EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER’S PROGRAMME STANDING COMMITTEE
NGO Statement on Asia and the Pacific – Extended Version
This statement has been drafted in consultation with, and is delivered on behalf of, a wide range of NGOs. It attempts to reflect the diversity of views within the NGO community.
NGOs continue to be deeply concerned by the continued lack of protection for refugees in most parts of the Asia Pacific region. This lack of protection is characterised by rights violations such as arbitrary arrest and detention, no right to work, and limited or no access to health services, education and vocational training opportunities. Refugees also face lengthy registration and refugee status adjudication procedures. NGOs reiterate the call on States to protect and not violate these rights, to seek alternatives to detention, and to provide refugees with legal aid, psychosocial support, cultural orientation, and community integration options.
Ratification of the Refugee Convention and Introduction of National Refugee Legislation
NGOs note with continuing concern that only 26 of the 61 countries located in the Asia and Pacific region are State parties to the 1951 Refugee Convention and/or its 1967 Protocol. NGOs call on governments to ratify these treaties and to ensure the protection of refugees and stateless persons.
Several governments in the Asia-Pacific region are to be commended for taking important steps towards exploring and implementing alternatives to detention. However, the increasing use of immigration detention remains a growing concern across the region for refugees, asylum seekers, migrants, and stateless persons. A number of key, common concerns have been identified in many Asia-Pacific countries, including:
The growing use of arbitrary, penal and punitive detention in conditions that fail to meet minimum international standards;
Lengthy and prolonged periods in detention, with restrictions on or denial of access to refugee status or statelessness determination procedures and/or judicial review of detention;
Lack of access to legal assistance and representation as well as proper interpretation services also remain key issues;
Restrictions on or denial of access to places of detention;
Detention of vulnerable groups: children (including unaccompanied minors); pregnant women; those with physical and mental health conditions; the elderly; and refugees, asylum seekers and UNHCR registered individuals;
The impact of detention on these vulnerable groups, including insecurity, separation (of children and families), lack of freedom, respect and privacy, isolation, cultural insensitivity and deterioration of physical and mental health.
Civil society calls for governments in the Asia-Pacific region to initiate and strengthen initiatives for alternatives to prevent unnecessary and damaging detention. States must ensure that the right to liberty is ensured for those seeking international protection, and that immigration detention is only ever used as an absolute last resort. States must also ensure that children and other vulnerable groups are not subject to immigration detention.
Refugee Status Determination (RSD)
With regards to refugee status determination (RSD), NGOs are concerned about due process procedures across the region. UNHCR’s RSD adjudication in Thailand, Indonesia, Malaysia, India and Hong Kong differs substantially, with long and opaque processing, having adverse effects on the lives of asylum seekers, and offering little or no protection. UNHCR falls short of meeting its own procedural guidelines on RSD especially on legal representation in Thailand and Malaysia. Such legal representation is an essential part of procedural fairness and is a critical element in ensuring that UNHCR is transparent and accountable. We urge UNHCR to set standards for States to follow, and do so by adhering to its own guidelines.
Stateless persons continue to be trapped in a legal limbo, often denied the most basic rights, including access to health care, education, housing, and jobs. It is dismaying to note that only five countries in the Asia Pacific region (Australia, Fiji, Kiribati, Philippines, and South Korea) are party to the 1954 Convention Relating to the Status of Stateless Persons and just three (Australia, New Zealand, and Kiribati) are party to the 1961 Convention on the Reduction of Statelessness.
Civil society expresses grave concern over Australia’s broadened negative measures, such as the denial of the right to work for new arrivals (which is in breach of articles 17,18 and 19 of the 1951 Refugee Convention), forced transfer of asylum seekers to Nauru and Papua New Guinea, and involuntary returns to Sri Lanka of people denied access to an asylum process or any form of independent legal advice. In addition, there are significant concerns about the prospect of more forced returns to Afghanistan to situations where the safety of those returned cannot be guaranteed. Australia's decision in August to increase resettlement conducted in cooperation with UNHCR by 6000 places is generous and laudable but, unfortunately, Australia's record on refugee protection is being significantly undermined by new policies being applied to asylum seekers and the continuation of its mandatory detention policy. The Australian government needs to ensure that deported minors and deportees, their children and families, are returned to safe and secure situations where the best interests of the children are a major consideration. Australia also needs to re-open the cases of those wrongfully deported.
Civil society expresses its concern over the low rates of recognition of refugees in Cambodia. The Cambodian government is yet to develop an open, transparent refugee determination procedure in line with international standards. Civil society is also concerned over the reduced UNHCR presence in the country, which could have detrimental effects on refugees and asylum seekers in the country.
