of non-refoulement
  • • alternatives to detention
  • • unhindered access to asylum
  • • high-quality refugee status determination (RSD) procedures
  • • expanded opportunities for durable solutions
  • • better opportunities for livelihoods and integration for urban refugees, improved reception conditions, and
  • • prevention of statelessness.

These issues pose a challenge not only to the UNHCR but also to many other institutions that support the refugees, asylum seekers, stateless people, and internally displaced persons in many countries in Asia and the Pacific. Though hampered by limited resources, these mainly non-governmental institutions continue to work to protect the rights of the so-called individuals of concern of the UNHCR, work for their release from detention, lobby for the enactment of appropriate legal framework for them, support their survival in the country, prevent their repatriation, among others.

Developments in the region

Several developments in different countries in the Asia- Pacific region provide some hope for refugees, asylum seekers, stateless people, and internally displaced persons.
In Korea, a refugee law that took effect in July 2013 prohibits refoulement; includes the right of refugee status applicant to receive the assistance of a lawyer, access of refugee status applicant to the records of application interview, the videotaping of the interview, provision of interpreter in case applicant cannot express her/ himself in Korean, appeal on denial of application; prohibits disclosure of personal information without the consent of applicant; establishes the system for making application as well as review on appeal of denial of application; and provides for cooperation between the Ministry of Justice and the UNHCR.5
In Mainland China, the new Exit-Entry Administration Law (enacted in June 2012) introduced a provision on refugee definition. As one report states6

For the first time, China has added provisions to its domestic law regarding the treatment of refugees. The new law allows refugees to stay in China after obtaining an ID card from public security authorities. Asylum-seekers will also be allowed to use a temporary ID card to stay in the country while their refugee status is under examination.

In 2012, the UNHCR reported on a new procedure to protect both refugees and stateless people in the Philippines, the first country in the Asia-Pacific to adopt such procedure.7 It further reported:

Refugees and stateless people are protected under Philippine law. With the new procedure, there is a way to [reunite] refugees with extended family members such as grandparents. Asylum-seekers have the right to a lawyer and interpreter during the process, and they cannot be deported while undergoing the procedure, ensuring respect for international law.
Other safeguards to protect asylum-seekers and refugees were integrated in the procedure, such as special measures for unaccompanied children.

In Hong Kong, a 2011 court decision upheld certain rights of refugee applicants. In one case, the Court of Final Appeal ruled that Article 3 of the Hong Kong Bill of Rights Ordinance on right against cruel, inhuman or degrading treatment or punishment is absolute and non-derogable right and thus cannot be overridden by legal provisions on immigration.8 This court decision obliges the Hong Kong government to protect those who fear torture should they be returned to their home country. Prior to this decision, several court decisions in 2004 and 2007 stressed the importance of applying the high standards of fairness in assessing cases of people claiming risk of facing torture upon repatriation.9 The high standards of fairness “requires, amongst other things, the potential deportee be given every reasonable opportunity to establish his claim, decision- makers to make their own assessment taking into account all relevant considerations, and if claim is rejected reasons sufficient for consideration of subsequent review action be given to claimants.”10 Due to the 2004 court decision, the Hong Kong Immigration Department established an administrative screening mechanism for claims under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Under this system, the decision of the Immigration Department can be appealed to the Torture Claims Appeals Board (TCAB).
With the screening mechanism in place, the claimants can avail of publicly-funded legal assistance under the Duty Lawyer Service. More than three hundred fifty barristers and solicitors, “who received training from the Law Society on CAT screening and related matters, are on a roster to provide legal assistance to claimants, including completing the claim form, accompanying claimants at screening interviews, examining the case and assessing merits of appeal for claimants aggrieved by the decision of the [Immigration Department], and representing claims at oral hearings (if any) on appeal.”11
The Immigration Department has announced the plan to establish a Unified Screening Mechanism (USM) for non- refoulement claims (based on CAT, Article 3 of the Hong Kong Bill of Rights on torture, and persecution). Under the USM, “claimants will complete a unified claim form to provide all grounds of the non- refoulememt claim or all available documentary evidences.”12
In Indonesia, organizations of lawyers as well as individual lawyers established the Indonesian Civil Society Network for Refugee Rights Protection or SUAKA.13 It has two main aims:

