Legal Framework and Role of UNHCR to RSD
There are several factors that result in refugees and asylum seekers being denied effective protection in Indonesia. These factors include lack of legal protection, long waiting periods for permanent resettlement, limited basic livelihood support (housing, healthcare, education, and work rights) and inhumane conditions in detention centres.
Despite the significant risks arising from travelling in people smugglers’ boats to Australia, the circumstances facing refugees and asylum seekers in Indonesia often lead people to make a dangerous decision.
Since 2011, government of Indonesia is in favor to develop Presidential Regulation on Handling Refugee and Asylum Seeker or Peraturan Presiden (Perpres) tentang Penanganan Orang Asing Pencari Suaka dan Pengungsi. According to the Ministry of Foreign Affairs in early 2015, the Perpres will be attached with the Integrated Fixed Procedure, or Prosedur Tetap Terpadu, on Handling Refugee and Asylum Seeker. But, up until now, the Perpres is not yet adopted.
Lack of Adequate Legal Protections in Indonesia
The nature of Indonesia’s domestic legal framework relating to asylum seekers and refugees means that refugees, asylum seekers and stateless people are treated as illegal immigrants, and are subject to detention and might legally become subject to deportation.
This leads to a dangerous situation where staying in Indonesia involves a risk of being arrested and returned to the country in which they fear persecution (refoulement).
As Indonesia is not a signatory to the 1951 Refugee Convention, the government has allowed two international institutions to deal with asylum seekers:
- The Office of the United Nations High Commissioner for Refugees (UNHCR) oversees refugee status determination, resettlement, and repatriation.
- The International Organisation for Migration (IOM) is responsible for day-to-day assistance, including providing food, accommodation, and healthcare; asylum seekers and refugees remain IOM’s responsibility until they are resettled in a third country or voluntarily return home.
Both UNHCR Indonesia and IOM Indonesia are seriously under-resourced and over-worked.
Refugee Status Determination
UNHCR is operating in Indonesia with the agreement of the Government of the Republic of Indonesia. The Indonesian Immigration Directorate General issued a Directive in 2010 (No: IMI-1489.UM.08.05) which states that persons seeking asylum or refugee status are to be referred to UNHCR for RSD and that “the status and presence of aliens holding Attestation Letters or identification cards issued by UNHCR as asylum seekers, refugees or persons of concern to UNHCR, must be respected”. Persons without those documents will be subject to detention, fines, and/or deportation.
UNHCR is operating in Indonesia with the permission of the Indonesian government but its capacity is severely limited due to significant increases in the number of asylum seekers requesting assistance in Indonesia. UNHCR has around 60 staff based in Indonesia.
Registered asylum seekers have their claims for refugee status recognition assessed by UNHCR in what is known as Refugee Status Determination (RSD) procedure. Asylum seekers are interviewed on the merits of their claims for protection by a RSD Officer, assisted by an interpreter. Where a claim for protection is rejected, the RSD procedure still provides for an opportunity to appeal the negative decision.
In general, legal assistance and advice is not provided, with many negative decisions resulting from asylum seekers not understanding the process they are subject to, often as a result of language barriers, fears of speaking to authorities, and not knowing their rights and responsibilities as applicants for refugee status.
The right to legal representation for asylum seekers and refugees is also not fully recognised by UNHCR and governments in practice. This compromises the integrity of the RSD process because asylum seekers are not fully aware of their rights and responsibilities, nor the process they are engaging in.
Research conducted by academics from Australia indicates that there are several legal aspects of protection needs for asylum seekers in Indonesia that should be addressed. A proposed solution is providing independent legal assistance because “most of the asylum seekers and refugees interviewed for the project seemed to have little understanding of the legal substance of their case or of UNHCR’s refugee status determination procedures in Indonesia” (Taylor and Rafferty-Brown, 2010).
For those found to be owed international protection, UNHCR tries to provide for one of three possible durable solutions:
- resettlement to a third country;
- voluntary repatriation; and
- local integration.
Local integration is not available as an option in Indonesia because the Indonesian government does not authorize recognized refugees to stay living in the country.
Until May 2015, 278 individuals departed Indonesia for resettlement in third countries, while 333 others is awaiting for their resettlement result from the countries. However, an additional 1,203 refugees remain waiting for submission or re-submission of their cases by UNHCR to third countries.