Civil society continues to emphasize that China, long a signatory of the 1951 Refugee Convention, still has no domestic refugee protection system implementing the treaty. Civil society, however, recognizes with hope that on 30 July 2012, China passed a new Exit-Entry Administration Law, which includes a provision in Article 46 that would recognize refugees and provide them with legal status and permission to remain. Civil society requests that international monitors be allowed access to validate the safety and protection of refouled asylum seekers.
Civil society continues to express concern over the government of China’s refusal to extend the 1951 Refugee Convention to Hong Kong and its firm policy not to grant asylum, despite repeated recommendations made by international human rights treaty bodies in their periodic reviews. As a result, the UNHCR sub-office is forced to fill the gap in refugee status determinations.
Civil society commends Hong Kong for the passage of the Immigration (Amendment) Ordinance 2012, which provides for a statutory framework for screening torture claims, in compliance with Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which it is a party. Nonetheless, civil society hopes that the government - under this new legislation that came into force on December 3, 2012 - will address many of the challenges under the previous 'enhanced screening mechanism'. These have included backlogs in cases, and concerns over procedural fairness and effectiveness.
Civil society is also concerned about the inadequacy of policies to address the basic socioeconomic needs of asylum seekers refugees and torture claimants in Hong Kong, particularly around the rights to food, housing, social security, health and education. The multiple deprivations they face are further compounded by a lack of access to livelihood and self-reliance opportunities. Even qualified torture claimants and refugees awaiting resettlement are legally barred from working, volunteering and receiving vocational training in Hong Kong, despite the fact that their cases often take months or even years to process.
Irrespective of which party takes responsibility for RSD and/or refugee protection and welfare, the government and UNHCR should work together to ensure that refugees have a fair RSD process and an opportunity for a normal life in which their human rights are respected, protected and fulfilled.
The decision of the government of India to provide 'long term visas' to all refugees is a welcome step, but much more needs to be done for refugees to be given these 'visas'; and institutions need to be sensitized to ensure that refugees are able to benefit from this policy. India should ensure that refugees receive adequate protection under the law and undertake swift action to punish those found exploiting refugees and asylum seekers. India should ensure refugees and asylum seekers have access to justice, health and education without discrimination. Civil society expresses concern over continued discrimination, intimidation, and sexual and gender-based violence faced by refugees and asylum seekers, particularly from Africa and Myanmar.
UNHCR needs to step up its efforts towards the protection of refugee communities in India, particularly the Rohingyas who face detention, arrests and incarceration for long periods of time and discrimination on the basis of religion and lack of legal status. UNHCR should provide reasoned decisions for rejecting applications for refugee status either at the appeal stage or at the time of re-opening. This is crucial for the protection of life and liberty of an individual, a constitutional and fundamental right recognized by democratic states. UNHCR in India should be given access to all refugee communities in the country.
Civil society welcomes the efforts by the government of Iran and UNHCR in providing protection and assistance to Afghans refugees for more than three decades. Innovative projects on health insurance and capacity building for Afghan refugees towards improving conditions in the country and sustainable repatriation are welcomed.
Civil society expresses concern on financial challenges Afghan refugees face due to economic mismanagement and international sanctions that have resulted in high inflation, declining living standards, a sharp decline in value of Iranian currency, and the removal of subsidies for basic goods. This has had a particularly harsh impact on the living conditions of refugees. Women and children are the hardest hit.
We call on the Iranian government to facilitate the work of humanitarian international NGOs and provide an enabling environment that allow new international NGOs to work in Iran in supporting refugees.
In addition, we urge the state to focus its policies on enhanced integration of Afghan refugees to decrease tensions with host communities. The tense economic situation has lead to increased xenophobia towards Afghans in the country.
Civil society once again wishes to recognize and applaud Japan for being the first country in Asia to establish a pilot resettlement project. We encourage Japan to make it a permanent part of its protection framework. Civil society expresses concern that no refugees were resettled during the third year of the pilot, and recommends expansion and flexibility of eligibility criteria, and improved integration programs. All eyes are on this project, as the first in Asia, and everyone involved wants to see it succeed. Civil society domestically, regionally, and internationally remains committed to working collaboratively with the Japanese government to support the project in its implementation.
Civil society remains concerned about the low recognition rate (0.7 per cent in 2011) and due process in refugee status determination in Japan, and recommends further development of a comprehensive refugee protection law and policy. Civil society also recognizes and applauds the initiation of regular tripartite dialogue in Japan involving the government and civil society (represented by the Forum for Refugees Japan and the Japan Federation of Bar Associations). We applaud the initiation of collaboratively implemented projects, including a pilot airport reception project and a working group on 'alternatives to detention.'
Civil society condemns the continued non-recognition of refugee rights by the Malaysian government, and the continued arrest and often-prolonged detention of refugees, including minors and vulnerable populations, in conditions that do not meet basic international standards.
