United States General Accounting Office

GAO Report to the Honorable

Robert K. Dornan, House of

Representatives

December 1996 VIETNAMESE

ASYLUM SEEKERS

A Review of Selected

Cases in Four

Southeast Asia

Countries

G O A

years

1921 - 1996

GAO/NSIAD-97-51

GAO United States

General Accounting Office

Washington, D.C. 20548

National Security and

International Affairs Division

B-275467 

December 31, 1996

The Honorable Robert K. Dornan

House of Representatives

Dear Mr. Dornan:

Your letters of April and May 1996 expressed concerns about the

implementation and outcomes of the Comprehensive Plan of Action (CPA)

for Vietnamese asylum seekers in Southeast Asia. Given the decision to

conclude the CPA and close all first asylum camps in the region by June 30,

1996, you asked that we examine selected cases that came to your

attention and review how the refugee status determination process

worked for these individuals. You specifically asked that we examine

family unity and victim of violence cases and, to the extent time permitted,

general refugee (merit) cases. Our objectives were to (1) review factual

information about these cases from the perspective of international

refugee criteria used under the CPA and (2) examine how the screening

process was implemented.

We selected 242 cases to review in Hong Kong, Indonesia, Malaysia, and

the Philippines from among the more than 500 cases provided by your

office. These cases generally involved asylum seekers who had been

denied refugee status under the CPA screening process. In reviewing cases,

we were mainly limited to examining case files maintained by the U.N.

High Commissioner for Refugees (UNHCR). Government officials in each of

the first asylum countries we visited denied our requests to interview

asylum seekers and review other case file materials. To supplement our

work, however, we met with officials from UNHCR, the first asylum

governments, U.S. embassies, and other nongovernmental groups who

were knowledgeable about the CPA. Because we were limited to case file

reviews, we could not independently verify the accuracy of the refugee

status claims made by the asylum seekers or make conclusions about the

appropriateness of the decisions made by the screening officials.

Furthermore, since we reviewed only a limited number of cases, our

findings cannot be generalized to other cases or be used to judge the

overall reasonableness of the CPA screening process. Further details are

contained in the scope and methodology section.

Background For several years after the fall of the South Vietnamese government in

1975, countries in Southeast Asia agreed to grant temporary asylum to the

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thousands of people who fled Vietnam. By the late 1980s, however, the

rate of resettlement was far less than the huge and growing influx of

asylum seekers from Vietnam. In response, the CPA was developed and

adopted by 75 countries in June 1989 to address the Vietnamese boat

people problem. It required anyone who arrived in first asylum countries1

after March 1989 to undergo a formal refugee status determination and

demonstrate they had a well-founded fear of persecution for reasons of

race, religion, nationality, membership of a particular social group, or

political opinion according to internationally recognized refugee standards

and criteria.2

 The agreement called for the establishment of a consistent

regionwide refugee status determination process and reaffirmed that the

first asylum countries were responsible for determining who qualified as a

refugee.

UNHCR’s role under the CPA was to help the first asylum countries develop

screening procedures that were consistent with international norms and to

monitor the implementation of the program. It was responsible for training

first asylum country officials involved in the screening process,

coordinating the timely resettlement of those determined to be refugees,

and administering a safe repatriation program for nonrefugees. In addition,

UNHCR was required to review and assess the CPA’s implementation and

consider additional measures to improve the effectiveness of the program.

UNHCR also has independent authority under its charter to formally

recognize or “mandate” cases it believes deserve refugee status and, within

the context of the CPA program, to reconsider the claims of rejected

asylum seekers. This authority provided a third layer of review in many

situations.

Since the adoption of the CPA, more than 120,000 Vietnamese asylum

seekers have been screened for refugee status. Of those asylum seekers

screened, close to 33,000 were determined to be refugees and resettled in

third countries, including some 12,900 individuals who came to the United

States.3

 The screening of cases generally concluded in the region in 1994,

and many of those who were determined not to be refugees (“screened

1

The principal countries of first asylum were Hong Kong (a British Dependent Territory), Indonesia,

Malaysia, Thailand, and the Philippines. Refugee screening actually began in Hong Kong in June 1988

prior to the CPA.

2

Refugee status determinations were to be made in accordance with the 1951 U.N. Convention relating

to the Status of Refugees and its 1967 Protocol.

3

The Department of State is responsible for overseeing U.S. interests in the CPA, and the Immigration

and Naturalization Service is responsible for adjudicating cases to determine their eligibility for

resettlement under U.S. laws and regulations. We did not evaluate how U.S. officials carried out these

responsibilities as part of our study.

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out”) returned voluntarily to Vietnam. However, in early 1995, close to

40,000 screened-out asylum seekers remained in the camps.4

From early on in the screening process, outside advocacy groups and

representatives from the U.S. Congress and other interested countries

raised concerns about the integrity and fairness of the screening process

and possible corruption that may have occurred in certain circumstances.

These concerns intensified as the screening process came to a close and

attention was focused on the screened-out asylum seekers who remained

in the first asylum country camps. Some of the issues raised by refugee

advocates included asylum seekers not knowing how to present their

cases; information being distorted because of poor translation by

interpreters; screening officials conducting incomplete interviews; reasons

for denial not being provided to asylum seekers, thereby preventing them

from preparing adequate appeals; and screening officials not having access

to accurate information about country conditions in Vietnam. Refugee

advocates also alleged that corruption in some countries resulted in

asylum seekers with strong cases being screened out for failing to pay

bribes or consenting to sexual demands by screening officials.

The pressure from outside sources led UNHCR to further review some

selected cases and investigate the allegations of corruption in the

screening process. UNHCR acknowledged that problems existed in the

screening process, particularly in the early stages of screening with the use

of unqualified interpreters, delays in the processing of refugee status

decisions, and the lack of legal assistance on appeals in some cases. It also

concluded that corruption cannot be ruled out and that, at least in

Indonesia and the Philippines, the impact of corruption was likely to have

resulted in some weaker cases being screened in by the first asylum

government officials.5

Results in Brief Family unity has been an important principle throughout the

implementation of the CPA, yet advocacy groups, asylum seekers, and

others have raised concerns that some families were unfairly separated as

a result of the refugee screening process. Beginning in late 1994, UNHCR

4

As of December 1996, all of the camps of first asylum in the region were closed, except for Hong

Kong, which had a residual camp population of approximately 9,500. According to the State

Department, Hong Kong expects the remaining camp population to be repatriated or resettled by

March 1997.

5

For a further discussion of the screening process and corruption in the CPA, see Vietnamese Asylum

Seekers: Refugee Screening Procedures Under the Comprehensive Plan of Action (GAO/NSIAD-97-12,

Oct. 21, 1996).

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undertook a regionwide review of screened-out cases to determine

whether asylum seekers would qualify for resettlement according to

established family unity criteria. UNHCR reviewed hundreds of cases, but

found most failed to meet the program criteria. However, UNHCR identified

a small number of cases in Indonesia, Malaysia, and the Philippines that

met the criteria prior to UNHCR mandating the asylum seekers as refugees.

Among these were 72 cases that were forwarded to U.S. embassies for

consideration for resettlement. While the United States initially accepted

23 of 36 cases for resettlement in Malaysia, it refused to review 36 similar

cases from Indonesia and the Philippines. The U.S. embassies in the latter

two countries refused to review any case that was not first mandated by

UNHCR; on the other hand, UNHCR would not issue a mandate without some

assurance from the resettlement countries that cases would be approved.

This impasse was never resolved and those asylum seekers identified by

UNHCR were not reunited with family members in the United States through

this process.

Victim of violence cases involved individuals who were physically

assaulted on the way to, or upon arriving in, one of the first asylum

countries. According to UNHCR officials, because of the trauma and abuse

the individuals suffered, many were unable to articulate their claim for

refugee status. To avoid subjecting vulnerable persons to the rigors of the

regular screening process, UNHCR established special procedures to

determine a durable solution in the “best interest” of these individuals.

Depending on where the best support structure existed, individuals could

be returned to Vietnam to live with family or resettled in a third country.

Our review of cases in Indonesia and Malaysia indicated that UNHCR and

these governments followed established procedures for processing victim

of violence cases. In the cases we examined, social service counselors

assessed the ability of individuals to articulate a claim for refugee status

and assigned cases to the normal screening process or the Special

Procedures Committee. We could not evaluate the quality of the

counselors’ assessments, although the assessments described in some

detail the individuals’ mental condition, situation in camp, and ability to

understand and present their claim for refugee status.

Of the 74 merit cases we reviewed, it appears that most did not present

strong refugee claims based on evidence contained in the files. However,

the quality of the written case files varied extensively both among

countries and within particular countries. Many case files were

well-documented and presented detailed facts and logical explanations for

decisions that were made, while others contained documents that pointed

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to differences and inconsistencies in the way claims may have been

handled. These involved incomplete documentation of cases, poorly

translated information, different interpretations of screening criteria, lack

of legal assistance in presenting cases, and what appeared to be an

overemphasis on nonessential points in assessing the credibility of an

asylum seeker’s claim. As a result, in some cases, we could not determine

how well the case files reflected the presentation of the asylum seekers’

claims. (See apps. I, II, and III for a detailed discussion of some of the

cases we reviewed.)

Most Family Unity

Cases Found Not to

Meet Criteria

A specific tenet of the CPA was the “need to respect the family unit.”

According to the UNHCR Handbook, if the head of a family is granted

refugee status, then his or her spouse and members of the immediate

family are also normally granted refugee status to maintain the family unit.6

Children who are minors are generally considered to be part of the

immediate family; others, such as aged parents, may be included if they

are living in the same household and dependency can be established.

Under the principle of family unity, family members do not have to

establish an independent well-founded fear of persecution; rather, refugee

status is based on their family connection to a refugee. Adult children who

are not dependent on their parents are not eligible for family unity

consideration and would undergo separate screening under the CPA.

Throughout the implementation of the CPA, UNHCR received numerous

requests to consider cases under the principle of family unity. These

involved individuals who claimed to have been separated from family

members by the refugee screening process. Several included marriages

that were not known or accepted as legitimate marriages by the first

asylum countries or UNHCR; others involved children, siblings, or other

relatives who claimed to have family linkages to individuals who had

already resettled in a third country. Recognizing that some families may

have been inadvertently split by the screening process, UNHCR undertook a

broad regionwide review of screened-out cases in late 1994. By using its

mandate authority, UNHCR could provide a means for screened-out family

members to join immediate family members currently resettled elsewhere.

