Vietnamese Asylum Seekers: A Review of Selected Cases in Four Southeast
Asia Countries (Letter Report, 12/31/96, GAO/NSIAD-97-51).
Pursuant to a congressional request, GAO reviewed how the refugee status
determination process worked for a selected number of Vietnamese asylum
seekers in Southeast Asia, focusing on: (1) the international refugee
criteria used under the Comprehensive Plan of Action; and (2) how the
screening process was implemented.
GAO found that: (1) beginning in late 1994, the U.N. High Commissioner
for Refugees (UNHCR) undertook a regionwide review of screened-out cases
to determine whether asylum seekers would qualify for resettlement
according to established family unity criteria; (2) UNHCR reviewed
hundreds of cases, but found most failed to meet the program criteria;
(3) 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; (4) among these were 72 cases that were
forwarded to U.S. embassies for consideration for resettlement; (5)
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; (6) 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;
(7) 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; (8) victim of violence cases involved individuals
who were physically assaulted on the way to, or upon arriving in, one of
the first asylum countries; (9) according to UNHCR officials, because of
the trauma and abuse the individuals suffered, many were unable to
articulate their claim for refugee status; (10) 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; (11) depending on where the best
support structure existed, individuals could be returned to Vietnam to
live with family or resettled in a third country; (12) of the 74 merit
cases GAO reviewed, it appears that most did not present strong refugee
claims based on evidence contained in the files; (13) many case files
were well-documented and presented detailed facts and logical
explanations for decisions that were made, while others contained
documents that pointed to differences and inconsistencies in the way
claims may have been handled; and (14) as a result, in some cases, GAO
could not determine how well the case files reflected the presentation
of the asylum seekers' claims.
--------------------------- Indexing Terms -----------------------------
REPORTNUM: NSIAD-97-51
TITLE: Vietnamese Asylum Seekers: A Review of Selected Cases in
Four Southeast Asia Countries
DATE: 12/31/96
SUBJECT: Political refugees
International relations
International organizations
Foreign governments
Immigration or emigration
Eligibility criteria
Eligibility determinations
Embassies
IDENTIFIER: UNHCR Comprehensive Plan of Action
Indonesia
Philippines
Malaysia
Hong Kong
Dept. of State Orderly Departure Program
Vietnam
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Cover
================================================================ COVER
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
GAO/NSIAD-97-51
Vietnamese Asylum Seekers
(711126)
Abbreviations
=============================================================== ABBREV
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
Letter
=============================================================== LETTER
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
------------------------------------------------------------ Letter :1
For several years after the fall of the South Vietnamese government
in 1975, countries in Southeast Asia agreed to grant temporary asylum
to the 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 countries\1 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 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
--------------------
\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.
\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).
RESULTS IN BRIEF
------------------------------------------------------------ Letter :2
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 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 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
------------------------------------------------------------ Letter :3
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.
CRITERIA FOR ADJUDICATING
CASES
---------------------------------------------------------- Letter :3.1
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 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.
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.
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.
--------------------
\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.
\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.
\10 While 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.
\11 The 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.
REVIEW OF INDIVIDUAL FAMILY
CASES GENERALLY FOLLOWED
PROCEDURES
---------------------------------------------------------- Letter :3.2
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 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, 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
------------------------------------------------------------ Letter :4
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
---------------------------------------------------------- Letter :4.1
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 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
---------------------------------------------------------- Letter :4.2
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 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
---------------------------------------------------------- Letter :4.3
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 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 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
------------------------------------------------------------ Letter :5
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 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 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.
--------------------
\12 UNHCR Report on Alleged Corruption in the Refugee Status
Determination in the Philippines (Oct. 1995).
AGENCY COMMENTS
------------------------------------------------------------ Letter :6
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
------------------------------------------------------------ Letter :7
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 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 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
Victim
of
Family violen
unity ce 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.
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.
--------------------
\13 We did not include Thailand in our review due to limited time and
resources.
\14 Although 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.
---------------------------------------------------------- Letter :7.1
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
REFUGEE STATUS DETERMINATION IN
THE PHILIPPINES
=========================================================== Appendix I
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
--------------------------------------------------------- Appendix I:1
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.
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.
--------------------
\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.
CONCERNS WITH THE PROCESS
--------------------------------------------------------- Appendix I:2
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 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
Percen Percen
Number t Number t
positi positi negati negati
Interviewer\a ve ve ve ve
-------------------------------------- ------ ------ ------ ------
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
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
----------------------------------------------------------------------
\a We 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 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.
--------------------
\2 UNHCR Report on Alleged Corruption in the Refugee Status
Determination in the Philippines (Oct. 1995), p. 4.
\3 Ibid., pp. 1-2.
\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.
REVIEW OF MERIT CASES
HIGHLIGHTS DIFFICULTIES IN
INTERPRETING REFUGEE CRITERIA
--------------------------------------------------------- Appendix I:3
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.
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. 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.
--------------------
\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.
LIMITED GAO BLIND STUDY
INDICATES SOME SCREENING
VARIATIONS
--------------------------------------------------------- Appendix I:4
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 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.
REFUGEE STATUS DETERMINATION IN
INDONESIA
========================================================== Appendix II
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 cases\2 presented facts or issues
reported by the asylum seekers that we believe may have merited
further consideration or clarification.
--------------------
\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.
CASE 1
-------------------------------------------------------- Appendix II: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 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
-------------------------------------------------------- Appendix II:2
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
-------------------------------------------------------- Appendix II:3
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.
CASES 5 AND 6
-------------------------------------------------------- Appendix II:4
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.
REFUGEE STATUS DETERMINATION IN
HONG KONG
========================================================= Appendix III
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.
--------------------
\1 See our October 1996 report for a detailed description of the
screening process in Hong Kong.
CASE 1
------------------------------------------------------- Appendix III: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 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
------------------------------------------------------- Appendix III: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 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
------------------------------------------------------- Appendix III: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 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
------------------------------------------------------- Appendix III: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.
CASE 5
------------------------------------------------------- Appendix III: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
------------------------------------------------------- Appendix III: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 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
------------------------------------------------------- Appendix III: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
------------------------------------------------------- Appendix III: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 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
------------------------------------------------------- Appendix III: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.
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
------------------------------------------------------ Appendix III: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 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
------------------------------------------------------ Appendix III: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."
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
------------------------------------------------------ Appendix III: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.
*** End of document. ***