>From tnguyen Thu Jun 20 14:36:52 1991 remote from oasys.dt.navy.mil Received: from oasys.dt.navy.mil by rn31.smsc.sony.com with SMTP (SONY RISC V.4 smtpd); Thu, 20 Jun 91 14:36:52 PDT Received: by sonyusa.Sony.COM (4.0/SMI-4.0) id AA08662; Thu, 20 Jun 91 14:37:47 PDT Received: from Sun.COM by Sony.COM (5.65+/1.34) id AA11776; Thu, 20 Jun 91 14:37:00 -0700 Received: from EBay.Sun.COM (female.EBay.Sun.COM) by Sun.COM (4.1/SMI-4.1) id AA07512; Thu, 20 Jun 91 14:35:06 PDT Received: from trib.EBay.Sun.COM by EBay.Sun.COM (4.1/SMI-4.1) id AA10503; Thu, 20 Jun 91 14:33:08 PDT Received: by trib.EBay.Sun.COM (4.1/SMI-4.1) id AA12183; Thu, 20 Jun 91 14:38:41 PDT Return-Path: Message-Id: <9106201951.AA26468@oasys.dt.navy.mil> Date: 20 Jun 91 15:51 EDT From: tnguyen@oasys.dt.navy.mil (Thang Nguyen) Subject: [LAVAS] Summary of Refugee Law To: viet-net@cs.bu.edu Content-Type: text Content-Length: 18676 Status: R Dear netters: In the past few days I have observed some inquiries on the net about screening. In response, I repost the Summary of Refugee Law for your own use as reference. I would appreciate if someone volunteers to save this kind of material in some kind of archive accessible to other netters when they need it. I really do not have the time to repost the same information again and again. Thank you, Thang. SUMMARY OF REFUGEE LAW by Daniel Wolf A PUBLICATION OF THE LAVAS PROJECT BOAT PEOPLE S.O.S. MAY 1991 SUMMARY OF REFUGEE LAW Preface We believe that every asylum seeker has a fundamental right to know what the law is concerning the determination of who is and who is not a refugee before he or she is called upon to present his or her case to an immigration officer or other competent authority. Accordingly, we are providing for your benefit the following summary of refugee law. This summary is based on the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees. These are the most important international treaties concerning the treatment of refugees and their status. This summary is also largely based on the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status. This handbook was prepared by the UNHCR as a "practical guide" for the use of governments in making the determination of who is and who is not a refugee. It is our understanding that the Hong Kong Government has agreed to use the Handbook as a legal guide in its screening program for Vietnamese asylum seekers. We emphasize that this document only attempts to provide a basic summary of refugee law as that law has been interpreted by the UNHCR Handbook. It does not purport to be a comprehensive statement on the law concerning the determination of refugee status. Moreover, it is not clear to us whether the Hong Kong Government agrees with all of the provisions of the Handbook cited in this summary. We have noted in the summary the points of which we believe the application of the Handbook's provisions by the Hong Kong Government are particularly uncertain. Finally, we wish to emphasize that the following summary is no substitute whatsoever for competent legal counsel and advice. We will continue to fight for the recognition of the right to legal counsel for all asylum seekers. Summary of Law Under the Convention and Protocol Relating to the Status of Refugees, the term "refugee" applies to any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country." 1. The Reasons for Persecution It is very important to understand that under this definition not every person who suffered past or fears future "persecution" is considered a refugee. Instead, a refugee is defined as a person who fears persecution for a particular reason. There are five possible reasons: "race, religion, nationality, membership of a particular social group or political opinion." It is not necessary to establish that you were persecuted for all of these reasons. One is enough. It is also possible to establish that you were persecuted for a combination of these reasons. For example, you may have been persecuted both because of your religion and your political beliefs. Of course, if you establish a fear of persecution based on more than one reason, that fact should be taken into account in evaluating your claim. Finally, even if you were not persecuted when you left Vietnam, you may still be entitled to refugee status if you could show that owning to changed circumstances, you have good reason to fear present persecution upon your return. Persecution based on "reasons of race" essentially means persecution based on membership of a particular ethnic group. For instance, if you were persecuted because of your Chinese ethnicity or because of your Amerasian descent that would constitute persecution based on race. Persecution for "reasons of religion" essentially means persecution based on an individual's religious beliefs or activities. Persecution for "reasons of nationality" is a little more difficult to define. It includes persecution based on citizenship of another