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Letter to Australian Minister of Immigration Chris Evans on Processing New Asylum Claims from Sri Lanka and Afghanistan

[HRW, Thursday, 15 April 2010 12:01 No Comment]

Dear Mr. Evans,

We write to you to express our deep concerns that changes to Australia’s asylum processing system announced on April 8, 2010 violate Australia’s obligations under the 1951 Refugee Convention and the 1967 Protocol not to discriminate in the treatment of refugees. As Article 3 of the Refugee Convention states: "The Contracting Parties shall apply the provisions of this Convention to refugees without discrimination as to race, religion or country of origin."

You announced on April 8 that Australia has suspended the processing of new asylum applications from Sri Lankan and Afghan nationals effective immediately because the situations in both Sri Lanka and Afghanistan are "evolving." Human Rights Watch closely monitors the human rights situation in both countries and our research shows that conditions in both countries are such that individuals returned will still be vulnerable to persecution and lack adequate protection. More fundamentally, this suspension deprives asylum seekers of their right to seek asylum from persecution, as guaranteed by article 14 of the Universal Declaration of Human Rights.

While it is accepted international practice in the event of mass influxes for host countries to suspend individual asylum adjudications for the purpose of providing temporary protection on a blanket basis to nationals of countries experiencing armed violence and other generalized conditions that make return dangerous, beneficiaries of temporary protection regimes are normally accorded rights and benefits consistent with their need for protection. Australia’s suspension of asylum procedures purportedly because conditions in the country of origin have improved and because, according to the government announcement, "it is likely, in the future, more asylum claims from Sri Lanka and Afghanistan will be refused," is, as far as we know, unprecedented. It is quite astounding that a presumption about future refusals based on how the situation might evolve in their home countries, will result in extending mandatory detention for members of these two nationality groups who arrive irregularly by boat, and will prevent other refugees from these nationalities from enjoying their rights and benefits as refugees because of the failure of the government to recognize their status.

Even in those circumstances where governments decide to lift temporary protection regimes because of improvements in human rights conditions in countries of origin, they must still provide individual asylum seekers from such countries the opportunity to claim an ongoing need for protection and to examine those individual claims. To suspend asylum processing for two nationalities by suggesting that more of their refugee claims will be refused in the future while continuing to examine the claims of members of all other nationality groups is discriminatory on its face. While asylum procedures are suspended for Afghans and Sri Lankans because the situations in their countries are "evolving," asylum procedures will apparently keep apace for nationals of countries that are not evolving, including countries that have produced far fewer refugees than either Afghanistan or Sri Lanka.

Afghanistan

With respect to Afghanistan, your statement on April 8 makes a blanket presumption of safety when it suggested that, "The Taliban’s fall, durable security in parts of the country, and constitutional and legal reform to protect minorities rights have improved the circumstances of Afghanistan’s minorities, including Afghan Hazaras." Our research shows, however, that the human rights situation in Afghanistan continues to deteriorate, with a growing insurgency, continued impunity making justice elusive for vast numbers of Afghans, and egregious violations of the human rights of women.

According to the United Nations High Commissioner for Refugees (UNHCR), the most common types of claims in Afghanistan are (i) persons perceived as contravening Sharia law or persons who are members of minority religious groups; (ii) ethnic minority groups; (iii) persons associated with or perceived as supporting the government, including civil society members; (iv) actual or perceived supporters of armed anti-government groups; (v) journalists; (vi) persons associated with the People’s Democratic Party of Afghanistan or other left-aligned political parties; (vii) women; (viii) children; and (ix) persons at risk of becoming victims of blood feuds.

The armed conflict in Afghanistan continues to intensify, and despite more efforts to reduce civilian casualties by international military forces, the presence of large additional numbers of foreign forces and increased military operations may result in higher civilian casualties.

Insurgent groups often conduct indiscriminate attacks, which results in the majority of civilian deaths. They have been found to use civilian shielding, abductions and arbitrary detention, torture, and cruel methods of killing including beheadings. The number of targeted assassinations continues to rise, directed at civilians in the local population who are seen to be associated with the government or international military.

2009 saw the highest number of civilians killed in the conflict-2412, according to figures from the UN’s mission in Afghanistan. Preliminary figures from the first two months of 2010 show significantly more civilian deaths than in the same period last year.

Afghan women face additional threats, intimidation, and sometimes assassinations. Several prominent women in public life have been killed, including provincial councilor Sitara Achakzai, who was shot dead in April 2009. The government has not prosecuted anyone for her murder, or for the September 2008 murder of Malalai Kakar, the former police commander in Kandahar.

Ethnic and religious minorities remain at risk of persecution, particularly in areas of the country where the insurgency is strong. Journalists face threats and intimidation from the insurgents, the government, warlords and other regional strongmen. Civil society activists and human rights defenders are also subject to regular threats and attacks.

The government is unable to offer protection to civilians in conflict areas, but also in significant areas of the country where warlords and other regional strongmen retain control. In these areas there are reports of the use of private jails, threats, intimidation, land grabbing, gang rape, and murder.