6

The CPA guidelines recognized marriage as a fundamental human right. In addition to legally

formalized marriages, the family unity criteria was also extended to couples who entered into common

law marriages prior to leaving Vietnam. The criteria also addressed different marriage arrangements

and/or relationships that occurred in the first asylum camps. Distinctions were made, however,

between legitimate relationships and those that might have been formed by some asylum seekers to

gain resettlement.

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Criteria for Adjudicating

Cases

UNHCR used the following criteria to review cases that might not have been

assessed fairly on the basis of family unity during the regular refugee

status determination process:

• Minors and dependant children were to be reunited with parents. Minors

were defined as being younger than 18 at the time of the UNHCR review and

dependency was based on the “totality of needs and relations.” Nonminor

children and siblings who were not dependents were not considered for

family reunification.

• Marriages predating the determination of refugee status were recognized

regardless of whether couples had any children.

• Marriages postdating the refugee status decision would generally not be

accepted unless they were proven to be “bona fide” and there was

evidence of a “long-standing, pre-existing” relationship (the existence of

children was proof). Obstacles to marriage were to be considered, such as

difficulties in obtaining divorce papers from Vietnam, the asylum country

not allowing formal marriages to take place (as was the case in Indonesia,

for example), or a couple being underage.

A key objective of the family unity initiative was to recognize legitimate

marriages and relationships. UNHCR rejected marriages of convenience and

other relationships that did not involve immediate family members or

dependents. Many of the cases were relatively straightforward; however,

several involved complicated family relationships that were difficult to

resolve. Relationships that were not split as a result of the status

determination process were also excluded from consideration, such as

those involving family members who were resettled from a first asylum

country prior to the CPA or from Vietnam directly through the Orderly

Departure Program (ODP).7 UNHCR encouraged family relatives who did not

qualify for reunification to return to Vietnam and use alternative migration

opportunities, such as ODP.

8

UNHCR’s family unity review began in Malaysia and was adopted shortly

afterwards by other UNHCR field offices in the region. According to UNHCR

7

ODP was established in 1979 under an agreement between UNHCR and the Vietnamese government to

provide a safe and legal means for immigrants and refugees to leave Vietnam for family reunion and

humanitarian reasons.

8

UNHCR officials in Malaysia did consider and support a small number of ODP-related cases that fell

outside of the agreed-upon family unity criteria. These involved individuals whose entire family

subsequently left Vietnam through migration programs such as ODP. Even though the family was not

split as a consequence of the CPA screening process, UNHCR recognized a need to reunite such

individuals and avoid returning them to Vietnam in a “vacuum.” Approximately a dozen of these

ODP-related cases from Malaysia were resettled in the United States; however, UNHCR generally did

not support similar cases from the other first asylum countries.

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officials, the resettlement countries and other CPA member countries

initially criticized the initiative. The first asylum countries believed that

family unity considerations had already been addressed during the regular

refugee status determination process and that further review of cases

would jeopardize an orderly conclusion to the CPA program. Resettlement

countries believed that family unity considerations were more properly

effected through their own established migration programs, such as ODP.

In Malaysia, Indonesia, and the Philippines, UNHCR reviewed hundreds of

cases under its family reunification initiative. Most were rejected for

failing to meet UNHCR’s established criteria, but UNHCR believed a small

number had valid claims and forwarded them to various resettlement

countries for consideration. UNHCR initially forwarded cases without a

declaration of mandate because it wanted some assurance that cases

would be accepted for resettlement. UNHCR wanted to avoid having

screened-in individuals who might have no resettlement option and,

because of their mandate status, no means to be repatriated either. This

was a concern because individual resettlement countries’ criteria for

family reunification could differ from UNHCR’s criteria.

In Malaysia, there was strong support from the Malaysian government and

the U.S. embassy to resolve family unity cases. UNHCR officials identified

and forwarded 36 cases in early 1995 to the U.S. embassy for

consideration.9

 The U.S. embassy in Kuala Lumpur agreed to review the

cases informally and provide UNHCR with an indication of whether the

cases might qualify for resettlement.10 As a result of this, the United States

accepted 23 cases involving 35 persons. The cases were subsequently

mandated by UNHCR and resettled in the United States.

In Indonesia and the Philippines, UNHCR also identified several cases that

met its family unity criteria and submitted these cases to the resettlement

countries for informal review. With respect to U.S.-related cases, UNHCR

forwarded 13 cases from Indonesia and 23 cases from the Philippines to

the respective U.S. embassies in late 1995. In contrast to the situation in

Malaysia, however, there was no progress in resolving these cases for

resettlement because the U.S. embassies took no action on the cases.

9

In addition to the cases that were sent to the United States, UNHCR identified 24 other cases that

fulfilled the criteria and were sent to different resettlement countries, such as Canada and Australia,

for review.

10While cases may have met the UNHCR family unity criteria, they also had to meet the regular

immigration standards and criteria of the resettlement countries to be approved for resettlement.

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U.S. embassy officials did not informally review cases and took the

position that there could be no review or implied guarantee of

resettlement without a UNHCR mandate.11 However, UNHCR officials did not

want to issue a mandate without a clear indication that the cases would be

accepted for resettlement.

The impasse over the family unity cases in Indonesia and the Philippines

continued from late 1995 through April 1996, when the U.S. Department of

State issued written guidance to the embassies. The guidelines indicated

that cases should not be reviewed unless they were mandated by UNHCR.

Even then, there would be no guarantee of resettlement until U.S.

Immigration and Naturalization Service officials conducted an interview

and then determined a case met U.S. immigration criteria.

U.S. family unity criteria in some respects are more stringent than UNHCR

criteria. According to Department of State guidelines, for example,

spouses would only be considered eligible if “the marriage was legally

established before release of the refugee screening result, the marriage is

legally recognized in the country in which it took place, and there is clear

evidence that the marriage is genuine.” These criteria effectively excluded

marriages that occurred after a refugee status determination, even if there

was evidence of a long-standing, preexisting relationship or common law

marriage that occurred in countries such as Indonesia that did not

recognize a marriage between asylum seekers.

In Malaysia, cases similar to those that were submitted and approved by

the U.S. embassy in early 1995 were rejected under the April 1996

guidelines. UNHCR officials in Indonesia and the Philippines effectively

stopped submitting cases for consideration to the U.S. embassies due to

the lack of response from the United States to review cases informally

prior to a declaration of mandate status. As efforts to close the camps

increased after the March 1996 announcement by the CPA countries, UNHCR

encouraged all individuals, including those considered for family

reunification, to voluntarily return to Vietnam.

11The cases from Indonesia were actually handled out of the U.S. embassy in Kuala Lumpur. The

principal embassy official who had worked with UNHCR officials to resolve many of the Malaysian

cases had been reassigned when the Indonesian cases were submitted in late 1995. The subsequent

involvement of different embassy officials may have hampered progress in addressing the cases.

Another issue that further complicated the resolution of cases was the Indonesian government’s

refusal to recognize UNHCR’s use of its mandate authority to confer refugee status to asylum seekers.

In the Philippines, a change in staffing at the U.S. embassy contributed to the lack of response to the

cases submitted by UNHCR. In addition, embassy officials could not review cases until they obtained

formal guidance from State Department headquarters.

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According to Department of State officials, the April 1996 guidelines did

not change U.S. policy but clarified the U.S. position on UNHCR mandates

and the application of U.S. family unity criteria. The officials noted that

this guidance had not previously been communicated formally to the

embassies and that the embassies’ refugee officers had some discretion to

work independently on CPA family unity issues.

Review of Individual

Family Cases Generally

Followed Procedures

We reviewed 86 family unity cases in Indonesia, Malaysia, and the

Philippines. UNHCR had generally assessed the cases in accordance with its

established criteria and procedures, although there appeared to be

discrepancies in the way some cases were resolved. UNHCR relied heavily

on the biographical information collected from asylum seekers prior to the

screening interviews. This information provided the names, relationships,

dates of birth, and places of residence of the family members of each

asylum seeker. Asylum seekers were also encouraged to inform UNHCR of

any changes or updates to this information over time. In assessing requests

for family reunification, UNHCR often interviewed asylum seekers and

contacted the resettlement countries to obtain supporting information.

While this information was for the most part comprehensive, we found

that in some cases it was incomplete or was not updated when a marriage

or birth of a child occurred.

Almost all of the asylum seekers whose cases we reviewed had ties to

relatives in the United States, but most did not meet UNHCR criteria. The

main reasons included (1) post-refugee status determination marriages

lacked evidence of a long-standing relationship or of any obstacles that

prevented a marriage from occurring prior to the refugee screening,

(2) children who were nonminors sought reunification with parents or

siblings, and (3) family members were linked to ODP cases that were not

split as a result of the refugee status determination process.

While most post-refugee status determination relationships were rejected,

UNHCR did deviate from its fairly consistent application of the criteria to

support a few cases. In one case in Indonesia, UNHCR approved a family

unity claim after examining numerous correspondence between the

asylum seekers and their respective families, which indicated that the

marriage was recognized by the families in Vietnam through a formal

ceremony prior to the refugee status determination. In another case in the

Philippines, UNHCR supported a couple seeking family reunification

because written affidavits from third parties attested to the long-term

relationship of the couple as well as long explanations by both spouses

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about their delay in getting married. As a rule, UNHCR rejected petitions to

reunite either adult children with their resettled parents or individuals

with family members who resettled through ODP, but it made some

exceptions for compelling humanitarian reasons. One case in Indonesia,

for example, involved an adult daughter seeking reunification with parents

who were critically ill. UNHCR approved the case based on humanitarian

concerns.

UNHCR rejected reunification claims involving family members who left

Vietnam under ODP because such cases, according to UNHCR, were not split

as a result of the CPA refugee screening process. However, UNHCR in

Malaysia did support several ODP-linked cases in which no more family

members were in Vietnam. Similar cases in Indonesia and the Philippines,

though, were generally not recognized by UNHCR. A case in the Philippines,

for example, involved a 16-year-old unaccompanied minor who was

assessed under UNHCR’s special procedures process. UNHCR determined that

the best support structure for the child existed in Vietnam where the

mother resided. Subsequently, however, the mother, who was the only

immediate family to the applicant, migrated to the United States under

ODP. When the case was reviewed again under UNHCR’s family unity

exercise, the situation with the applicant’s mother was not an overriding

factor and the applicant was considered to have “aged-out” as a minor and

was rejected as an adult.

In situations involving siblings, a few cases were screened differently. In

one case in Indonesia, four siblings (including a minor) arrived together at

the first asylum camp. Each sibling was screened separately and all except

one was recognized as a refugee. Upon appeal, the review committee used

the principle of family unity to reverse the first instance decision and grant

refugee status to the remaining sibling. In another case involving a minor

and two siblings, each was screened separately. While the minor was

granted refugee status under the special procedures process, the two adult

siblings who accompanied him were rejected.

