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UPDATE (AUSTRALIA): No response from Minister on asylum case

March 19, 2002



20 March 2002
UP-19-2002 (RE: UA-09-2002: 'Last resort' for asylum seeker, Stephen Khan)

UPDATE (AUSTRALIA): No response from Minister on asylum case

Dear Friends,

On 26 February 2002, AHRC issued an urgent appeal drawing attention to the case of Stephen Khan, a Kashmiri asylum seeker who has been in detention in Australia since 1998. At the time the Asian Legal Resource Centre (ALRC) also wrote directly to the Minister of Immigration and Multicultural Affairs, Philip Ruddock (in whose hands solely Mr. Khan's case now rests) requesting that Mr Khan be granted a visa without further delay. Regrettably, the Minister has to date not sent a reply.

Yesterday, 19 March 2002, ALRC has sent a second letter to the Minister, and additionally a first letter regarding the case to Professor Ruud Lubbers, the UN High Commissioner for Refugees. Additionally, ALRC has prepared a statement on Mr. Khan's case that will be presented to the UN Commission for Human Rights annual hearings in Geneva this April. Interested persons may also find ALRC's written submission to the Commission on Australia's refugee policy online at either of the following places:
a) ALRC website -- http://www.alrc.net/mainfile.php/58written/60/
b) UNHCHR website (original document) -http://www.unhchr.ch/Huridocda/Huridoca.nsf/(Symbol)/E.CN.4.2002.NGO.70.En?Opendocument

In the interest of transparency and for the benefit of our readers, we now publish a copy of the original letter sent to the Minister of Immigration. We again urge our readers to write letters on Mr. Khan's case directly to the Minister.



25 February 2002

The Hon Philip Ruddock, MP
Minister for Immigration and Multicultural Affairs
Suite MF 40, Parliament House
Canberra ACT 2600
FAX: +61 2 6273 4144

Dear Honourable Minister,

RE: Case of Mr. Stephen Khan

The case of Mr. Stephen Khan, a Kashmiri national, has been brought to our attention by persons in Australia concerned for his protection and safety.

As you are aware, your Department has detained Mr. Khan since 9 September 1998. His case has been in your hands personally since he failed to appeal to the Federal Court within 28 days of the Refugee Review Tribunal's adverse decision on 11 January 1999, for want of advice to that effect.

Mr. Khan's lawyer has observed that since the Tribunal's decision you have been provided with ample evidence to indicate that if repatriated to India, Mr. Khan is likely to be detained without charge and tortured. As an organization focused on human rights in Asia we are regularly informed of the appalling conditions in Kashmir. We are also deeply engaged in work on legal reforms throughout India, and are well aware of the extent to which the police and security forces there are capable of operating with impunity across the entire country.

Having reviewed all the available evidence on Mr. Khan's case and in light of our own enquiries we are inclined to agree with his lawyer's assessment. We are particularly concerned that any attempt to remove Mr. Khan to India would constitute an act of 'refoulement' in violation of article 33(1) of the 1951 Convention relating to the Status of Refugees and article 3(1) of the 1987 Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

We urge you to extend a protection visa to Mr. Khan under section 417 of the Migration Act at once. Please be aware that we are prepared to raise Mr. Khan's case at the UN Commission for Human Rights annual hearings in Geneva this April. May we also take this opportunity to inform you that we have already expressed our concerns regarding Australia's policies on mandatory detention and asylum to the Commission (Written submission E/CN.4/2002/NGO/70).

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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.