AUSTRALIA: Mandatory detention and denial of the right to asylum, denial of independent fair trial, serious risk of ill-treatment if expatriated
AHRC has previously issued urgent appeals drawing attention to the brutal treatment of asylum-seekers and the appalling conditions in detention centres in Australia. Since last year AHRC has been concerned by the case of Stephen Khan, 27, from Kashmir, who has been in detention in Australia since 1998 after failing an asylum claim.
In spite of ample evidence presented to the Minister of Immigration and Multicultural Affairs, Philip Ruddock (in whose hands solely Mr Khan’s case now rests) to indicate that Mr Khan’s case is genuine, his claim has been repeatedly rejected on spurious grounds. Mr Khan’s case is indicative of the injustices being committed against asylum seekers in Australia by the Department. These injustices stem from the inability of Mr. Khan and other asylum seekers to appeal their cases through the court system.
Recently the Minister commented that he has a ‘last resort’ for those people in detention centres for more than three years. Advocates for Stephen Khan are concerned that his deportation is imminent. We request that readers write letters to the Minister seeking a change in his position on this case. A sample letter follows.
Stephen Khan began his life as a refugee from his home in Indian occupied Kashmir in 1996 after escaping from police detention. He had been kept naked, interrogated and tortured by the police for 10 days before his escape, in relation to his activism in the Jammu and Kashmir Liberation Front (JKLF) which he had joined after the Indian authorities arrested, tortured and murdered his father. His refugee journey took him through hiding in Kashmir and Punjab, to Thailand, Singapore, Papua New Guinea and then finally a harrowing, week long journey to Australia in a rubber dinghy.
He has been locked up in terrible conditions ever since (except for a brief escape from detention, which earned him 3 months in a more humane regular prison cell). Kept uninformed of his rights, he unknowingly failed to bring his case to a court because a time limit passed by. Thus, Mr. Ruddock, the Minister for Immigration, is the only person he can appeal to – the same Minister that earned international condemnation over his refusal to allow the ‘Tampa’ to land on Australian shores, carrying hundreds of desperate refugees who had narrowly escaped drowning.
According to the latest human rights reports, it is clear that Stephen Khan is highly likely to face ill-treatment, torture, arbitrary arrest and detention if he is forced to return to his country. This is why he fled in the first place. Full details of this case are provided below the SUGGESTED ACTION and SAMPLE LETTER for your information, and further information on Kashmir is available at AHRC’s Kashmir Human Rights Site,
Mr Khan’s case is entirely in the hands of the Minister for Immigration, Philip Ruddock. Please write to him and express your concern. Please send copies to the other addresses attached. A sample letter follows.
Dear Honourable Minister
RE: Case of Mr Stephen Khan
I am deeply concerned by the case of Mr Stephen Khan, a Kashmiri national who has been in detention in Australia since 9 September 1998. You alone, sir, have the power to determine his fate.
You have been provided with sufficient evidence by Mr Khan’s lawyer and other agencies to indicate that he has a well-founded fear of detention and torture if he is forced to return to India. If your Department undertakes such a course of action it is likely to be in violation of Australia’s international obligations under the Convention relating to the Status of Refugees and Convention against Torture.
I urge you to grant Mr Khan – and all other detainees in Australian detention centres demonstrating evidence of legitimate claims – protection visas. I trust that you will undertake this action in order to secure Australia’s international reputation from any further damage than it has already sustained through its harsh policies and practices regarding asylum seekers.
SEND FAXES AND EMAILS TO:
1. Philip Ruddock, MP
Minister for Immigration and Multicultural Affairs
Suite MF 40
Canberra ACT 2600
TEL: +61 2 6277 7860
FAX: +61 2 6273 4144
SALUTATION: Dear Minister
SEND COPIES TO:
1. John Howard MP
House of Representatives
Canberra ACT 2600
TEL: +61 2 6277 7700
FAX: +61 2 6273 4100
SALUTATION: Dear Prime Minister
Also you can send an email via his home page: http://www.pm.gov.au/youreedback/feedback.htm
2. Prof. Dr. Ruud Lubbers
United Nations High Commissioner for Refugees
TEL: +41 22 739 8111
SALUTATION: Dear High Commissioner
PLEASE MARK: ATT – HIGH COMMISSIONER LUBBERS
FULL DETAILS OF STEPHEN KHAN’S CASE
Stephen Khan comes from a town in Indian-occupied Kashmir, about 40 km from the Line of Control. His father owned a printing press that was sometimes used by the Jammu and Kashmir Liberation Front (JKLF). In 1994 his father was arrested, tortured and killed by the Indian authorities. When Mr Khanwho at that time was a tertiary student in Srinigarwent with his mother to see the body they observed clear injuries consistent with evidence of torture. His mother became traumatised and collapsed, later falling into a coma. She died after three months.