In a few cases, we had information (provided by your office) supporting a

claim for family unity that UNHCR did not have in its files. In the

Philippines, for example, UNHCR rejected a post-refugee status

determination marriage where no evidence of a genuine relationship was

presented. After we presented a copy of a birth certificate of a child born

to the couple, UNHCR officials indicated that based upon this new

information, the case probably would have been forwarded to the U.S.

embassy for consideration as part of the family unity exercise. The case,

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however, would probably not have been resettled since the U.S. embassy

did not respond to the other cases forwarded for review by UNHCR.

In several other cases, UNHCR had information that was not in the case file

information we had received through your office. We reviewed several

cases where one of the parties to a family unity claim had a preexisting

marriage or had established his or her refugee status through a marriage to

a different spouse. Some of the cases were extremely difficult to sort out

due to the multiple relationships that were involved, linking partners in

Vietnam, the first asylum camp, and the United States. It was not unusual

to have a situation, for example, of a couple forming a relationship in a

first asylum camp while each still had a prior spouse in Vietnam.

Subsequently, one partner would be screened in to resettle with his or her

spouse who immigrated to the United States through ODP. The partner then

divorced the first spouse and sought reunification with the other partner

still in the first asylum camp.

Procedures Were

Followed in Victim of

Violence Cases

Victims of violence is a broad term used to describe cases of individuals

who asserted they had experienced traumatic or violent incidents en route

to or in first asylum countries. Though the full scope is unknown, many

Vietnamese boat people came under attack from pirates who were in most

cases opportunistic fishermen who viewed the fleeing Vietnamese with

their life possessions as easy targets of opportunity. Many individuals

reportedly perished during these attacks. Women and young girls were

especially vulnerable to sexual assault and rape. Other reported incidents

of violence occurred at islands in the South China Sea, such as Terempa

and Kuku. Some asylum seekers who landed on the islands in search of

temporary refuge experienced rape, robbery, and beatings at the hands of

soldiers and gangs of fishermen who sometimes congregated there. In

other cases, boats were reportedly towed to the islands for the express

purpose of victimizing the asylum seekers. Some asylum seekers endured

multiple attacks and rapes during their escape attempt.

Criteria for Adjudicating

Victims of Violence Cases

UNHCR first developed guidelines for handling survivors of violence cases

as an internal memorandum in June 1990 and formalized them in its

November 1992 “Guidelines on Special Procedures under the

Comprehensive Plan of Action.” These two documents outlined the

criteria and rationale for including victim of violence cases in a process

known as “Special Procedures.” Special Procedures was designed as a

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separate process to deal with unaccompanied minors and other vulnerable

persons such as victims of violence.

The standard for determining whether asylum seekers who had

experienced violence should have been handled under Special Procedures

was “the effect [of violence] on their ability to understand persecution or

articulate a well-founded fear of persecution more than the disability per

se . . . .” It was recognized that individuals who were victims of violence

may have been severely traumatized and unable to comprehend the

screening process or articulate their claim to refugee status. In such cases,

it would have been inappropriate, if not impractical, to subject individuals

to the rigors of the screening process.

An important principle underlying the establishment and implementation

of Special Procedures is the assessment of “best interest” of persons who

are vulnerable and of humanitarian concern. The best interest

determination was to be made on the basis of information derived from

circumstances or conditions generally beyond what would necessarily be

considered in determining refugee status. In determining a durable

solution in the best interest of a vulnerable person, all circumstances,

including events occurring en route to or in a first asylum country,

particularly piracy attacks, were to be considered relevant and taken into

consideration.

Process Used for

Reviewing Cases

When asylum seekers arrived at a first asylum camp and identified

themselves as victims of violence, or in cases where UNHCR initiated the

identification of the victim, a UNHCR social service counselor would first

examine the individuals to determine whether they could articulate their

claim to refugee status. If they could, they would go through the usual

refugee status determination procedure. If they could not, due to the

traumatizing nature of the experience, the Special Procedures process

would be used. Under Special Procedures, the question of a person’s

possible refugee status was dealt with first. According to UNHCR, refugee

status under Special Procedures was evaluated in a supportive

environment that specifically considered a person’s difficulty in

articulating his or her case. A person determined to be a refugee would be

resettled. If a person was determined not to be a refugee, the best interest

test was applied.

The Special Procedures process was implemented by a Special Procedures

Committee whose membership varied from country to country, but usually

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involved individuals from UNHCR’s implementing partners who possessed

either a social service or status determination background. In Malaysia, for

example, the Special Procedures Committee was variously composed of

officials from the Red Cross and Red Crescent Societies, social counselors

on loan from the Jesuit Refugee Service, UNHCR, and a private practice

Malaysian psychiatrist. The role of the Special Procedures Committee was

to determine where the best support structure resided to help individuals

recover from their traumatic experience. In some instances, resettlement

with family members in third countries was the best solution. However,

according to UNHCR officials, the generally preferred solution, in keeping

with social welfare principles, was to reunite the individual with family

members in Vietnam.

If asylum seekers did not disclose the violent experience either when they

arrived at the refugee camp or during the refugee status determination

process, UNHCR assessed each situation on a case-by-case basis. UNHCR

officials told us it was not uncommon for individuals to initially keep their

experience of violence secret due to shame or fear of retribution from

country-of-asylum officials. They said many individuals began coming

forward with claims of violence after receiving negative screening

decisions and learning that other individuals with similar experiences

were being resettled after proceeding through the Special Procedures

process. Others, though, may have come forward because they

experienced difficulties in coping with the effects of the earlier incident of

violence. When evaluating these types of cases, UNHCR’s social service

counselors were expected to look for symptoms of trauma, such as visits

to the camp hospital or counselors or an inability to forge relationships

with other camp residents. If trauma was evident, counselors would refer

the case to the Special Procedures Committee for a best interest solution.

Victim of Violence Cases in

Malaysia and Indonesia

We examined the case files of 5 Malaysian and 77 Indonesian victims of

violence. The majority of the Indonesian cases were at Kuku Island, the

northern island army camp. Because we did not interview the asylum

seekers, social service counselors, or members of the Special Procedures

Committees, who had disbanded at the conclusion of the screening

process, our review was limited to determining whether the

documentation in UNHCR files indicated that the procedures had been

followed, not the quality of the assessments per se.

UNHCR documents indicated UNHCR’s social service counselors interviewed

and assessed the victim of violence cases and then assigned the case to

Page 13 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

proceed either through normal refugee status determination processing or

to the Special Procedures Committee process. The assessments discussed

the individual’s current mental state, situation in camp, and ability to

understand and articulate a claim of a well-founded fear of persecution.

Of the five Malaysia cases we reviewed, four were referred to the Special

Procedures Committee for a best interest decision and the fifth was

referred to the regular refugee status determination process. It was

decided in two of the cases that the best support structure for the

individuals lay with family members who resided in Vietnam. In the other

two cases, the best support structure was determined to be with family

members who lived in the United States and Australia, respectively. In

Indonesia, the 77 cases we reviewed were processed through the normal

refugee status determination process at the recommendation of the social

service counselor. Although we did not track the final disposition for all

cases, several were granted refugee status and were subsequently resettled

in third countries.

We noted a few cases in Indonesia where the social service counselor

described emotional difficulties by the asylum seeker but nonetheless

recommended that the normal refugee status determination process be

followed. For example, in one case, the social service counselor wrote that

“. . . [the individual] appears very depressed and complains having suffered

from a variety of psychosomatic illnesses . . . . [The individual]

experienced a horrific experience during her journey to Galang. However,

there is evidence that she is on her way [to] a full recovery. It’s

recommended that she should go through the normal refugee status

determination process.” Although this kind of recommendation appeared

consistent with the standard for determining whether someone should go

through Special Procedures, we still had some difficulty understanding it

in view of the counselor’s observations about the emotional condition of

the individual involved.

The following is an example of the steps the Special Committee in

Malaysia took to reach a solution in the best interest of a victim of

violence:

“A husband and wife reported they were victims of violence as they traveled from Vietnam

to asylum in Malaysia. The husband died in camp (due to causes unrelated to the violence

incident). The woman was assessed by the social service counselor to be unable to

understand or articulate a claim and her case was assigned to the Special Committee for a

durable solution. The Special Committee decided that the woman’s best support structure

Page 14 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

lay with her husband’s family in Vietnam. However, after reaching this decision and before

the woman returned to Vietnam the family had resettled in the United States under ODP.

The Special Committee then decided that the woman’s ’best interest’ still lay with the

husband’s family in the United States. Thereafter, the women was eventually accepted for

resettlement in the United States and reunified with her husband’s family.”

A majority of the victim of violence cases we examined from Indonesia

occurred at Kuku Island. Information in the case files we reviewed

indicated that a number of women and girls were sexually assaulted and

raped by government soldiers. Men who attempted to intervene to protect

their wives, children, or siblings were beaten. Some of the individuals who

experienced violence at Kuku Island were processed through Special

Procedures, where it was determined that resettlement in third countries

was in their best interest. The majority, including the cases we reviewed,

were assessed through the normal refugee status determination process.

Some Vietnamese advocacy groups and others have criticized UNHCR’s

handling of the Kuku Island cases. They have argued that (1) an agreement

existed between the Indonesian government and UNHCR to resettle all the

victim of violence cases and (2) all similarly situated cases should be

treated alike. According to UNHCR officials we interviewed, there was no

agreement with Indonesia to resettle all victim of violence cases. UNHCR

initially resettled a number of these cases because of humanitarian

concerns that may have left an impression of precedent for other cases.

We found UNHCR handled these cases consistent with the “Guidelines on

Special Procedures Under the Comprehensive Plan of Action.”

Possible

Inconsistencies in

Review of Some

General Refugee

Status Determination

(Merit) Cases

To qualify for refugee status, asylum seekers had to demonstrate a

well-founded fear of persecution. We reviewed 74 refugee status

determination cases and discussed them with UNHCR officials and others

involved in the CPA program. Procedures in each of the countries we

visited were designed to help ensure that those with strong refugee claims

would be recognized as refugees. Most of the screened-out cases we

reviewed did not appear to have strong claims based on the case file

evidence we examined. However, in some cases we identified issues that

pointed to possible differences and inconsistencies in the way screening

procedures may have been implemented. The limitations on our access to

documents and our inability to interview asylum seekers preclude us from

concluding with certainty whether these issues may have contributed to

unfavorable screening decision outcomes in these cases. (See apps. I

Page 15 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

through III for our review of merit cases in the Philippines, Indonesia, and

Hong Kong, respectively.)