  1. 1. To ensure access to legal advice and representation for asylum seekers during the UNHCR RSD process (by having internal capacity building activities such as training and exchange with other organizations in the region [internship]; establishing a standard operational procedure on asylum seeker case work based on international standards; expanding the pool of Pro Bono Lawyers committed to assisting asylum seekers through roadshow to at least five law firms based in Jakarta, including the Indonesian Bar Council (PERADI) and capacity building on refugee law by training and involvement in case work).
  2. 2. To ensure public awareness through coordination and advocacy (this includes collection of data and summary of situation and issues in Indonesia; formulating a Term of Reference for SUAKA, including its background, purposes, and membership; creating the network profile, establishing a data center on the updated situation of refugees in Indonesia, may be in cooperation with universities, among others).

In Japan, the Ministry of Justice (MOJ) has a collaborative relationship with the Japan Federation of Bar Associations (JFBA) and other non- governmental institutions in addressing the refugee and asylum seekers issue. Those who apply for refugee status after entering Japan are less likely detained, while those who apply upon arrival at the airport are usually held in detention. The MOJ has agreed to allow JFBA to provide counsel to those applying for refugee status upon arrival at the airport. The lawyer can help the applicants avoid being detained while their applications are being processed. The MOJ, JFBA and other institutions are also discussing the provision of legal assistance during the hearing of the applications, as well as alternatives to detention. But Japan does not yet have a refugee law that would govern the refugee status applications. Japan also has a very low rate of refugee status applications approval.
It must be clear however that these developments are not free from criticisms. Local groups providing support to refugees, asylum seekers, and others would be able to identify possible weaknesses and deficiencies in the legal and governmental systems in place.

Challenges

The Asia-Pacific Symposium on refugees, asylum seekers, stateless people, and internally displaced persons jointly organized by The Japan Association for Refugees (JAR) and the Asia Pacific Refugee Rights Network (APRRN)14 on 8-11 September in Tokyo yielded a number of challenges that face the non-governmental institutions. They consist, among others, of the following:

  • - Creation of trust between the legal aid providers and the UNHCR staff and government officials
  • - Addressing factors (such as reasons for the application) that lead UNHCR and the government to deny the application (e.g., any indication of desire to have better life has been seen as a reason for denial)
  • - Determining ways to reach the unreached refugees and asylum seekers
  • - Having the capacity to know whether the application is based on genuine situation or not (having a fake basis may lead to the loss of reputation of the legal provider)
  • - Maintaining the quality of the service being provided
  • - Maintaining close ties with the community and other groups that are providing other services.

The refugee status applicants and asylum seekers also face many challenges including the proper translation and presentation of their problem to the legal service provider; having their cases treated as refugee issue and not simply an immigration matter; the government officials’ failure to see the human rights dimension of the applications.
In many countries in Asia- Pacific where there is no legal framework on refugees, asylum seekers, stateless people and
internally displaced persons, the challenge lies in lobbying for the enactment of law that subscribes to the international refugee and human rights standards.
Similarly, there is a challenge in lobbying for the establishment of legal mechanisms that would protect refugees, asylum seekers, stateless people and internally displaced persons as they apply for status recognition or support from the government.

Vision for Protection of Refugees, Asylum Seekers, Stateless People and Internally Displaced Persons

A vision statement on regional protection of refugees, asylum seekers, stateless people and internally displaced persons, drafted by APRRN, (13 August 2013 version) states:

The APRRN envisions a region wherein all refugees, asylum seekers, stateless persons and internally displaced people (IDPs) have equal and adequate access to assistance, protection and timely durable solutions. We envision a region wherein government s, non-government al and intergovernmental agencies engaged in regional protection efforts collaborate effectively towards this common purpose, with respect for their differentiated roles and responsibilities.

