From: @media-lab.mit.edu:Canh_Le.EMERYVILLE@qmuucp (Canh Le)
Newsgroups: soc.culture.vietnamese
Subject: Speech on the CPA in Manila
Date: 17 Nov 92 13:40:45 GMT
Article-I.D.: news.1992Nov17.134045.5664
Reply-To: rmail@tribe.tribe.com
Organization: SCV Relay
Originator: daemon@media-lab.media.mit.edu


                       Subject:                               Time:11:10 AM
  OFFICE MEMO          Speech on the CPA in Manila            Date:11/16/92
The following speech was presented at the Colloquium on the Comprehensive Plan
of Action, Ateneo de Manila University, Quezon City, Philippines, October 25-28,
1992 by Mr. Le Xuan Khoa, president of the Indochina Resource Action Center
(IRAC).  For information on IRAC please contact

     Indochina Resource Action Center
     16281 16th St., N.W. 3rd Floor
     Washington D.C. 20009
     Tel:(202)667-4690
     Fax:(202)667-6449

This report is posted by Canh Viet Le, Secretary/Treasurer of the IRAC Board of
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<<<<<< Attached TEXT file follows >>>>>>


Indochina Resource Action Center


16281 16th St., N.W. 3rd Floor, Washington D.C. 20009 Tel:(202)667-4690
Fax:(202)667-6449

DOES THE REFUGEE STATUS DETERMINATION PROCEDURE UNDER THE CPA MEASURE UP TO
INTERNATIONAL STANDARDS? A HUMANITARIAN POINT OF VIEW

By Le Xuan Khoa

Since the Comprehensive Plan of Action (CPA) was adopted by the international
community in June 1989, two major components of the Plan-refugee status
determination (screening) and repatriation-have been seriously criticized by
human rights advocates, NGO observers, and refugee workers throughout the
region. Because persons determined not to be refugees have no choice other than
returning voluntarily to their country of origin or languishing in squalid
detention centers with the prospect of being forcibly repatriated at any time
in the future, it is important that every effort be made to ensure the
screening process is conducted in accordance with internationally accepted
practice.

The issue here is not to question the screening procedures or guidelines
stipulated in the CPA because they are clearly derived from the 1951 Convention
relating to the Status of Refugees and its 1967 Protocol, the Universal
Declaration of Human Rights (1948), and other relevant international
instruments concerning refugees, including the Handbook on Procedures and
Criteria for Determining Refugee Status issued by UNHCR. The CPA further
specifies that these criteria "will be applied in a humanitarian spirit taking
into account the special situation of the asylum-seekers concerned and the need
to respect the family unit.''

Therefore, the real issue is to examine the refugee status determination
procedures as carried out in countries of first asylum, and to determine
whether or not they live up to international standards as required by the just
and humane spirit of the CPA. Since my colleague Arthur Helton has reviewed
these status determination procedures from the standpoint of a human rights
lawyer, I want to speak from a moral perspective, focusing on major
humanitarian shortcomings of the current refugee screening system. These
serious flaws, whether intentional or inadvertent, must be corrected
immediately because they threaten to invalidate the whole screening system,
and-by extension-the repatriation program.

The first serious shortcoming is the restrictive information and counseling
given to asylum-seekers about the screening interview. The brochure printed by
UNHCR in Vietnamese has been criticized as "grossly misleading" and that it
"misstates the law and leaves out essential information." Another report
revealed that "with the cooperation of the UNHCR, the Jesuit Refugee Service
has provided up to four lawyers at a time to do one-on one counseling. This
small group has been allowed in only two camps, High Island and Tai A Chau.
Jesuit Refugee Service has also prepared a counseling video to be used in small
group counseling sessions, but the video has been put in use at High Island
only." The same restriction applies to the appeal process where asylum-seekers
have little or no access to legal advisory assistance. Former UNHCR field staff
in Hong Kong, Anne W. Gow, reported that "in December 1990, Vietnamese
asylum-seekers claimed to have been intimidated and interrogated by Government
officials in the detention centers because they had sought legal advice. The
situation has been deemed so serious a breach that the Bar Association of Hong
Kong planned to take the complaints to the Secretary for Security, Alistair
Asprey. "The result is, being Vietnamese and seeking legal advice is becoming
an indication you are suspect, said one lawyer." Ms. Gow further quoted Gladys
Li, Q.C., Chair of the Bar's Subcommittee on the Vietnamese: "It is of concern
to the Bar because obviously if this is what is happening, it is completely
unacceptable."