In reading the UNHCR case files, we noted considerable variation in the

quality of the information presented regarding refugee claims and

screening officials decisions. Although many of the case files were

well-documented and contained detailed case histories with clear and

logical explanations for the refugee status decisions, others were less

complete and decisions did not appear to be well-supported by the

recorded facts. Some case files had inconsistent or contradictory remarks

by the screening interviewers. Such inconsistencies in the case file

documentation often prevented us from concluding whether a

screened-out decision was the result of poor record-keeping or it properly

reflected the facts of the case. Case file documentation was particularly

important because adjudicators at the appeals and mandate review stages

relied on the case file record for their deliberations. According to Hong

Kong officials, 25 percent of the appeals cases were reinterviewed, but we

were told that few, if any, reinterviews occurred during appeals in

Indonesia and the Philippines.

A few of the most difficult case files to assess involved screening decisions

that focused on the credibility of the applicant’s claim for refugee status.

In these cases, screening officials seemed to place great emphasis on

inconsistencies that appeared in the applicant’s claim and/or appeal. Their

attention seemed to focus on relatively small details regarding a claim,

such as the dates of noncrucial events and statements of when and where

something may have happened many years ago, rather than on the major

factors addressing the claim of persecution. In other cases where

credibility issues were the principal reason to screen out an asylum

seeker, the screening official presented convincing evidence that

challenged key aspects of a case. For example, in one case in the

Philippines, the asylum seeker claimed to have served several years in a

Vietnamese prison under harsh conditions and away from his family.

However, information in the case also indicated that the individual had

fathered two children with his wife during the same period and the prison

release documents appeared to have been tampered with.

Other issues that surfaced during our review dealt with potential

difficulties asylum seekers may have had in presenting their cases. A few

of the appeal petitions submitted by asylum seekers in the Philippines and

Hong Kong, for example, raised concerns about the relatively small

amount of time spent by screening officials in conducting the first instance

Page 16 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

interviews. Communication difficulties may have occurred. Several appeal

petitions in the Philippines and legal briefs presented by attorneys in Hong

Kong criticized the quality of the translations conducted by interpreters. In

a few cases in Hong Kong, interpreters may not have been able to translate

the Nung ethnic dialect spoken by the asylum seeker. A further issue that

was reported to us was a practice used in the early stages of screening in

the Philippines where asylum seekers were asked to sign a blank record of

their interview before it was written up. As a result of this practice, asylum

seekers had no assurance that the information they had presented in the

interview was accurately recorded. According to UNHCR officials, this

practice occurred in some cases during the first year or so of screening;

however, it was subsequently changed and asylum seekers signed only

completed write-ups.

Refugee status determinations inherently involve judgment on the part of

the screening official. As a result, some differences in screening decisions

are to be expected. Some cases we reviewed appeared to have similar

facts and elements of a claim but were assessed differently by screening

officials. In the Philippines, screening rates among first instance screening

officials varied widely, according to UNHCR data.12 The overall screened-in

rate at the first instance stage was 43 percent—the highest screened-in

rate among all the first asylum countries. However, some officials were

very lenient and consistently screened in a very high percentage of cases

(75 percent and higher), and others were quite stringent and screened in

far fewer cases (25 percent or less). UNHCR officials said that a number of

weak cases probably were screened in, but they maintained that the

appeals process and UNHCR’s own mandate authority helped ensure that

individuals with strong refugee claims would be recognized and accepted

for resettlement.

Agency Comments In providing oral comments on a draft of this report, UNHCR and

Department of State officials generally concurred with the report’s

content. They provided technical and clarifying comments that we have

incorporated in the report where appropriate.

Scope and

Methodology

As agreed with your office, the focus of our work was on selected family

unity, victim of violence, and general refugee merit cases of individuals

who were screened out under the CPA program. Our approach was to

12UNHCR Report on Alleged Corruption in the Refugee Status Determination in the Philippines

(Oct. 1995).

Page 17 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

conduct case file reviews to assess the strength or weakness of the claims

that were made and determine how the screening process worked in these

cases. We concentrated on cases from Indonesia, Hong Kong, Malaysia,

and the Philippines, and selected them from among the approximately

500 cases provided through your office.13

Our review was mainly limited to an examination of UNHCR case files in the

first asylum countries. The government in each country we visited denied

our requests to visit the camps and interview asylum seekers and would

not grant us access to their own case files. Officials from these countries

expressed concerns that our presence in the camps might raise false

expectations among the asylum seekers that the U.S. government was

pursuing a rescreening of cases. We did not have the authority to require

other governments to provide us access for interviews or review case files

under their jurisdiction, and we had to rely on the willingness of host

governments to grant us access. The lack of access to host government

case files was a significant limitation on our work because the government

of the first asylum countries were responsible under the CPA for the

refugee status determination process that involved both the initial

interview and the appeals process. Information contained in these files

was often not available in the UNHCR files we were permitted to examine.

However, to supplement our review of cases, we did meet and discuss the

CPA screening process with officials from UNHCR, the first asylum

governments, and the U.S. embassies. In addition, we interviewed

representatives from nongovernmental organizations such as legal

assistance groups who were involved with the CPA.

14

To learn more about the CPA screening criteria and procedures, we

reviewed available UNHCR documents, met with UNHCR officials in Geneva,

and participated in a 2-day briefing with the UNHCR regional coordinator of

the CPA program and other staff in Malaysia. The amount and focus of our

fieldwork differed in each country, given the number and type of cases we

had to work with and the existing time frame established to conclude the

CPA program in each country. We reviewed 242 cases in the 4 countries we

visited during a 3-week period from late June to early July 1996. (See

table 1.) The cases covered individuals who were still in the camps at the

13We did not include Thailand in our review due to limited time and resources.

14Although we were not able to visit the camps and interview asylum seekers, we did interview seven

asylum seekers through a Vietnamese Catholic priest working in Manila. Because the Philippines’

camp at Palawan operated as a relatively open facility, several hundred asylum seekers have left over

the years and assimilated into Philippine society. In Hong Kong, we also met with a few individuals

who had been declared refugees but had not been resettled and were staying in an open camp. These

individuals provided us with additional perspectives on the screening process.

Page 18 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

time of our visits as well as those who had already returned to Vietnam.

We prioritized the workload by first reviewing family unity and victim of

violence cases and then the general merit-type cases. We assessed cases

from the perspective of the CPA criteria, reviewed factual information in

the case files, and sought to examine how the screening process was

implemented. We read each case file, took appropriate notes on

information in the files, and discussed cases with available UNHCR staff and

among ourselves.

Table 1: Cases Reviewed by Type in

Each Country Family

unity

Victim of

violence Merit Total

Hong Kong 0 0 18 18

Indonesia 33 77 11 121

Malaysia 31 5 1 37

Philippines 22 0 44 66

Total 86 82 74 242

The type and quality of information included in the UNHCR case files varied

both across and within the countries we visited. In Hong Kong, for

example, we only had access to that portion of the case files belonging to

UNHCR. We were permitted to read UNHCR mandate review documents that

pertained to a case but generally not other documents produced by and

belonging to the Hong Kong government, such as the first instance and

review board interviews and decisions. While the mandate review

documents usually included summaries of what occurred at earlier stages

of the screening process, they lacked many important details about how

asylum seekers presented their cases or the assessments by Hong Kong

officials. However, in Hong Kong, because of the extensive legal assistance

available to asylum seekers, we were also able to collect from these

sources quite detailed information about some individual cases. In

Malaysia and the Philippines, we had access to all the documents

contained within the UNHCR files, regardless of whether they were

produced by UNHCR or the first asylum government. However, these files

usually did not include appeal decision assessments. Also in Indonesia, the

case files did not include documents generated by the Indonesian

screening officials and belonging to the Indonesian government. Indonesia

did not permit nongovernmental organizations to participate in applicant

counseling, as the Hong Kong government did; consequently, this source

of information was not available in Indonesia.

Page 19 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

The written material in UNHCR case files also limited the conclusions we

could draw about individual cases. While many of the case files were quite

detailed, some had insufficient information to allow us to determine the

appropriateness of an applicant’s claim for refugee status or to understand

what rationale or reasons an interviewer used in making a decision. This

does not mean that the process was deficient in these cases or that an

inappropriate decision was reached; it only means that the files we were

permitted to examine may have been incomplete. Nonetheless, as a result,

it was difficult to differentiate whether the strength or weakness of a

particular case reflected the write-up of the case or the actual facts and

presentation of the case during the refugee status determination.

Due to the variance in the number and type of cases presented for our

review in the countries we visited, our detailed discussion of cases in

appendixes I, II, and III vary as to form and content. For example, due to

our familiarity with the screening process in Hong Kong (based upon our

prior work), the relatively smaller number of cases to review, and the

larger volume of case file data, we are able to present a fuller discussion of

the asylum seekers’ claim and the basis for their decisions. Since we did

not visit the Philippines during our previous work on the CPA, our

discussion focuses on both the screening process and case examinations.

Indonesia had the largest number of cases we reviewed, the majority of

which were victim of violence and family unity cases. We focused

primarily on whether these cases appeared to be adjudicated properly

based upon family unity and Special Procedures criteria. Subsequently, we

also reviewed the cases based upon general refugee merit criteria, which is

the basis of our case presentations.

In a letter dated December 10, 1996, you raised some concern about the

findings of this report and the reasonableness of its conclusions. We have

attempted to clarify the information in this report where appropriate, and

to further describe the scope limitations placed on our work. Because our

office could not make independent findings of fact, we could not draw

conclusions about individual cases. In addition, because we reviewed only

a limited number of cases, our findings cannot be generalized to other

cases or be used to judge the overall reasonableness of the CPA screening

process.

We conducted our review from April to September 1996 in accordance

with generally accepted government auditing standards.

Page 20 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
B-275467 

We are sending copies of this report to the Chairmen and Ranking

Minority Members of the House and Senate Committees on

Appropriations, the House Committee on Government Reform and

Oversight, the Senate Committee on Governmental Affairs, and other

interested committees; the Secretary of State; the Attorney General; the

U.N. High Commissioner for Refugees; Congressmen Tom Davis and

Benjamin A. Gilman, and Congresswoman Zoe Lofgren of the House of

Representatives because of their expressed interest; and others upon

request. If you or your staff have any further questions concerning this

report, please contact me at (202) 512-4128. Major contributors to this

report were Patrick Dickriede, Le Xuan Hy, John Oppenheim, Audrey

Solis, and Thai Tuyet Quan.

