Thursday, 04 March 2010 15:05 Sebastian Strangio and Cheang Sokha of the Phnom Penh Post
LAST-MINUTE changes to a sub-decree regulating procedures for screening asylum seekers paved the way for the government’s forced deportation of 20 ethnic Uighur asylum seekers, violating their rights under local and international law, an Australian academic has asserted.
Writing in the Australian magazine Eureka Street on Wednesday, Frank Brennan, a professor of law at the Australian Catholic University’s Public Policy Institute, described the new sub-decree, passed two days before the Uighurs’ deportation on December 19, as a “sham”.
Cambodia “may be a signatory to the [1951 UN Refugee Convention], but to date that counts for nothing”, he wrote in the article.
Brennan says that a section of the Sub-decree on Procedures for Examination, Recognition, and Provision of Refugee or Asylum Status for Aliens in the Kingdom of Cambodia, was inserted as “a last-minute change” to the law.
The relevant section of the sub-decree, Article 5, states that “the recognition of a refugee, the termination of refugee status and the removal of refugee status shall be determined by the prakas (ministerial order) of the Interior Minister”.
A total of 22 Uighur asylum seekers arrived in Cambodia in November 2009 after fleeing ethnic violence in Urumqi, the capital of China’s restive Xinjiang province.
On December 19, two days after the passing of the sub-decree, the Uighurs were forced onto an unmarked charter flight to China, despite having been registered as “persons of concern” by the local office of the UN High Commissioner for Refugees.
Two escaped prior to the deportation and are currently unaccounted for. Cambodian officials say the remaining 20 were deported for breaching the country’s Law on Immigration, but many observers linked the deportation to the arrival the following day of Chinese Vice President Jinping, who proceeded to sign US$1.2 billion in economic aid agreements with the government.
Brennan said that the rushed passage of the sub-decree two days before the deportation was “simply a matter of political convenience” for the government, which feared embarrassing its Chinese ally.
“The prompt passage of the sub-decree after years of waiting was a political artifice for the exercise of unreviewable, arbitrary power,” he wrote.
Article 5 of the new sub-decree appears to give Interior Minister Sar Kheng the right to override its remaining provisions, which set out the process for determining the status of asylum seekers and allowing them to appeal decisions.
Article 10 states that in the event that an asylum seeker’s claim is rejected by the authorities, “reasons shall be given to the rejected applicant”.
It adds that rejected applicants may file appeals to the Department of Immigration within 30 days to have their cases reviewed.
All asylum seekers also have the right to be granted a temporary entry visa or other entry clearance to cover the length of the application process.
Taya Hunt, a legal officer at Jesuit Refugee Services (JRS) who represented the Uighur asylum seekers, said the group’s rights under Article 10 were ignored by the government in the days leading up to their deportation to China.
“They absolutely did not receive a decision about their asylum application in accordance with the recently passed sub-decree and UNHCR procedural guidelines,” she said.
“Even if they did receive a reason while they were in the bus on the way to the airport, they weren’t given an opportunity to appeal.”
Article 7 of the new law does give the Ministry of Interior the right to “immediately reject the application for refugee status” if the applicant does anything to “harm the national security or public order” or fails to cooperate in the processing of a case.
JRS Director Sister Denise Coughlan, however, denied that any of the Uighurs were involved in activities that could be interpreted in such a way.
“They didn’t cause any harm at all,” she said.
Coughlan said it was her understanding that the sub-decree underwent a last-minute revision, but she did not have any firm evidence of the changes.
The passage of the sub-decree on December 17 was the culmination of the transfer of asylum-seeker registration and screening duties from the UNHCR to the Cambodian government.
At the time, Sara Colm, a researcher for Human Rights Watch, said it was “astonishingly poor timing and a gross error in judgment” for UNHCR to hand control of refugee-processing to the Cambodian government at that particular juncture.
Kitty McKinsey, UNHCR’s Asia spokeswoman, said she did not wish to comment on the sub-decree’s creation or application, saying such questions should be forwarded to the Cambodian government.
“As for the lessons for the future, it is clear that only governments can provide protection for refugees,” she said.
“Despite the aberration of the deportation of the Uighurs, which we spoke out strongly against at the time, UNHCR needs to work with Cambodia to build its capacity to implement the responsibilities Cambodia took on when it signed the 1951 Refugee Convention.”
Sok Vichea, the director of the Refugee Office at the Ministry of Interior, denied that the Uighurs had been stripped of their rights.
“What the Cambodian government did with those 20 Uighur people was in compliance with the law,” he said on Wednesday. “You have to understand the difference in status between asylum seekers and refugees.”