Since April 1991, as a result of an effort to improve the screening system by
UNHCR, limited access to non-UNHCR legal advisors has been allowed to
asylum-seekers in Palawan camp, Philippines, but continues to be a hindrance in
other first asylum countries.

The second shortcoming is the threatening atmosphere within which the
interviews are conducted. There are reports, from refugees and camp workers,
that intimidation is a regular feature of the interviewing process. It takes
the form of shouting and banging on the tables. This threatening attitude of
the examiners clearly contravenes the UNHCR Handbook on Procedures and Criteria
for Determining Refugee Status, which declares: "It will be necessary for the
examiner to gain the confidence of the applicant in order to assist the latter
in putting forward his case and in fully explaining his opinions and
feelings.''

Reliable reports allege that the Hong Kong examiners have been found to
disregard this directive altogether, and to ask questions that solicit only
yes/no answers from the applicants. Quite simply, this style of interviewing is
not conducive to eliciting the asylum-seeker's story.

The third shortcoming is the delay of notification of screening results.
Contrary to the CPA's requirement of "prompt advice of the decision in writing
within a prescribed period," asylum-seekers often wait many months for the
results of their screening decision. Similarly, notification of appeal
decisions takes an inhumanely long time, leaving the asylum-seekers in limbo
for yet more weeks and months. These unnecessary delays further the sufferings
of a vulnerable group of persons who are seriously at risk from the adverse
effects of prolonged detention.

The fourth humanitarian shortcoming is the separation of children from adults
who have been their de facto parents for several years. This arbitrary decision
contravenes the CPA guideline which calls for "a humanitarian spirit taking
into account the special situation of the asylum-seekers concerned and the need
to respect the family unit." Former Director of Community and Family Services
International, John Torgrimson, gave an example of a woman from Shek Kong who
was screened in as a refugee by the Immigration Department and her sibling
screened out by the special committee. "This is cruel and inhumane," Torgrimson
added. The separation of attached minors from older siblings or relatives who
are resettled results in the shattering of family ties and deep emotional
disturbance for many minors. Extended families are a norm in Asian culture, and
status determination and durable solution procedures should respect and
preserve such relationships.

Within the time limit of my presentation, I can highlight only the inhumane
character of some of the most serious flaws in the refugee status determination
process. These instances of injustice, coupled with harsh conditions imposed on
the daily life of asylum-seekers, have inevitably resulted in a series of
hunger strikes, violent incidents. self immolations, and suicide attempts.

Given the current reality that hardly anyone is leaving Vietnam any more and
that asylum-seekers are repatriating in great numbers-up to Vietnam's
absorption capacity- and with the prospect of normalization of relations
between the U.S. and Vietnam in the near future, it would appear that the
crisis which the CPA was designed to solve has evaporated to all practical
extents and purposes. At this final stage of the Vietnam exodus, it would be
not only inhumane but unnecessary to prolong the agony of the asylum-seekers.

It is against this backdrop that we ask why the screening procedures not be
applied in a humane and generous manner? Just as the criminal justice system
goes to great lengths to avoid condemning anyone who might be innocent, so the
refugee status determination procedure should go to similar lengths to avoid
the mistaken refoulement of even a single refugee. It is time now for the
international community to engage in a final humanitarian act by granting
refugee status to those unfortunate asylum-seekers, especially those in the
"grey area" of the screening process. Persons in this category include: former
military and civilian employees of the U.S. and the government of the Republic
of Vietnam, the remaining "land people" in Thailand, the so-called "attached"
minors, and members of families that have been persecuted by the communist
regime. The U.S. and other resettlement countries should redouble their efforts
to take in this last, special group of refugees from the Indochina war era.

Presentation at the Colloquium on the Comprehensive Plan of Action, Ateneo de
Manila University, Quezon City, Philippines, October 25-28, 1992.
Newsgroups: soc.culture.vietnamese