country, but also includes membership of an ethnic or linguistic group. Thus, it may occasionally overlap with persecution based on "reasons of race." Persecution based on "membership of a particular social group" is even more difficult to define. According to the UNHCR Handbook, a "particular social group normally comprises persons of similar background, habits or social status." The UNHCR Handbook goes on to state that "membership of such a particular social group may be at the root of persecution because there is no confidence in the group's loyalty to the Government." In a communist country such as Vietnam, it may be possible to establish a refugee claim if you can demonstrate that you were persecuted because you were regarded as being a member of the bourgeois or landholding class, or because your family members were involved in the military or civilian government of the former regime. The final reason for persecution which may qualify an individual for refugee status is persecution for reasons of political opinion. Thus, if you were persecuted on account of your political beliefs or activities you may be entitled to refugee status. In order to demonstrate persecution based on political opinion, it is not sufficient merely to show that you hold opinions which are not tolerated by the authorities or which are critical of their policies. You must show that your political opinions have come to the attention of the authorities or are likely to come to their attention, and face persecution for this reason. Finally, it is important to understand that an individual may be persecuted for reasons of political opinion even if he or she holds no political opinion of his or her own! This situation arises when the government attributes a political opinion to the individual. Persecution in cases of this kind is sometimes referred to as persecution based on "imputed political opinion." For instance, you may have no political opinion of your own, but the government may regard you as having "dangerous" political views because of your family's connections to the military or civilian government of the former regime. Alternatively, the government may regard you as a potential political enemy of the state because it considers your religion to be reactionary. Finally, the government may regard any number of activities in which you have engaged as political and may punish those activities as political crimes regardless of whether you actually had any political motivations of your own. In certain circumstances, such punishment may amount to persecution on account of imputed political opinion. 2. The Definition of Persecution In order to establish that you are a refugee, it is not enough to show only that you are a member of a particular race, religion or social group which is disliked by government authorities. Nor is it enough to show that the government considers you to have a political opinion critical of its policies and methods. You must also show that for these reasons (race, religion, nationality, membership in a particular social group or political opinion), you have a well-founded fear of being persecuted upon return to your home country. It is difficult to provide a precise meaning of what constitutes persecution. Nevertheless, it is safe to say that if you are forced to endure suffering significantly worse than that of the average person, or have good reason to fear such sufferings in the future based on one of the reasons specified above, you have been or will be persecuted. If government authorities subject an individual to prolonged imprisonment, torture or execution "on account of that person's race, religion, nationality, political opinion or a membership of a particular social group" that would always be persecution. Other violations of human rights may also amount to persecution depending on the individual circumstances and severity. Examples of such violations of human right might include the requirement to do forced labor or to relocate in an area away from your home. Of course, in every instance, the denial of human rights must be related to one of the reasons enumerated in the previous section of this summary. It is important at this point to draw a distinction between persecution and discrimination. With respect to this issue, paragraph 54 of the UNHCR Handbook states that: "Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favorable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn his livelihood, his right to practice his religion, or his access to normally available educational facilities." It should be emphasized that in order to demonstrate persecution based on measures of discrimination, the discrimination must be very severe. It is difficult to say in this connection how much discrimination-induced suffering is enough. But certainly you must show more than merely that your income was moderately reduced or you were unable to obtain the job of your choice. Also, it