Mr Khan returned to Srinigar and became increasingly involved in JKLF activities, including anti-Indian protests and propaganda distribution. In March 1996 he was arrested with four other persons, and their propaganda material was confiscated. He was accused of being involved in militant activities and taken to the Raj Bag interrogation centre. He was kept naked in solitary confinement, interrogated and tortured there for ten days. After that he was put in a vehicle to be transferred to the central prisonwith the expectation that he would soon be executedwith other detainees. An Islamic militant group, Lashkar-e-Toieba, attacked the vehicle to free a comrade among the other men inside. All detainees escaped. Mr Khan fears that as a result he has now been identified by the Indian authorities as a member of the Lashkar-e-Toeiba, which is reportedly the most brutal and extremist anti-Indian group among those operating in the Indian occupied territory.
Mr Khan and a friend went into hiding in Kashmir for nine months before crossing into Punjab, where they hid until May 1997. They obtained false documents and tickets to Singapore via Thailand, from where his friendwho was supporting him financiallywent to the UK. Mr Khan stowed away on a container ship, unaware of where it was going. It docked in Port Moresby, Papua New Guinea, in July. He survived there for over one year on assistance from a church group, before completing the journey to Australia with five others crammed into a dinghy. After a week he reached the Torres Strait of Australia on 9 September 1998. There he was immediately placed under detention. Shortly after he was transferred to the Port Hedland Immigration Detention Centre (IDC).
On 24 September 1998 Mr Khan applied for a protection visa. His application was rejected by the Department on 20 October 1998 and his appeal to the Refugee Review Tribunal was also rejected on 11 January 1999. In its decision, the Tribunal did not reject Mr Khan’s claim outright. It was prepared to accept the validity of his claim to a role in the JKLF, his arrest and subsequent escape. However, the Tribunal argued that his role appeared to be a minor one, and in this regard cited a cable by the Australian Department of Foreign Affairs and Trade (DFAT) of July 1997:
“(JKLF) leaders usually can travel throughout the country and have access to diplomats in Delhi or those visiting Jammu and Kashmir. We consider that the treatment of persons who have had low level involvement or affiliation with the JKLF… could be anticipated to conform to Indian law and associated processes. That is not to say that there is no prospect of human rights abuses being committed by security forces against such persons… However our assessment is that such a risk would be low.”
In reaching this conclusion, DFAT appears to have ignored the possibility that high-profile leaders are treated cautiously by the Indian authorities to avoid the possibility of adverse international opinion being directed towards them: a protection lacking to low-profile members such as Mr Khan.
The Tribunal also made an issue out of apparent inconsistencies in Mr Khan’s initial accounts (September 9 & 23) and subsequent interviews. In particular, it pointed out that Mr Khan did not initially mention that he had been a member of JKLF or that he had been tortured. However Mr Khan knew nothing of Australian law or administrative procedure, had just survived an arduous week-long voyage at the end of a much longer journey and was wary and confused. He answered the questions that were put to him: these related to the route that he took, how he arrived and what documents he had on him. He was told that if he was going to make a claim for a protection visa he would get a lawyer, and to save the rest of the story till then. It was only with the lawyer that he told his entire case. Further confusion related to his initial dealing with interviewers in English, whereas at the time of the Tribunal hearing he was provided with an Urdu interpreter.
Another ground for the rejection of Mr Khan’s case was that conditions in Kashmir appeared to be improving, again citing the DFAT cable of July 1997 to the effect that:
“Detention and torture have declined in Jammu and Kashmir in keeping with:
1. A growing emphasis on respecting human rights by the security forces there…;
2. A decline in militancy in that state;
3. The return of an elected government to the state with an interest in preventing human rights abuses there.”
Again, the convenient adoption of this position on conditions in Kashmir is to ignore the long-term climate of systemic abuse of human rights there, and even allowing for the possibility that conditions were improving at the time the Tribunal was making its analysis, ignores the possibility of a subsequent deterioration in conditions, as has in fact occurred (see below).