Sincerely yours,

Harold J. Johnson, Associate Director

International Relations and Trade Issues

Page 21 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Contents

Letter 1

Appendix I 

Refugee Status

Determination in the

Philippines

24

Screening Process 24

Concerns With the Process 25

Review of Merit Cases Highlights Difficulties in Interpreting

Refugee Criteria

28

Limited GAO Blind Study Indicates Some Screening Variations 30

Appendix II 

Refugee Status

Determination in

Indonesia

32

Case 1 32

Cases 2 and 3 33

Case 4 33

Cases 5 and 6 34

Appendix III 

Refugee Status

Determination in

Hong Kong

35

Case 1 35

Case 2 36

Case 3 37

Case 4 38

Case 5 39

Case 6 39

Case 7 40

Case 8 40

Case 9 41

Case 10 42

Case 11 43

Case 12 44

Tables Table 1: Cases Reviewed by Type in Each Country 19

Table I.1. Results of First Instance Screenings by Philippine

Government Immigration Officials

26

Abbreviations

AET Anciens Enfants de Troupe

ARVN Army of South Vietnam

CPA Comprehensive Plan of Action

LAVAS Legal Assistance for Vietnamese Asylum Seekers

NEZ New Economic Zones

ODP Orderly Departure Program

UNHCR United Nations High Commissioner for Refugees

Page 22 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Page 23 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

Of the 66 cases we reviewed in the Philippines, 44 were merit cases.

Among these were 11 cases of individuals who had been screened in as

refugees. This provided us a limited opportunity to compare the relative

strengths of screened-in and screened-out cases. Because these cases

represent only a fraction of the thousands of adjudicated cases, we cannot

draw any conclusions based on our review. Rather, our review

demonstrates how judgments varied during the screening process. Before

presenting our review of cases, we describe how the refugee status

determination process was structured and note some general issues about

its implementation.

Screening Process Beginning in March 1989, all asylum seekers arriving in the Philippines by

boat were required to undergo screening in the Palawan refugee camp

operated by the Philippine army and supported by the U.N. High

Commissioner for Refugees (UNHCR). The Philippine government’s Task

Force on International Refugee Assistance and Administration was

charged with coordinating refugee activities with UNHCR and other

international organizations.1

 The initial refugee status determination

screening at Palawan was conducted by nongovernmental legal

consultants contracted by UNHCR. Using standard interview forms

approved by the Task Force, the predetermination interviewer was to

collect relevant information and any documents that were in the asylum

seeker’s possession. The asylum seeker was to sign the finished interview

forms and questionnaires. UNHCR then presented these forms and any

documents provided by the asylum seeker to the Philippine government’s

Commission on Immigration and Deportation for refugee status

determination.

A Philippine immigration official was to use the predetermination

information to decide refugee status. The immigration official was to

conduct his or her own interview to fully assess and evaluate the asylum

seeker’s claim for refugee status, in accordance with UNHCR criteria. UNHCR

provided an interpreter to translate for the asylum seeker. A UNHCR

representative was to be present during the interview, although he or she

did not participate in the proceedings. However, the immigration official

and the UNHCR representative could confer with each other after the

interview.

1

The influx of Vietnamese asylum seekers in the 1970s prompted President Marcos, in cooperation

with UNHCR, to provide temporary lodging for refugees prior to their final resettlement in other

countries. Through executive orders, he created the Task Force in August 1979, and President Aquino

introduced changes to its structure and functions in August 1988.

Page 24 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

Decisions were made in Manila, not in Palawan, and were to be based on

CPA criteria for refugee status. When a member of a family was recognized

as a refugee, immediate members of the family—spouses, minor children,

and other dependents—were also to be recognized as refugees. Decisions

were to be provided in writing no later than 2 months from the time the

status determination interview was conducted. If refugee status was

denied, the basis for the denial was to be documented in writing. A UNHCR

representative was to present the decision to the asylum seeker for his or

her signature and date. All decisions and pertinent records were

forwarded to the Task Force.

Asylum seekers could appeal a denial for refugee status by filing a notice

of appeal with the Appeals Board, through the Task Force, within 15 days

after receiving the decision. The appeal could also include a request to

submit an extended written statement and supporting documents within

an additional 15 days from the filing of the notice of appeal. If an asylum

seeker did not file an appeal within 15 days of receiving the first instance

decision, he or she was deemed to have chosen voluntary repatriation. The

three-member Appeals Board was to resolve the appeal within 2 months

after receiving the appeal or, when appropriate, the extended written

statement. Appeals Board decisions were final. Beyond the appeal stage,

UNHCR could exercise its mandate authority for granting refugee status to

cases not screened in during the first instance or appeal phases.

The Philippine government screened a total of 4,810 cases, which equated

to 7,272 individual asylum seekers. Of this number, 2,087 cases (3,392

persons) were screened in as refugees at the first instance stage; and 2,723

cases (3,880 persons) were denied refugee status or “screened out,” for a

screened-in case rate of 43.4 percent. An additional 351 cases (471

persons) were screened in when the Appeals Board overturned negative

decisions. UNHCR exercised its mandate authority for an additional

13 cases, or 19 people, for an overall screened-in case rate of 50.9 percent.

The Philippines’ overall and first instance screened-in rates were the

highest of all countries of first asylum.

Concerns With the

Process

The two-tiered screening process by the Philippine government and

UNHCR’s mandate authority was intended to ensure that those with strong

refugee claims would be screened in and recommended for third country

resettlement. However, despite the relative generosity reflected in the

screened-in rates, we noted in our reading of case files that some first

instance decisions by immigration officials contained inconsistent or

Page 25 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

contradictory remarks, widely varying interpretations of country of origin

information, or incomplete information. UNHCR reported that the criteria

for determining refugee status was often inconsistently applied at the first

screening decision level,2

 and some Philippine government and

nongovernmental officials also voiced these concerns. UNHCR statistics also

revealed some wide variances of screened-in rates among immigration

officers. (See table I.1.)

Table I.1. Results of First Instance

Screenings by Philippine Government

Immigration Officials Interviewera

Number

positive

Percent

positive

Number

negative

Percent

negative

A 26 50.00 26 50.00

B 61 54.95 50 45.05

C 38 29.69 90 70.31

D 67 39.18 104 60.82

E 135 51.92 125 48.08

F 29 37.18 49 62.82

G 134 43.23 176 56.77

H 60 34.09 116 65.91

I 30 22.22 105 77.78

J 103 100.00 0 0.00

K 62 26.16 175 73.84

L 59 51.30 56 48.70

MN 25 39.06 39 60.94

O 121 58.45 86 41.55

P 133 84.71 24 15.29

Q 21 26.92 57 73.08

R 74 45.68 88 54.32

S 59 53.64 51 46.36

T 125 51.23 119 48.77

U 214 68.15 100 31.85

V 141 55.95 111 44.05

W 91 71.09 37 28.91

X 63 53.39 55 46.61

Y 43 31.62 93 68.38

Z 20 17.09 97 82.91

AA 129 50.59 126 49.41

BB 241 75.31 79 24.69

CC 67 44.08 85 55.92

(continued)

2

UNHCR Report on Alleged Corruption in the Refugee Status Determination in the Philippines

(Oct. 1995), p. 4.

Page 26 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

Interviewera

Number

positive

Percent

positive

Number

negative

Percent

negative

DD 52 37.14 88 62.86

EE 46 38.02 75 61.98

FF 98 43.36 128 56.64

GG 33 46.48 38 53.52

HH 177 29.30 427 70.70

II 68 51.13 65 48.87

JJ 144 48.81 151 51.19

aWe excluded interviewing teams, names of interviewers, and officials with fewer than 50

interviews.

Source: Report on Internal Survey on the RSD under the CPA in the Philippines, UNHCR (Manila:

July 1995), Annex A.

Nonetheless, UNHCR and government officials stated that the appeals

process and UNHCR’s mandate authority helped ensure that those with

strong claims to refugee status would be screened in. UNHCR reported that

it reviewed all cases screened out by immigration officials to ensure that

no person with a well-founded fear of persecution would be denied

refugee status.

Our review of the appeals process was limited because the Appeals Board

did not explain its decisions in writing. It was not entirely clear how the

Appeals Board fully resolved discrepancies or credibility issues because it

did not reinterview the appellants, although new or clarifying information

was presented as part of some asylum seekers’ appeal petitions. According

to a former member of the Appeals Board, members received the case files

and any new documentation about a week before a board meeting. This

official said that the Board would often delay a decision while awaiting

additional relevant documentation. Since written explanations were not in

the files, we could not determine whether or how the Board considered

the material clarifications contained in the appeal submissions.

According to a UNHCR report,3

 rumors of corruption persisted during the

first instance screening by immigration officials. UNHCR reported that its

field office repeatedly encouraged asylum seekers to provide specific

information about these charges, offering protection against reprisals, but

no one came forward. Other officials also said that they had heard rumors

of corruption, but these allegations had not been substantiated. In

July 1995, an advocacy group published a report criticizing the screening

3

Ibid., pp. 1-2.

Page 27 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

process and citing 12 cases in which money or sexual favors were

allegedly sought or given in exchange for positive refugee status decisions.

The charges were directed against eight immigration officers and two

UNHCR legal consultants. UNHCR reviewed the cases handled by these

individuals and did not find any evidence of corruption. We did not

evaluate UNHCR’s methodology for investigating the corruption allegations.

UNHCR acknowledged that a number of weak cases had been screened in,

creating an impression of unfairness for those with stronger claims who

were unable to establish a well-founded fear of persecution due to a

convention-related reason.4 UNHCR maintains that the appeals process

identified those cases with a strong claim to refugee status and that the

remaining deserving cases were accepted or identified for refugees status

under its mandate protection. We were unable to validate these assertions.

As discussed below, we identified some cases that appeared to have some

strong or cumulative elements of persecution, but we could not conclude

that they were adjudicated fairly or unfairly given the limitations of the

information in the files and our lack of access to asylum seekers.

Review of Merit Cases

Highlights Difficulties

in Interpreting

Refugee Criteria

Of the 33 screened-out cases we reviewed, most did not appear to have

strong claims based on the evidence contained in the files. Our review

indicated that six cases appeared to have some strong or cumulative

elements of persecution, but we could not conclude that they were

adjudicated unfairly given the limitations of the information in the files

and our lack of access to the asylum seekers themselves. A more lenient

officer might have screened in these cases. While we cannot conclude that

strong cases were screened out, we believe that human judgment is an

unavoidable variable in any refugee screening process in which the

individual’s story is difficult to substantiate. Moreover, according to UNHCR

guidance, the screening decision should consider the duration and the

recency of the persecution as well as the cumulative nature of persecution.

For example, a person could be subjected to many forms of persecution or

harassment that are minor by themselves, but the cumulative nature over

time may constitute convention-related persecution. Because there is no

universally accepted definition of persecution, refugee status decisions

depend greatly on the individual circumstances of each case and the

likelihood of persecution if an individual returns.