is important to note, as the UNHCR Handbook states, that "a claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type." In addition to restrictions on employment, religion or education, such discriminatory measures might include restrictions on freedom to travel, on your access to publicly available medical care and your right to privacy (perhaps resulting from police surveillance). According to the UNHCR Handbook, it is possible for an individual to establish entitlement to refugee status even if he cannot identify a single measure which would in itself constitute persecution. Instead, the Handbook looks to the "cumulative" effect of the different measures which may have been directed against an individual to determine whether or not he is a refugee. In the Handbook's own words: "An Applicant may have been subjected to various measures not in themselves amounting to persecution (e.g. discrimination in different forms) in some cases combined with other adverse factors...In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a well-founded fear of persecution on "cumulative grounds." (Handbook, paragraph 53) In addition to the distinction between persecution and discrimination, it is important to understand the distinction between persecution and prosecution. Persons fleeing prosecution or punishment for a common law offense (e.g. murder, rape, burglary, drug trafficking, etc.) are not normally refugees. As we are reminded by the UNHCR Handbook, "a refugee is a victim - or potential victim - of injustice, not a fugitive from justice." Yet, as the UNHCR Handbook also notes, the distinction between punishment and persecution may "occasionally be obscured." For instance, a person guilty of a common law offense may be punished excessively on account of his race, religion, nationality, membership in a particular social group or political opinion. It should also be emphasized that some governments may attempt to use their laws to punish individuals for attempting to assert their basic human rights (e.g. laws prohibiting certain forms of religious worship or prohibiting the distribution of political leaflets). Obviously, punishment for violation of such laws would support a persecution claim. Concerning the distinction between persecution and prosecution, there are two special cases of particular interest to the Vietnamese asylum seeker which need to be addressed. (a) Illegal Departure As you are aware, the Vietnamese government makes it a crime to attempt to leave the country and to organize an illegal departure. In this connection, paragraph 61 of the UNHCR Handbook states: "The legislation of certain states imposes severe penalties on nationals who depart from country in unlawful manner... Where there is reason to believe that a person, due to his illegal departure ... is liable to such severe penalties his recognition as a refugee will be justified if it can be shown that his motives for leaving or remaining outside the country are related to the reasons [of race, religion, nationality, membership of a particular social group or political opinion]." Thus, the UNHCR Handbook makes it clear that punishment for illegal departure can under certain circumstances amount to persecution. Nevertheless, it appears that the Hong Kong Government interprets this provision of the Handbook in a restrictive manner with reference to the Vietnamese boat people. Nevertheless, for our part, we believe that punishment for illegal departure would itself be sufficient to establish a refugee claim if two conditions are met. First, it must be shown that the country of origin punishes illegal departures in a severe and unfair manner. Second, it needs to be shown that the reason for such severe punishment is that the country of origin regards those who have fled to have committed a political act against the state. In such circumstances, we believe that punishment of illegal departure would constitute persecution on account of imputed political opinion. (b) Draft Evasion The second case of particular interest to the Vietnamese asylum seeker is punishment for evading the draft. Concerning draft evaders, paragraph 168 in the UNHCR Handbook provides in pertinent part: "A person is clearly not a refugee if his only reason for desertion or draft evasion is his dislike of military service or fear of combat." The Handbook further provides in paragraph 170 that: "There are, however, also cases where the necessity to perform military service may be the sole ground for a claim to refugee status, i.e. when a person can show that the performance of military service would have required his participation in military action contrary to his genuine political, religious or moral convictions, or to valid reasons of conscience." The above paragraph of the Handbook is limited to some extent by the very next paragraph. That paragraph states that: "Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to the basic rules of human