The draft vision statement has provisions on major issues facing the refugees, asylum seekers, stateless people and internally displaced persons, namely:

  1. 1. Freedom from violence, coercion, deprivation, exploitation and abuse
  2. 2. Access to essential services and livelihoods
  3. 3. Legal protection
  4. 4. Access to durable solutions.

On the section on “Freedom from violence, coercion, deprivation, exploitation and abuse,” the draft vision statement mentions the need to actively pursue the establishment of alternatives to detention so that “displaced persons are not subject to arbitrary or inhumane forms of immigration detention.” One research report defines “alternatives to immigration detention” as15

Any legislation, policy or practice that allows for asylum seekers, refugees and migrants to reside in the community with freedom of movement while their migration status is being resolved or while awaiting deportation or removal from the country. 

The research report argues that detention is

  1. 1. not an effective deterrent
  2. 2. interferes with human rights, and
  3. 3. harms health and wellbeing.

It introduces the so-called Community Assessment and Placement model (CAP Model), which is based on good practices in different parts of the world. The CAP Model has five main concepts:16

  1. 1. Presume detention is not necessary - a ‘presumption against detention’ establishes each individual’s right to freedom of movement and helps to prevent immigration officials from resorting to confinement when other options may suffice.
  2. 2. Screen and assess the individual case – this helps authorities identify and assess levels of risk and vulnerability as well as the strengths and needs of each person.
  3. 3. Assess the community setting – this involves assessment of factors in the community setting that can either support or undermine a person’s ability to comply with immigration authorities.
  4. 4. Apply conditions in the community setting if necessary – additional mechanisms (individual undertakings, monitoring, supervision, intensive case resolution, and negative consequences for non- compliance) can be introduced in the community to promote engagement with authorities that do not place undue restrictions on freedom of movement.
  5. 5. Detain only as a last resort in exceptional cases – in majority of cases, immigration detention should be avoided in line with the international human rights standards.

On “Access to durable solutions,” the draft vision statement envisions improved voluntary repatriation, local integration, and resettlement programs, as well as other programs beyond these three traditional solutions. UNHCR reports that its multi-year Solutions Strategy for Afghan Refugees to Support Voluntary Repatriation, Sustainable Reintegration and Assistance to Host Countries promotes “continued voluntary repatriation, strengthened reintegration through community-based investments in areas of high return in Afghanistan, and the preservation of asylum space and assistance to refugee- affected and host areas in neighbouring countries.”17 This strategy was endorsed by Afghanistan, Iran and Pakistan. This is an example of UNHCR’s comprehensive solutions strategy. UNHCR also reports that its

reintegration projects aim to promote the enjoyment of economic, social, legal and cultural rights. Yet, for reintegration to be sustainable, they must also strengthen harmonious relations and promote reconciliation at the community level. Community- based peacebuilding and coexistence activities are therefore important elements of re-integration efforts.18

Regarding self-sufficiency, the 13 August 2013 version of the draft vision statement provides:

We envision a region wherein:

  1. 1. Displaced persons, including those who are highly vulnerable, actively participate in all decisions affecting their lives, have access to accurate and up to date information about actions taken on their behalf, and explicit efforts are made to listen to, consult and engage affected communities in order to continually improve existing programs and ensure accountability to vulnerable communities.
  2. 2. Those affected or assisted are free to organise, advocate and support each other in accessingand enjoying their rights, and are supported to identify, and where necessary to establish, supportive networks and community self-help groups.
  3. 3. States actively support the efforts of refugees to attain self- sufficiency both to enhance local integration and prospects for other durable solutions.