We draw urgent attention to the increased vulnerability of, and violence against refugee girls and women, who are at particular risk of sexual violence and exploitation at the hands of both their employers and law enforcement personnel, and who often live in crowded conditions where sexual and gender-based violence (SGBV) is a serious concern.
While we applaud the cooperation by Malaysia in the rescue of 40 asylum seekers by the vessel Nosco-Victory, we are concerned by the continued detention of this group, including children, and the lack of any discussion around long-term durable solutions for the Rohingya. We continue to be disappointed by the Malaysian government’s non-cooperation with civil society on protecting refugee rights.
We condemn in the strongest terms the refoulement to China of six Uighur asylum seekers who were in the process of having their claims for asylum processed by UNHCR. We call upon the Malaysian government to respect, in no uncertain terms, the international customary law principle of non-refoulement and to ensure that no future, forcible returns take place of asylum seekers and refugees to countries where they are at risk of persecution.
UNHCR should continue to improve protection efforts and the search for durable solutions for over 100,000 displaced Rohingya in the Rakhine State. UNHCR should play a leadership role with other humanitarian actors in seeking to reduce inter-communal tensions in Rakhine state and to build support to encourage the government of Myanmar to respect the rights of the Rohingya community and to take steps to positively resolve their rights to nationality.
Civil society is concerned about the proposed Immigration Amendment Bill. This bill will allow the mandatory detention of groups of arriving undocumented asylum seekers, and also includes the suspension of refugee status procedures; restrictions on family reunion; and a requirement to re-establish refugee status after a period of three years. The proposed changes will also affect the rights and treatment of children who form part of family groups arriving as part of a 'mass arrival group'. The bill is in conflict with New Zealand’s international obligations to refugees.
NGOs express deep concern over the recent announcement by the New Zealand government to take 150 refugees annually from Australia, potentially from the offshore detention centres of Nauru and Manus Island, and to also consider sending any future boat arrivals to these offshore processing detention centres. This decision will result in a reduction in the number of resettlement places available for referral by UNHCR at time when many more resettlement places are desperately needed. It is worrisome that organisations tasked with settling refugees in New Zealand have faced considerable budget cuts in recent times.
Civil society welcomes the decision of the government of Pakistan to extend the legal stay of Afghan refugees in Pakistan for six months up to 30 June 2013. Civil society is still deeply concerned about the future of Afghan refugees. Afghan refugees are uncertain about their status in Pakistan. Civil society calls on the government of Pakistan to support and facilitate the protection of Afghan refugees until the conditions in Afghanistan are deemed to be conducive for their return. In this regard the government of Pakistan should support UNHCR Pakistan.
Civil society commends the continuing protection environment provided by the Philippine government to refugees. Civil society also commends the initiative to map stateless populations in the country, following the country’s ratification of the Statelessness Convention in 2011. While there is a relatively good protection environment, civil society encourages the Philippine government to consider strengthening refugee protection by starting the process for enacting a domestic refugee law. In addition, civil society also encourages the Philippine government to continue its support for the IDP Bill and see it through to its conclusion into a domestic IDP law. Lastly, civil society commends the Philippine government for the positive progress in the peace talks in Mindanao, and encourages the Philippine government to seize this opportunity to provide durable solutions to the situation of IDPs in Mindanao, many of whom remain without durable solution.
Civil society condemns the Singaporean government for preventing the docking of the vessel Nosco Victory, which had rescued 40 people, including women and children, after the ship they were travelling in had sunk in the Bay of Bengal.
Civil society commends the progress made in resettling IDPs in particular demining programmes. Civil society is concerned that there still remain a large number of IDPs, contrary to government claims. NGOs express grave concern on the continued militarization of the country, which is the biggest impediment to the resettlement of IDPs. Not only does this impinge on the fundamental rights of the IDPs, it also creates insecurity and discontent among them. This in turn will inhibit national reconciliation in the future. We urge the government of Sri Lanka to accelerate the implementation of the recommendations relating to the Lessons Learnt and Reconciliation Commission (LLRC) with regards to the resettlement of IDPs by returning them to their place of origin or by providing proper shelter to enable them to rehabilitate in the new settlement area. This should be done in collaboration with human rights and humanitarian organisations to ensure the protection of their rights.
Civil society is deeply concerned about the future of the hundreds of Rohingya refugees who have been detained in Thailand. Civil society expresses its outrage at recent news of Thai authorities pushing away back into the sea boats with refugees on board. While civil society supports Thailand and the international community in seeking a regional solution to the Rohingya issue, civil society denounces the detention of Rohingya and other refugees and asylum seekers while waiting for durable solutions.
Thank you Madame Chairperson.