conduct, punishment for desertion or draft evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution." We are uncertain about how the Hong Kong Government interprets the provision of the Handbook concerning draft evasion. Nevertheless, we have reason to believe that severe punishment for evading the draft for genuine reasons of conscience might be considered as an favorable factor (in combination with other factors) in the evaluation of your claim to refugee status. Conclusion In conclusion, in order to establish your entitlement to refugee status, it is not enough to show that you will have a difficult life if you return to Vietnam. Instead, you must show that if you are returned to Vietnam, you will face a degree of suffering which is significantly worse than that suffered by the average person in Vietnam. Moreover, you must show that the reason you will suffer worse than the average person is because of your race, religion, nationality, membership in a particular social group or political opinion. If it is determined that you fled Vietnam only as a result of the bad economic situation which exists in the country, you will be considered an "economic migrant" and will be screened-out. Paragraph 62 of the Handbook defines an economic migrant as a person who "voluntarily leaves his country in order to take up residence elsewhere" and who "is moved exclusively by economic considerations." You should be aware, however, that if your economic situation was made significantly worse than that of the average Vietnamese because of persecution you suffered on account of any of the reasons listed in this summary, you may well be considered a refugee. It is also important to note that even if you left Vietnam for political reasons, you may not be considered a refugee. Thus, if you left because you hated the communist regime under which you lived, but did not suffer any more than the average Vietnamese, you will not be considered a refugee. Remember that in order to establish your entitlement to refugee status, you must show that your suffering was somehow significantly worse than the suffering of the general population or that you have good reason to believe that it would be significantly worse if you were returned to Vietnam. We know that the law concerning the determination of refugee status is very complicated. We hope, however, that this summary will help you improve your understanding of that law and your situation. Please review this summary with care and help explain it to your friends, relatives and fellow asylum seekers. We encourage you to share this summary with those who do not have their own copy. ------- From trib.EBay.Sun.COM!viet-sf-request Wed Aug 7 14:01:04 1991 Return-Path: Received: by szebra.saigon.com (/\==/\ Smail3.1.21.1 #21.5) id ; Wed, 7 Aug 91 14:00 PDT Received: by sonyusa.Sony.COM (4.0/SMI-4.0) id AA28528; Wed, 7 Aug 91 13:29:05 PDT Received: from Sun.COM by Sony.COM (5.65+/1.34) id AA21046; Wed, 7 Aug 91 13:28:40 -0700 Received: from EBay.Sun.COM (female.EBay.Sun.COM) by Sun.COM (4.1/SMI-4.1) id AA20243; Wed, 7 Aug 91 13:28:50 PDT Received: from trib.EBay.Sun.COM by EBay.Sun.COM (4.1/SMI-4.1) id AA14072; Wed, 7 Aug 91 13:28:40 PDT Received: by trib.EBay.Sun.COM (4.1/SMI-4.1) id AA07365; Wed, 7 Aug 91 13:28:42 PDT Return-Path: Message-Id: <9108072003.AA27259@oasys.dt.navy.mil> Date: 7 Aug 91 16:03 EDT From: tnguyen@oasys.dt.navy.mil (Thang Nguyen) Subject: Summary of Refugee Law To: viet-net@media.mit.edu BA?N TO'M TA<'T LUA^.T TI. NA.N Di.ch la.i tu+` nguye^n ba?n tie^'ng Anh Summary of Refugee Law soa.n bo+?i lua^.t su+ Daniel Wolf. DA^~N NHA^.P Chu'ng to^i quan nie^.m ra<`ng mo.i ngu+o+`i xin ti. na.n (asylum seeker) -de`^u co' quye`^n -du+o+.c bie^'t ve`^ -di.nh nghi~a the^' na`o la` ti. na.n va` the^' na`o kho^ng la` ti. na.n theo lua^.t quo^'c te^' tru+o+'c khi tie^'p kie^'n vo+'i nha^n vie^n di da^n hay ca'c gio+'i chu+'c co' tha^?m quye`^n trong va^'n -de`^ thanh lo.c. Vi` the^', chu'ng to^i xin gu+?i -de^'n quy' vi. Ba?n To'm Ta<'t Lua^.t Ti. Na.n na`y. Ba?n to'm ta<'t na`y du+.a tre^n Co^ng U+o+'c 1951 va` Nghi. -Di.nh Thu+ 1967 Lie^n Quan -De^'n Tu+ Ca'ch Ti. Na.n. -Da^y la` nhu+~ng tho?a u+o+'c quo^'c te^' quan tro.ng nha^'t lie^n he^. -de^'n quy ca'ch -do^'i xu+? vo+'i ngu+o+`i ti. na.n va` -de^'n quy che^' ti. na.n cu?a ho.. Ba?n to'm ta<'t na`y cu~ng du+.a pha`^n lo+'n va`o Thu? ba?n cu?a Cao U?y Ti. Na.n Lie^n Hie^.p Quo^'c (UNHCR) ve`^ The^? Thu+'c va` Tie^u Chua^?n Quy -Di.nh Tu+ Ca'ch Ti. Na.n. Thu? Ba?n na`y do Cao Uy? soa.n -de^? du`ng la`m ta`i lie^.u hu+o+'ng da^~n cho ca'c chi'nh phu? tham du+. trong vie^.c quye^'t -di.nh ai -du+o+.c xem la` ti. na.n, ai kho^ng. Chu'ng to^i -du+o+.c bie^'t ra<`ng chi'nh phu? Ho`^ng Ko^ng -da~ u+ng thua^.n a'p du.ng Thu? Ba?n na`y nhu+ ta`i lie^.u chi? hu+o+'ng trong chu+o+ng tri`nh thanh lo.c thuye`^n nha^n Vie^.t Nam. Chu'ng to^i xin nha^'n ma.nh ra<`ng ta`i lie^.u na`y chi? cung ca^'p mo^.t ba?n to'm ta<'t ca