On Partnerships for the Creation of a Supportive Operating Environment:

  1. 1. Governments and civil society collaborate to promote refugee rights and human rights while combatting racism and xenophobia and building broad host community support for the protection of refugees, asylum seekers, stateless persons and IDPs.
  2. 2. Refugees, asylum seekers, stateless persons and IDPs are able to build strong community-based orgnisations (CBOs) that represent their members. Governments,

UNHCR and civil society groups must recognize and work to strengthen the capacity of CBOs to support and represent their members, and ensure that community leaders are able to do so without the threats to their security, unnecessary restrictions or jeopardising their prospects for durable solutions.
The review of this APRRN vision statement continues through the consultation with various stakeholders.19

Mr. Jefferson R. Plantilla is the Chief Researcher of HURIGHTS OSAKA.

For further information, please contact HURIGHTS OSAKA.

Endnotes

1. 2013 UNHCR country operations profile - Asia and the Pacific, Office of the United Nations High Commissioner for Refugees, in www.unhcr.org/pages/4a02d8ec6.html.
2. United Nations Office of the High Commissioner for Refugees, UNHCR Global Report 2012 (Geneva: UNHCR, 2013), page 146.
3. 2013 UNHCR country operations profile - Asia and the Pacific, op. cit.
4. 2013 UNHCR regional operations profile - East Asia and the Pacific, Office of the United Nations High Commissioner for Refugees, in www.unhcr.org/pages/49e45b276.html.
5. The information on the Refugee Act (Law No. 11298) is based on the unofficial translation prepared by the UNHCR Representation in Korea.
6. China Briefing, China's New Exit-Entry Law Targets Illegal Foreigners, www.china-briefing.com/news/2012/07/06/chinas-new-exit-entry-administration-law-targets-illegal-foreigners.html.
7. “UNHCR lauds the Philippines for new mechanism to protect refugees and stateless people,” 6 November 2012, www.unhcr.org/5098ced59.html.
8. Ubamaka, Edward Wilson v Secretary for Security & Director of Immigration, FACV No. 15 of 2011 on appeal from CACV No. 138 of 2009, 21 December 2012, http://legalref.judiciary.gov.hk/lrs/
common/search/search_result_detail_frame.jsp?DI S =84948&QS =%24%28ubamaka%29&TP=JU.
9. See Sakthevel Prabakar v. Secretary for Security (2004) 7 HKCFAR 187, and FB & Ors v. Director of Immigration and Secretary of Security, HCAL 51, 105-107 and 125-126/2007) cited in Screening of Non- Refoulement Claims, LC Paper No. CB(2) 1465/12-13(01), June 2013, pages 1-2.
10. Footnote 1 of Screening of Non-Refoulement Claims, ibid.
11. Screening of Non-Refoulement Claims, ibid., page 5.
12. Ibid., page 4.
13. The current members of SUAKA are the following: Jakarta Legal Aid Foundation (LBH Jakarta, Lembaga Bantuan Hukum Jakarta), Human Rights Working Group (HRWG), Indonesia Legal Aid Institution Indonesia (YLBHI, Yayasan Lembaga Bantuan Hukum) and individuals who are committed to work for refugee protection.
14. APRRN Symposium: Towards the Development of a Regional Protection Framework (8-11 September 2013 Tokyo), www.aprrn.info/1/index.php/news/228-aprrn-symposium-towards-the-development-of-a-regional-protection-framework.
15. International Detention Coalition and La Trobe Refugee Research Centre, There are Alternatives – A handbook for preventing unnecessary immigration detention (Melbourne: International Detention Coalition and La Trobe Refugee Research Centre, 2011), page 12.
16. Ibid., see pages 19-50.
17. United Nations Office of the High Commissioner for Refugees, UNHCR Global Report 2012, op cit., page 56.
18. Ibid., page 57.
19. The full text of the draft vision statement is available at www.aprrn.info/1/index.php/news/53-announcements/237-the-asia-pacific-refugee-rights-network-s-vision-for-regional-protection?highlight=WyJ2aXNpb24iLCJzdGF0ZW1lbnQiLCJ2aXNpb24gc3RhdGVtZW50Il0=.


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