The Afghan government itself is responsible for serious rights violations, including the use of torture in detention, particularly in the hands of the National Directorate of Security (NDS), the intelligence service. In December 2009 Abdul Basir died while in an NDS detention facility. The NDS said that he committed suicide by jumping out of a window while under interrogation; his family believe his death was the result of torture.

Women and girls continue to face egregious human rights violations. The UN estimates that more than 70 percent of marriages are forced, and that more than half involve girls younger than 16. Sexual violence, honor killings, and domestic violence are also prevalent problems. There is little recourse for women in either formal or customary justice mechanisms. In tribal areas, use of customary law may leave women and girls treated as property, or forced into marriage as compensation for crimes (baad). In 2009 the parliament and President Hamid Karzai adopted a personal status law for Shia Muslim women that codified discriminatory customs that require wives to seek their husbands’ permission before leaving home, grant child custody rights only to male relatives, and permit a husband to cease maintenance to his wife if she does not meet her marital duties, including sexual duties. Whether for forced marriage, violence, or discrimination under customary law, women and girls face significant obstacles to seeking help from the government, including lack of information and access, severe social stigma, poor training of police and judges, and the risk of imprisonment for breaking social norms.

Sri Lanka

While your April 8 statement correctly identifies certain areas of progress with regards to return of displaced persons and conditions in the camps in northern Sri Lanka, it fails to recognize that certain groups in Sri Lanka remain extremely vulnerable to persecution and might have a valid claim for asylum. Since the January presidential elections, the authorities have arrested, harassed, and intimidated journalists and media workers, civil society activists and opposition party members and supporters. Journalists and opposition supporters have also been physically attacked and threatened. One journalist critical of the government remains missing after he disappeared two days before the election.

Another particularly vulnerable group is people suspected of having been involved with the Liberation Tigers of Tamil Eelam (LTTE). Almost a year since the end of the conflict that resulted in the LTTE’s defeat, the government still maintains a state of emergency, giving security forces broad powers to detain suspects without complying with due process guarantees. More than 9,000 people, whom the government detained from among the internally displaced, are being held in so-called rehabilitation centers on suspicion of involvement with the LTTE. Human Rights Watch research has shown that the government has deprived many of these detainees of their right to a lawyer and the right to have a court review the legality of their detention, giving rise to concerns that some detainees might have been ill-treated or subjected to enforced disappearance.

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While we recognize the Australian government’s desire to tackle the problem of "people smuggling," an asylum seeker’s turn to a smuggler to escape persecution has no bearing over the validity of his or her refugee claim. As we show, the human rights conditions in both countries are far from stable, and in some cases asylum seekers may resort to being smuggled, taking great personal risk in doing so, in order to flee persecution. We find the government’s April 8 announcement of the suspension of asylum procedures, jointly with the announcement of its enhanced measures to stop people smuggling, to insinuate criminality on the part of all asylum seekers. To imply that the suspension of asylum processing will in some way thwart people smuggling fundamentally confuses those who profit from-and in the case of human traffickers, prey upon-asylum seekers with asylum seekers themselves who need protection. Doing so tars the victims with the stigma of the crimes committed against them.

We also understand that irregular migration is a sensitive issue in Australia, particularly in an election year. When the Labor government came to power in 2007, it reversed some of the previous government’s policies that undermined basic rights of refugees, such as ending the policy of mandatory detention of all asylum seekers, ending the "Pacific Solution" use of Nauru and Manus islands to detain asylum seekers, and replacing the temporary visa protection scheme with permanent protection for recognized refugees. This won your government immediate respect internationally by showing its commitment to uphold international human rights standards. However, current Australian policy states that all asylum seekers who arrive by boat remain subjected to mandatory detention and most are sent to Christmas Island. Because of the suspension of their asylum claims Afghans and Sri Lankans, including children, who newly and irregularly arrive by boat, will be made to endure the hardship of additional months of detention, regardless of the merits of their refugee claims. We ask you to maintain the standards your government pledged to uphold when it came into power by continuing to screen asylum seekers from any country where they may risk persecution.

UNHCR guidelines on detention of asylum seekers hold that as a general principle "asylum seekers should not be detained" and that "for detention of asylum seekers to be lawful and not arbitrary, it must comply not only with applicable national law, but with Article 31 of the Convention and international law. It must be exercised in a non-discriminatory manner and must be subject to judicial or administrative review." We are particularly concerned that Australia’s mandatory detention of maritime asylum seekers arriving irregularly, in effect, penalizes them for their method of arrival in contravention of Article 31 of the Refugee Convention.

The mandatory detention of all new irregular boat arrivals from Afghanistan and Sri Lanka claiming asylum, including children, also violates Australia’s responsibilities under the 2005 Migration Act and the Convention on the Rights of the Child, which under article 37 permits the detention of children "only as a measure of last resort."

We strongly believe that in the Asia-Pacific region, where many countries have not even ratified the Refugee Convention, Australia should set a positive example by showing that it takes its human rights obligations seriously by upholding international standards rather than undermining them.

We look forward to your response and would be happy to discuss these matters further at your convenience.

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