At the time another avenue available to Mr Khan was to appeal to the Federal Court, however this action had to be taken within 28 days. Mr Khan had no knowledge of this procedure, and was not informed of it. After his case failed, he was put in a padded cell for seven days. He went on a hunger strike, fearful that he was about to be deported. By April 1999, having recovered from his hunger strike, frustrated by the failure of his case and fearing deportation, Mr Khan escaped from Port Hedland IDC. Shortly after he was taken back into custody and, ironically, sentenced to prison for three months: as conditions in Australian prisons are better than the IDCs, this can hardly be considered punishment. In August 1999 Mr Khan was released from prison and transferred to Perth.
Perth IDC is a tiny facility adjacent to the international airport. Originally constructed to accommodate arrivals on aircraft without valid visas, it is not designed to hold detainees for more than seven days. Mr Khan has been held there for nearly two and a half years. He sleeps in a ten-man dormitory of double-bunks, is under 24-hour surveillance and has been subject to racist abuse by guards. In November 2001, when another long-term detainee was transferred elsewhere, Mr Khan reports that he asked the centre manager as to why he had been detained there for so long and was informed that it was “an order from Canberra”, and no further information was available. Mr Khan recently wrote an article on life in the detention centre, which was published in Human Rights SOLIDARITY (Vol. 11, No. 8, August 2001), “Dying Every Day: The Life of Asylum Seekers under Australia’s Mandatory Detention Policy” (http://www.ahrchk.net/hrsolid/mainfile.php/2001vol11no08/1174/).
Since he failed to appeal to the Federal Court, the only avenue remaining for Mr Khan is to appeal directly to the Minister, Philip Ruddock, to intervene in his case on the grounds of ¡§public interest¡¨ (sn. 417 of the Migration Act). Mr Khan has made a number of appeals, and submitted new evidence to support his claim, including the following:
1. A report by a clinical psychologist who has met Mr Khan regularly since April 2000. In his report the psychologist questions the conclusions of the Tribunal regarding Mr Khan’s case, suggesting that communication problems in earlier interviews may also have been to blame for many of the inconsistencies in his story, and continuing:
“Of more significance however is the question of whether the key traumatic events which Mr Khan has described following his father’s death actually occurred. I have ha
d extensive experience working as a Psychologist with survivors of severe trauma during childhood and as adults and there is no doubt in my mind that Mr Khan is suffering from Post Traumatic Stress Disorder… [as] a consequence of having actually experienced the traumatic events he describes.”
2. An affidavit signed by a cousin of Mr Khan now living in Pakistan, affirming that Mr Khan’s father was tortured and killed in 1994 and otherwise verifying the facts presented by Mr Khan to the Tribunal. The cousin also claims to have been present in March 1996 when Indian security forces were searching for Mr Khan after his escape. During this period the troops beat and threatened villagers in order to uncover his whereabouts.
3. A letter from the headman of Mr Khan’s village, confirming his identity and offering critical additional information in support of his claim. According to this document, the links that Mr Khan’s father had with the JKLF had caused problems for his relatives and the village as a whole. Some of Mr Khan’s relatives had fled the village due to harassment by security forces. Furthermore, when the security forces were searching for Mr Khan in March 1996 they told the headman that they were looking for ¡§a militant¡¨ who had escaped custody, meaning that they were specifically linking him with the group whose attack had facilitated his escape. According to the headman’s letter, as of 2001 the security forces were still looking for Mr Khan, and were harassing his relatives in order to obtain information as to his whereabouts: a cousin of Mr Khan’s was bailed out by the headman after being detained and tortured in connection with Mr Khan’s case. Likewise, the headman himself has been subject to harassment due to the case.
4. Further updated information on the situation in Kashmir, indicating a substantial deterioration in conditions in the territory since the time of Mr Khan’s arrest, including reports by Human Rights Watch, (July 1999 and August 2000), Amnesty International (February 1999), and the US Department of State 1999 Country Report on Human Rights Practices in India.