4

According to the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, the

1951 Convention stated that an individual could seek refugee status due to a well-founded fear of

persecution for the following reasons: race, religion, nationality, membership of a particular social

group, or political opinion.

Page 28 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix I 

Refugee Status Determination in the

Philippines

We noted some inconsistencies among immigration screeners and widely

varying interpretations of country of origin information. For some

interviewers, potentially persecutory actions taken by the Vietnamese

government were simply “national policy.” For example, UNHCR guidance

states that the duration and hardship incurred as a result of being sent to a

New Economic Zone (NEZ)5

 should be considered if the person was sent to

a zone for convention-related reasons.6

 Several case files of screened-out

individuals described serious hardship in the zones, such as lack of

medical care resulting in the death of a family member, that did not appear

to influence the interviewer. In one screened-out case, the interviewer

wrote, “They were not the only family which was sent to the NEZ but all the

families who were once upon a time associated with the past regime.” This

seems to indicate a decision to send families to the zones that went

beyond the national policy of returning farmers to the countryside for food

production. However, past persecution was normally not enough by itself

to substantiate a well-founded fear of persecution upon return to Vietnam,

and this individual’s claim for refugee status was denied due to lack of

merit and credibility problems.

UNHCR guidance also notes that, although it is a general legal principle that

the burden of proof lies with the person submitting a claim, an applicant

may not be able to support statements by documentation or other physical

evidence in refugee status determination situations. In such cases, UNHCR

recommends that “if the applicant’s account appears credible, he should,

unless there are good reasons to the contrary, be given the benefit of the

doubt.”7

 In about half of the cases we reviewed, immigration interviewers

and UNHCR legal consultants noted credibility problems, but we could not

ascertain from the information provided whether the accounts were

credible.

Several immigration officers rejected claims partly because an individual

or his or her family was able to obtain a family registration card (ho khau)

issued by the Vietnamese government. Such registration is the first step for

many basic rights, such as obtaining education, legal employment,

business licenses, medical care, and ration cards for price-controlled food.

5

In an effort to decongest cities and increase food production, the Vietnamese authorities launched

schemes designed to relocate people from urban areas to the countryside. Many people with bad

family records and no farming experience were also sent to these areas with little government support.

6

Guidelines on the Application of the Refugee Criteria to the Caseload of the Vietnamese Boat People

in Southeast Asia, Office of the United Nations High Commissioner for Refugees (Kuala Lumpur,

Malaysia: Mar. 1992) p. 13.

7

UNHCR Handbook, paragraph 196.

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Appendix I 

Refugee Status Determination in the

Philippines

Several asylum seekers asserted, however, that such registration was

simply a means of controlling citizens and did not, by itself, guarantee

ration cards or medical care, which they said they had been denied. In one

case, an applicant claimed that, due to past political troubles with the

Vietnamese government, the only way his family could get a family

registration card was by paying a bribe. According to the interviewer’s

written decision, that ability to bribe meant that the individual’s family

must be well-off and not subject to persecution. His appeal was

subsequently denied.

Assessing the screening process for Vietnamese veterans was particularly

difficult because it appears that almost everyone who was associated with

the South Vietnamese or U.S. governments was subject to some form of

punishment, such as “reeducation.” In most of the veterans’ cases we

reviewed, the punishment occurred immediately after the communist

victory in 1975 and tended to taper off during the 1980s. Also, the

punishment often appeared light, such as reeducation for several days.

However, there appeared to be some exceptions to this. For example, in

one case, a husband had served in the South Vietnamese Army from 1967

until 1974. From 1967 until 1972, he was an interpreter assigned to the U.S.

Army 517th Intelligence Unit, where he helped interrogate captured North

Vietnamese. In the appeals documents he and his wife submitted, they

noted that, among other things, a new police chief in their district had

been interrogated by the husband during the war and severely beaten by

U.S. intelligence officers. In denying his claim to refugee status, the

interviewer recorded that the police chief had been assigned in 1980, and

that nothing had happened to the couple in the intervening years prior to

their escape. According to their appeal submissions, the police chief was

assigned in 1988, not 1980, and consequently the husband fled, fearing

persecution. The wife stated that she was detained and raped by the new

police chief (“a mere abuse of police power,” granting that it was true at

all, according to the interviewing officer). In addition, the husband claimed

that he was involved in an anticommunist organization in 1987 and was

shot while escaping from his mother’s house in Saigon. The Appeals Board

upheld the first instance decision to deny him refugee status. He requested

a mandate review by UNHCR, but the file did not indicate a response.

Limited GAO Blind

Study Indicates Some

Screening Variations

Prior to our fieldwork, we obtained first instance screening decisions

prepared by Philippine immigration officials for 177 asylum seekers and

then blacked out all the decisions to conduct a test. A team of five GAO

evaluators each reviewed a set of decisions and assessed whether the

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Appendix I 

Refugee Status Determination in the

Philippines

applicant had been screened in or out based on the information in the

decision paper. In general, the team found that many of the screening

decisions presented limited information about the asylum seeker’s claim

for refugee status. The write-ups often lacked important details about the

applicant’s background, situation in Vietnam, and reasons for leaving the

country. Without such information, it was difficult to determine the

relative strength or weakness of individual cases. In addition, many of the

write-ups contained weak support or no explanation for the screening

decisions made by the immigration officials. In reviewing cases, different

members of the team often chose a decision different from the decision

rendered, indicating that a good deal of subjective judgment may be

involved in the adjudicator’s decisions. In the 177 screening decision

papers, there were 7 in which the screening officer laid out clear and

logical reasons for granting or denying refugee status. In a majority of the

other cases, however, it was less clear from the write-ups why a particular

decision had been reached. At least 24 cases appeared to be identical or

very similar, yet received different decisions from different screening

officers. It should be noted, however, that these decision papers were only

one part of an applicant’s file and cannot be used to assess the credibility

and reliability of the screening process, or compliance with international

norms for refugee status determination.

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Appendix II 

Refugee Status Determination in Indonesia

In Indonesia, of the 121 cases we reviewed, 11 were asylum seeker cases

that underwent the regular status determination process. We also

examined the 77 victim of violence cases (which after assessment for

trauma by a social service counselor underwent normal refugee status

determination processing) and 2 of the family unity cases to assess the

strength of their claims for refugee status.1

Our review indicated that the large majority of the cases decided on merit

seemed to have been adjudicated fairly and the decisions appeared

reasonable based on the available case file information. A common

element that ran through the case presentations by the asylum seekers

was the harsh conditions and difficult economic situation present in

Vietnam, especially in the late 1970s and early 1980s. Those asylum

seekers who spent time in a NEZ seemed to have particularly difficult living

situations. However, despite the difficult living conditions, the case file

documentation appeared to lack persecutorial elements and did not

present facts to support a well-founded fear of persecution based on race,

religion, nationality, membership of a particular social group or political

opinion.

Of the 11 merit cases we examined, 2 were screened in while 9 were

screened out. Eight of the nine screened-out cases appeared to have been

properly adjudicated based on information available in the case files.

These cases failed to present convention-related claims, and the

individuals appeared able to live tolerable lives. The case files for the two

screened-in cases also indicated weak claims for refugee status and may

have benefited from a generous application of the refugee criteria.

The following six screened-out cases2

 presented facts or issues reported

by the asylum seekers that we believe may have merited further

consideration or clarification.

Case 1 This case, involving an ethnic Khmer, included cumulative factors that

may have supported a claim for refugee status based upon ethnicity and

political beliefs. The asylum seeker’s father was arrested in 1982 and

sentenced to 7 years in prison (where he died) for his affiliation with an

1

For a detailed description of the screening process in Indonesia, see Vietnamese Asylum Seekers:

Refugee Screening Procedures Under the Comprehensive Plan Of Action (GAO/NSIAD-97-12,

Oct. 21, 1996).

2

The 6 cases were among the 121 cases we assessed on the basis of their claim for refugee status.

Three of these cases were victim of violence, 2 were family unity, and 1 was a merit case included

within the 11 merit cases we examined.

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Refugee Status Determination in Indonesia

antigovernment political party. While the father was in prison, the asylee’s

family lost their family registration card and the children could not attend

school. The individual was arrested in 1986 for antigovernment activities

and imprisoned for 18 months.

Cases 2 and 3 These cases involved a brother and sister who, as adults, were screened

separately, in accordance with established procedures. Their father spent

5 years in a reeducation camp, and the brother spent 7 years in a NEZ. After

returning from the NEZ, the brother was then arrested for printing Catholic

religious materials and was imprisoned from 1986 to 1990. The sister was

arrested for teaching the catechism and sentenced to 22 months of labor

and was repeatedly summoned for questioning due to her brother’s

activities. Upon release from prison, the brother and sister fled Vietnam.

The legal consultant who reviewed the case noted in the file that the

persecution for religious involvement was “remote in time” and

recommended against granting refugee status.

While conditions in Vietnam may have changed in terms of religious

tolerance, we believe the length of incarceration for the applicants could

be considered excessive and therefore warranted a more generous

treatment. When we discussed these cases with a UNHCR official, he told us

that, in hindsight, the decision might have been erroneous for this reason.

However, the individuals were not eligible for mandate because the

mandate exercise weighs factors and events at the time of review, not

when the individuals initially fled Vietnam, and according to the UNHCR

official, Catholicism is no longer persecuted in Vietnam.

Case 4 In this case, the asylum seeker’s father-in-law was detained in a

reeducation camp for 9 years. The asylum seeker was jailed for 26 months,

according to the legal consultant’s notes, for illegal peddling. However, in

her appeal, the asylum seeker linked her imprisonment to her husband’s

political activities and the family’s adverse background. The claim was

discounted during the first instance interview because she could not

document her imprisonment. The Appeals Board rejected her appeal citing

lack of new information. The length of the imprisonment raises the

question whether the asylum seeker’s political background may have been

a factor in the sentencing.

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Refugee Status Determination in Indonesia

Cases 5 and 6 These two cases involve the credibility of the applicants’ claims for

refugee status. Based upon biographical data and the interview

instruments, both applicants appeared to present strong claims. However,

in one case, the reviewing legal consultant doubted the credibility of the

asylum seeker’s claim that he spent 3 years hiding in the compounds of

two churches after the presiding priest of the church where he taught the

catechism was arrested. According to the case file, the interviewer

reasoned that no church in Vietnam would harbor possible criminals. In

the other case, the legal consultant questioned the asylum seeker’s

claimed link to an antigovernment group (FULRO) based on the

applicant’s ethnicity. Although FULRO usually consisted of members from

minority tribes in central Vietnam who sought to establish an autonomous

region, it was not clear that the group denied membership to those from

other ethnic groups, such as the asylum seeker in this case.

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Appendix III 

Refugee Status Determination in Hong Kong

We examined 18 refugee merit cases in Hong Kong from among those

provided through your office.1

 The UNHCR case files we had access to did

not include the interview and appeal information compiled by Hong Kong

authorities. They did, however, contain detailed UNHCR mandate review

assessments and other information, including submissions by the asylum

seekers and/or their lawyers. We also obtained additional documents from

attorneys who represented many of the cases we reviewed. In addition, we

held lengthy discussions with UNHCR staff and some asylum seekers’

attorneys. Due to the smaller number of cases, the greater amount of case

file information, and the type of cases we examined, we were able to

spend more time and learn more about each of the cases in Hong Kong

than in Indonesia and the Philippines.

After reviewing available information, we had a number of questions about

the application of the screening criteria in the cases we reviewed.

However, because we lacked access to the asylum seekers and to all the

components of each case (and we did not seek to adjudicate cases), we

could not conclude whether Hong Kong and UNHCR officials had assessed

the cases appropriately.

In the remainder of this appendix, we present 12 cases that highlight

issues involving (1) the manner in which interviews were conducted;

(2) different interpretations of the screening criteria, such as the use of

country of origin information; (3) communication difficulties resulting

from poor translations by interpreters; and (4) judgments made about the

credibility of cases. Unless otherwise indicated, the sources of the factual

information are representations of the asylum seekers or their lawyers.

Case 1 The asylum seeker in this case reported that he was persecuted for his

commitment to the Catholic Church. In Vietnam, he studied to become a

priest but claimed he was denied admission to a university because of his

family’s religious background. The asylum seeker was arrested and

charged with sabotage for harboring a Catholic seminarian who was trying

to escape the country. He was imprisoned and subsequently escaped.

Hong Kong screening officials challenged his credibility regarding how he

escaped from jail but did not question his involvement with the Catholic

Church.

According to a report from a Catholic chaplain working in the Hong Kong

camp, the asylum seeker had been active in religious organizations in the

1

See our October 1996 report for a detailed description of the screening process in Hong Kong.

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Refugee Status Determination in Hong Kong

camp. His lawyer reported that the Catholic Diocese of San Francisco

sponsored him for a special religious immigrant visa to work in a church in

the United States. The asylum seeker also expressed concern that he

would be rearrested for sabotage if he returned to Vietnam. We discussed

this case with UNHCR officials who thought that the case could qualify on

humanitarian grounds, and they subsequently informed us the asylum

seeker was screened in under UNHCR mandate in November 1996 based

upon new information submitted on the case.

Case 2 The asylum seeker reported that his father was a high ranking civilian in

Da Nang and an official in an anticommunist party during the war. When

Saigon fell, his father was sent to a reeducation camp for nearly 5 years,

and then to a NEZ with his family. Although the asylum seeker completed

high school in 1975, he claimed he was not permitted to take the university

entrance exam. He was required to do forced labor in the NEZ but was

allowed to stop after being injured in an accident. Because he did not have

a registration card, he supported himself in a variety of odd jobs.

According to the appeal petition filed by his lawyer, the asylum seeker

joined an anticommunist group in 1976. When the group was discovered,

he attempted to leave Vietnam but was caught and imprisoned.

After 2 years, he escaped and subsequently joined another anticommunist

group in 1982. When this group was discovered a few years later and some

members were imprisoned, the asylum seeker went underground. He

joined a third anticommunist group in 1987 that sold illegal music in the

black market, some of which contained antigovernment themes. After

authorities reportedly began cracking down on such groups in 1988, the

asylum seeker and his wife escaped to Hong Kong to avoid arrest.

The asylum seeker continued to be politically active in Hong Kong,

opposing conditions in the camp and the forced repatriation of asylum

seekers to Vietnam. In reviewing the case for possible mandate, the UNHCR

reviewer determined that the claim lacked convention-related persecution

and had credibility problems. In this regard, UNHCR found that the asylum

seeker’s family had obtained legal registration by 1988, thereby

demonstrating that the family had reintegrated into Vietnamese society.

Furthermore, the UNHCR reviewer found it implausible that the asylum

seeker would join another political group so soon after escaping prison,

and considered selling antigovernment materials in the black market to be

a criminal offense that was not convention-related. Finally, the reviewer

found that the asylum seeker’s political activities in Hong Kong were

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Refugee Status Determination in Hong Kong

directed against the screening process and were not convention-related

activities.

Notwithstanding the UNHCR’s initial determination, because of the

complexity of the case, UNHCR informed us that it would fully review the

case again. In November 1996, the asylum seeker was screened in under

UNHCR mandate.

Case 3 According to the asylum seeker, his father was a counterintelligence

officer in the South Vietnam Army (ARVN) from 1954 to 1975 and his

mother worked at a large American base in Da Nang. His father was in a

reeducation camp for 3 years, then sent to a NEZ with his family after their

home was confiscated. In 1981, the family fled the NEZ and the children

were denied the right to attend school. The family was also subjected to

weekly public humiliation sessions that were intended to force them back

to the NEZ. The following year, when the asylum seeker was 17 years old,

he and another individual were implicated in an event in which a

policeman was killed. He tried to escape from Vietnam but was caught and

sentenced to 3 years in prison on charges of aiding an anticommunist

group and participating in the death of the police officer. He failed in an

attempted prison escape and spent more than 7 years in prison.

The Hong Kong review board, which interviewed the asylum seeker, found

that neither he nor his family suffered convention-related persecution

despite facing discrimination for convention reasons. It did not find the

asylum seeker’s account of his arrest for the death of the policeman to be

credible and concluded that if he had been responsible for the policeman’s

death, he would have been charged with murder or at least manslaughter.

The board also concluded that the asylum seeker had embellished and

fabricated this aspect of his claim. The UNHCR review of the case

essentially agreed with the review board decision, finding serious

credibility concerns. The UNHCR reviewer thought it credible that the

asylum seeker spent considerable time in prison and possibly suffered

mistreatment, but the imprisonment resulted from a common crime and

was not convention-related.

We questioned the completeness of the first interview with the asylum

seeker that was conducted only 1 day after he arrived in Hong Kong, but

UNHCR said that the first interview was part of the material and evidence

offered by the asylum seeker and was properly considered. UNHCR also

noted that the asylum seeker gave totally different accounts to the

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Refugee Status Determination in Hong Kong

interviewing officer concerning the reason for his imprisonment and

omitted or changed circumstances in his life story. UNHCR concluded that

the benefit of the doubt principal did not apply since the asylum seeker’s

account lacked coherence and plausibility, and ran counter to generally

known country of origin information. UNHCR said that the asylum seeker

might return to prison if repatriated, but the evidence suggested the

imprisonment would not be for a convention-related issue.

Case 4 The asylum seeker claimed that her father, a lieutenant in the ARVN, died

after being captured by the communists in 1975. Her family’s property was

confiscated, and she was resettled in a NEZ with her grandmother and

mother. Her grandmother contracted malaria and died, and the asylum

seeker also became ill with malaria so her mother took her out of the zone

illegally. The asylum seeker reported that her mother could not provide for

her, so she was sent to live with a family friend and former military

comrade of her father’s, and her mother disappeared. Because of her

illegal residence, the asylum seeker was not allowed to attend school. She

helped the new family with an illegal vending business, but was caught and

sent to a youth detention center due to her age (15) at the time of her

arrest. She escaped to Hong Kong in January 1991 when she had just

turned 16.

Her lawyer provided us with a copy of the review board’s 1991 decision,

which challenged her credibility because of several contradictions in the

record. The board decision noted that “there is no country of origin

information that the Review Board is aware of which supports the

proposition that children of ex-ARVN soldiers are systematically

discriminated against or persecuted in present day Vietnam.” The asylum

seeker’s lawyer, however, submitted to UNHCR the following excerpt from

the Country Reports on Human Rights Practices for 1992 issued by the

U.S. State Department: “Family members of former South Vietnamese

Government and military officials . . . have been systematically

discriminated against.”

UNHCR also reviewed the case and, while noting that the asylum seeker “led

a miserable existence,” concluded that her life had improved after she was

sent to live with her father’s friend. In the UNHCR assessment for mandate

review, the reviewer also used country of origin considerations to decide

that the asylum seeker had been treated like any other homeless child. The

reviewer “[does] not find any discrimination suffered amounts to

persecution” even if benefit of the doubt were given to claims.

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Refugee Status Determination in Hong Kong

Case 5 According to the case file, the asylum seeker served with the U.S. Army

from 1963 to 1975. He was sent to a reeducation camp for 3 days after the

war and then to a NEZ with his family. His wife and children contracted

malaria and were allowed to leave the NEZ for treatment. Two years later

he joined his family without government approval and the family lost their

ho khau. As a result, his children were denied public education for 10

years and had to perform forced labor at regular intervals. In 1988, the

asylum seeker received a ho khau but also lost his job when the factory

where he worked became state-run. After his ho khau was reinstated, the

asylum seeker’s children were allowed to pursue their education again.

Because he had helped protest the factory takeover, he was detained for 2

months and required to report regularly to the authorities until 1991. In

1989, while serving on the board of directors of a school, he protested a

policy change and was subjected to more forced labor. In 1991, he was

arrested for illegal residency and although he was released after he

presented his ho khau, he was required to report every week to the

authorities.

UNHCR reviewed this case and concluded that the asylum seeker’s military

background was remote in time and that the difficulties he had

encountered did not amount to persecution. UNHCR indicated that the

asylum seeker’s illegal residency made it difficult for him to obtain a ho

khau. UNHCR also noted that the issue of ho khau is no longer a problem as

the implementation of the CPA ensures reinstatement of a ho khau to all

returnees. Furthermore, the factory protest was viewed as a public

disturbance and not convention-related persecution.

Case 6 The asylum seeker served in the South Vietnam Army from 1960 to 1969

and left because of injury. He was the district security leader in Da Nang

from 1970 to 1975, a nonmilitary governmental position. The asylum

seeker was in a reeducation camp from 1975 to 1976 and 1978 to 1981, and

his home was confiscated. He belonged to an antigovernment religious

group from 1981 until he left Vietnam in 1990 due to fear of arrest.

In conducting a mandate review of this case, the UNHCR legal counselor

concluded that the asylum seeker “should be recognized on account of

political opinion,” but another UNHCR eligibility counselor disagreed as he

found the case too doubtful to apply the benefit of the doubt principle. As

a result, the legal counselor reinterviewed the asylum seeker and

determined again that a favorable decision should be made. Due to the

difference of opinion, UNHCR’s Assistant Chief of Mission reviewed the case

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Refugee Status Determination in Hong Kong

and decided that “the asylum seeker could not be granted the benefit of

the doubt due to irreconcilable credibility problems which were material

to the claim.”