In April 2000 the Kashmir Council of Australia submitted a letter to the Minister on Mr Khan’s behalf, pointing out the extent of atrocities committed by the security forces in occupied Kashmir. It questioned the Tribunal’s suggestion that it would be safe for Mr Khan to live in some other part of India, concluding that the “information held with the [Tribunal] is out of date and dangerous if applied to judge Kashmiri asylum seekers”.
In June 2000 Amnesty International also wrote to the Minister regarding Mr Khan’s case, to the effect that it had received confirmation from the JKLF (UK) through the Kashmir Council of Australia that Mr Khan was a member. It concluded, “Amnesty International’s interview and research with Stephen Khan led to the formation of the opinion that he has a well founded fear of being returned to India”.
More recent reports by the US Department of State and UK Home Office, among others, indicate further deterioration of conditions in Kashmir, and among other things note a marked increase in abduction of civilians by security forces on both sides of the Line of Control.
To date the Minister has rejected all approaches and applications made on Mr Khan’s behalf. Throughout this time Mr Khan has faced the risk of removal to India from Australia, however for reasons apparently associated with some difficulty in obtaining travel documents from the Indian government for his return he continues to languish in Perth IDC. Public statements by the Minister indicate that the reason for the delay in Mr Khan’s removal is that he refuses to cooperate with the Department and sign documents to facilitate his return. Obviously Mr Khan does not wish to assist the Department in deporting him back to a place that he feels his life will be at jeopardy.
As of January 2002 the Australian government is advising its citizens as follows:
“Australians should not travel to the border areas between India and Pakistan due to heightened tension and increased troop movements… Australians should also avoid travel to Jammu and Kashmir. There continue to be serious security problems in Srinagar, elsewhere in the Kashmir valley, and in other parts of the state. Armed clashes and bombings occur frequently.”
Notwithstanding, the Australian government is attempting to return to India a Kashmiri national who has been targeted by the security forces there for presumed links with militant groups. It continues to reject his claim to asylum partially on the grounds that “¡§given the reported improvement in circumstances in the region… the mere fact that the Applicant may have been a JKLF member in the past is not indicative that he will be detained in the future” (Tribunal findings).
Since July 2000 to the present, repeated efforts by Mr Khan’s lawyer to obtain copies of documents from the Department relating to his intended removal from Australia have been met with stone-walling and excuses. His lawyer reports that, “We have been continually frustrated in our attempts to gain access to the documents held by [the Department] in relation to this matter.”
On 7 February 2002 the Minister was reported as saying that he had a ‘last resort’ for the 19 asylum seekers who have been held in Australian detention centres for over three years, one of whom is Mr Khan. He declined to give details, however concern is mounting among advocates for Mr Khan and the other asylum seekers that their removal is imminent.
Mr Khan is convinced that if he is deported to India he will be detained without trial under the National Security Act (1980) for alleged anti-government activities. In light of the heightened global and regional security environment since September 11, and given the possibility that he would be suspected of an association with the Lashker-e-Toibea, he has particular cause for alarm.
Clearly, Mr Khan has a well-founded fear of being persecuted, in keeping with the Convention relating to the Status of Refugees [article 1A(2)]. Any attempt at repatriation to India may constitute an act of refoulement in violation of article 33(1) of that Convention and and article 3(1) of the Convention against Torture. His lawyer concludes:
“We have provided evidence to the Minister that if Mr Khan is returned… it is likely that he will be detained without trial and subjected to torture and beatings. The potential outcomes clearly demonstrate that Mr Khan’s rights under both the [Convention against Torture] and the [International Covenant on Civil and Political Rights] will be violated and will bring into consideration Australia’s obligations under both conventions.”
In 2001, two Urgent Appeals and one Update were released concerning asylum seekers arriving to Australia:
UA-17-2001: AUSTRALIA: The denial of the right to asylum and inhumane treatment
UP-08-2001: UPDATE : Asylum seekers have accused government of hiding the truth; hunger strike continues
UA-31-2001: AUSTRALIA: A refugee crisis – The denial of the right to asylum
The Asian Legal Resource Centre has also presented a written submission to the 2002 UN Human Rights Commission’s hearings in Geneva:
“Mandatory detention and denial of the right to seek asylum in Australia”
Further information on the situation in Kashmir is available at AHRC’s Kashmir Human Rights Site, www.kashmir-hr.net . See also the Kashmir Record and Research Council, www.krrc.org , and www.kanger.net for further links.