Case 7 This case was unusual in that a month after the asylum seeker’s interview

with the review board, he was recognized as a refugee and moved to a

refugee transit camp. According to his lawyer’s submission, the asylum

seeker was informed 17 days later that he was not a refugee and had to

return to the asylum camp. We did not see any record in the UNHCR file

explaining why this situation occurred. UNHCR informed us that “it was an

administrative error” and was “amended as soon as possible.”

The asylum seeker was a member of a prohibited religious sect in Vietnam

and claimed to have been a victim of religious persecution. He met a

publisher of religious books in the summer of 1990 in Vietnam and was

introduced to a book published by the Ching Hai group in Taiwan. The

asylum seeker introduced the book to his father, who had become a

Buddhist monk a few years earlier. His father also liked the book and

distributed 100 copies to his followers and introduced them to the Ching

Hai philosophy. The Ching Hai group has been described as religious but

also critical of the Vietnamese government. The asylum seeker reported

that he assisted in the printing of the book and in September 1990, he and

his father and several others were arrested for “propagating

anti-government material.” The asylum seeker subsequently was able to

escape and flee to Hong Kong while his father remained in prison.

The Hong Kong Review Board’s decision stated that “there was no

information that Buddhism followers were being suppressed by the

Vietnamese authorities at the moment or would be suppressed upon their

return.” UNHCR, however, provided us information that “the Ching Hai

religious sect is prohibited in Vietnam and can only be practiced by its

followers in private. There can be repercussions if the faith is practiced in

public which may involve questioning by police, confiscation of material,

or threats of further problems.” UNHCR indicated though that it was not

aware of any person who had been sentenced or arrested for following

Ching Hai.

Case 8 The asylum seeker reported that he went to a high school military

academy, then entered the South Vietnamese army. In 1975, he was

imprisoned for not having a military identification card and was sent to a

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Refugee Status Determination in Hong Kong

reeducation camp for 10 months, and then sent to a NEZ. In 1985, he

claimed he went to Cambodia and joined an antigovernment group Ancien

Enfants de Troup (AET). Subsequently, two other members of the group

were arrested for distributing antigovernment leaflets. Fearing arrest, the

asylum seeker fled to Hong Kong.

A complicating issue in this case was determining when and on what basis

statements by the asylum seeker were considered noncredible. According

to UNHCR, the asylum seeker’s claim in this case was rejected because of

inconsistencies in statements given by the asylum seeker about his

activities with the AET, how he made contact with his wife, and statements

provided by himself and his wife. According to information about the

mandate review assessment, the asylum seeker did not mention his

involvement in the antigovernment group during a preinterview counseling

session but did so later during the status determination interview. When

we asked whether it was appropriate to question credibility based upon

what was not said in a counseling session, UNHCR responded that

credibility is weighed based on all statements made by the asylum seeker.

No distinction is made as to when or in which forum statements are made.

UNHCR also noted that their case file records indicated the asylum seeker

had stated in the prescreening interview that he was never involved in any

antigovernment organization. However, the part of the case file we were

able to review did not confirm this assertion.

Case 9 The asylum seeker’s father was a soldier in the ARVN and a driver for the

U.S. military until 1974. In 1975, the father was sent to a reeducation camp

but escaped after 1 year. He remained underground and informed his

family that he was a member of an anticommunist group known as

FULRO. He was recaptured in 1982 and imprisoned until being released in

1988. The asylum seeker was 13 years old in 1975, was not allowed to

attend school, and, with other members of the family, was sent to a NEZ.

The family left the NEZ after 10 days, and although they had no registration

card, they worked in various farming and factory jobs. In 1985, the asylum

seeker was arrested with his Kung Fu teacher, because the latter was

supposedly involved in an antigovernment organization. He was

imprisoned for almost 2 years for “intention to go against the government.”

In 1989, he was arrested again because he was associated with another

individual who belonged to an antigovernment group. According to his

claim, the asylum seeker cut his wrist while in solitary confinement and

was taken to the hospital, where he escaped the following day and then

eventually fled to Hong Kong.

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Refugee Status Determination in Hong Kong

In reviewing this case, we noted two issues: (1) language difficulties that

appeared to complicate the case and (2) the manner in which the various

screening interviews were conducted.

The petition filed by the asylum seeker’s lawyer reported several language

difficulties encountered by the asylum seeker, who is ethnic Nung and did

not speak Vietnamese fluently. His case was rejected in large part because

of inconsistencies presented in different interviews. He, however,

complained even before his rejection notice that his request for the

interviewing official to read back the interview had been denied.

According to the lawyer’s petition, the interviewing official had not

accurately recorded the asylum seeker’s claim.

Notes taken by the UNHCR monitor at the Hong Kong Review Board

interview indicated that the way the interview was conducted may have

resulted in an inaccurate presentation of the asylum seeker’s claim. The

UNHCR official noted that the interviewer “badgers, is hostile, imperious

and almost deliberately misinterprets the [asylum seeker]. [The

interviewer] had the irritating habit of repeating everything the [asylum

seeker] said, but in a tone of disbelief.” UNHCR also conducted an interview

for a mandate review. It was noted that “the language difficulties are still a

problem as noted by the interpreter and may have led to some material

components of the claim being missed at the interview.” UNHCR maintained

that in the mandate review, the legal consultant clearly understood and

recorded all facts. Even though discrepancies due to communication

difficulties were discounted, the asylum seeker’s claim for refugee status

still had major inconsistencies that raised credibility doubts.

Case 10 The asylum seeker said that he served in the ARVN from 1970 until he was

discharged due to battle wounds in 1973. In 1975, he went to a reeducation

camp for 2 months and then was sent to a NEZ with his wife and three

daughters. According to the asylum seeker, the family faced severe

difficulties in the NEZ and all three of his daughters became ill and died.

Although a health clinic was available, the asylum seeker reported that his

family was denied access to it because of the family’s unfavorable

background. The asylum seeker helped his brother, who belonged to an

anticommunism group, deliver some documents and was arrested. He was

released from prison in 1980 after a year after agreeing to serve as an

informer. The asylum seeker and his wife then left the NEZ and attempted

to escape from Vietnam rather than inform on his friends. The escape

attempt failed and he was arrested and beaten so severely that his right leg

Page 42 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
Appendix III 

Refugee Status Determination in Hong Kong

became paralyzed. After a year in solitary confinement, he was sentenced

to 7 years of reeducation for the political crime of “counter-revolution,”

but was released in 1987 after 5 years with the condition that he could not

leave his village for 3 years without permission. He was also forced to do

unpaid labor and was not able to obtain a family registration card. The

asylum seeker was detained by the authorities supposedly for

antigovernment activities two more times during 1988 and 1989 but was

not tried. In 1990, he helped four others write an anonymous letter

complaining about corrupt local officials. Fearing that the authorities had

learned of his involvement, he escaped with his family to Hong Kong,

while the other four people were imprisoned from 2-1/2 to 4 years.

Because he evaded arrest, he is afraid that he would be imprisoned if

returned to Vietnam.

The case appears to have been rejected because of inconsistencies and

credibility issues raised in the screening interviews. The Hong Kong

Review Board did not find the asylum seeker was persecuted in the NEZ;

rather his experience was in line with national policy in Vietnam to

redistribute population. The officials also apparently did not believe the

asylum seeker’s accounts about the death of his children and about the

various arrests and imprisonment he endured. The UNHCR reviewer found

the events that occurred in the distant past to be believable but the more

recent events were less credible and may not have been

convention-related. As a result, the reviewer recommended that the claim

be rejected. Regarding the possible imprisonment of the asylum seeker if

returned to Vietnam, UNHCR considers the evasion of arrest by itself not to

be convention-based persecution.

Case 11 This asylum seeker arrived in Hong Kong in 1991 at the age of 26. The year

before, other members of his family, including both parents and three

siblings, also arrived in Hong Kong. The other members of the family were

granted refugee status, but the asylum seeker was rejected. We asked

UNHCR whether the circumstances of the other family members should

have influenced the asylum seeker’s case. The principal applicant in the

other case was the asylum seeker’s brother who was 2 years younger.

Since the brothers were close in age and relatively young such that it was

unlikely that their personal histories differed too much, it was not clear

why a different decision was reached in each case. UNHCR indicated that

under the Handbook criteria, “the situation of each person must be

assessed on its own merits.”

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Appendix III 

Refugee Status Determination in Hong Kong

We also found a letter from the asylum seeker to UNHCR in such poor

English that the meaning was uncertain, and there were no notes attached

regarding any attempt to clarify the meaning. UNHCR assured us, however,

that “there were no language problems which affected the assessment of

the case.”

Case 12 The asylum seeker is a member of a Nung ethnic tribe that was

well-known for its anticommunist activities before and after 1975. He

became interested in Christianity, completed a course at a missionary

school, and became a pastor’s assistant. When the communists took

control in 1975, the pastor fled and the asylum seeker conducted services

for about 6 months. On hearing that a former classmate was arrested for

conducting illegal religious services, the asylum seeker went into hiding

and subsequently joined FULRO, an armed anticommunism group. He

participated in many battles against communist military forces and was

wounded in 1977. Afterwards, he was imprisoned and treated inhumanely,

according to his claim. The following year he escaped from prison with a

friend, assumed a fake identity, and worked on a farm for several years. In

1987, the asylum seeker became involved in a land dispute and was

questioned by the local authorities. The following year, his fellow-escapee

was arrested. Fearing arrest himself, he went into hiding and learned that

his true identity had been exposed. As a result, he escaped to Hong Kong.

In the camp, even before being interviewed, he “expressed concerns

repeatedly about his ability to communicate in Vietnamese,” according to a

UNHCR record. His case was screened out due to lack of credibility. We

noted many contradictions in his file and three different versions of the

same story. The asylum seeker’s lawyer told us that it was difficult for the

asylum seeker to communicate with anyone, including his own lawyer.

However, UNHCR officials reported that they had taken a number of

measures to enable the asylum seeker to communicate clearly during the

screening interviews, including counseling the asylum seeker on preparing

his presentation and informing the Hong Kong screening officials about

the asylum seeker’s language difficulties prior to his being interviewed.

UNHCR officials said they would reassess the case and ask the asylum

seeker about the different versions of his claim. However, the asylum

seeker repatriated before the reinterview could occur. UNHCR planned to

continue to monitor his reintegration into Vietnam.

(711126) Page 44 GAO/NSIAD-97-51 Vietnamese Asylum Seekers
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