Hazara people in Indonesian legal limbo
Hazara people from Afghanistan, Pakistan and Iran make up the majority of the estimated 5000 refugees and asylum seekers currently in Indonesia.
Many of these refugees head to the small town of Cisarua while they await the next leg of their journey to Australia. Some stay a few weeks before boarding a boat bound for Christmas Island, while others wait in the hope they will be accepted for resettlement in Australia. This can take many years.
For many Hazaras, Indonesia becomes a place of limbo. They can't go back due to ongoing persecution, they can't go forward to Australia, and the country they're waiting in views them as illegal immigrants.
So, what lies ahead for Hazara people hoping to find a way from Indonesia to Australia?
Damien Carrick: Hello and welcome to the Law Report. There has been a yet another tragedy on the treacherous seas between Indonesia and Christmas Island. Yesterday two Afghan asylum seekers drowned and two more were seriously injured when their boat was hit by freak waves. Of course for years now Australian governments have been trying to discourage asylum seekers from making the dangerous boat journey from Indonesia to our northern shores. But what are conditions like for asylum seekers waiting on the other side of the sea? What drives them to place their trust in people smugglers and their rickety boats? And if they do choose to stay in Indonesia, what prospects to they have of being legally resettled in Australia?
Jessie Taylor: We've been sitting on a base of about 35 to 50 people a year being resettled from Indonesia. Last year there were 180. So the queue, if you want to use that terminology, that people are standing in is decades and decades and decades long.
Damien Carrick: That's barrister and refugee advocate Jessie Taylor. Currently there are about 5,000 refugees and asylum seekers registered with UNHCR in Indonesia, but registration doesn't always mean that asylum seekers have a clear set of legal rights and a realistic chance of resettlement. In this special report, journalist Andrew Dodd travels to Indonesia where he finds asylum seekers living in a state of legal limbo.
Andrew Dodd: About three hours drive south of Jakarta is the small town of Cisarua. It's a beautiful place in the hills outside the city of Bogor. This is where asylum seekers come to stay for a while on their journey to Australia. Some stay a few weeks before boarding a boat bound for Christmas Island. Others wait many years in the hope of being accepted for resettlement in Australia.
Man: Four months.
Andrew Dodd: You've been here for four months.
Man: I'm from Iraq.
Man: Iraq. He is Hazara.
Andrew Dodd: Ethnic Hazaras from Afghanistan, Pakistan and Iran make up the majority of the estimated 5,000 refugees and asylum seekers currently living in Indonesia. Muhammed Musa, who has been living in Cisarua for several months is like many of them. He's stuck in a limbo state. He can't go back to Afghanistan, he can't go forward to Australia, and Indonesia, where he is forced to stay, views him as an illegal immigrant.
Muhammed Musa: I am Muhammed Musa. My father's name is Nawroz Ali[?]. I am from Ghazni, Afghanistan. I am here since four months, and we have the problem of our identity and our religion. We are Shia and Muslims, Shia Muslim, and we are Hazara, because of this we have the problem since the 17th century until now, and genocide from the Pashtun government in Afghanistan.
Now we have the problem in Afghanistan too, since 10 years the democracy of Karzai, we have no right in Afghanistan, we have no facilities like the other people of Afghanistan, we are not safe in our places. If we want to go to Ghazni from Jaghori and the way is not safe for us. Talibans kidnap us, they kill the Hazaras. That's why we came here and want to go to Australia, to save our lives. And we have the right to be alive and a better life.
Andrew Dodd: How many Hazaras are there in Cisarua? And how do you all live together?
Muhammed Musa: I have no any exact figure, but maybe there is 500 or 600 Hazaras in Cisarua. I don't know the other site, the other places, but in Cisarua maybe 500 or 600 Hazaras. We live in one villa, in one house, maybe 15 people, eight people, 10 people, and we have a problem of money here, not a lot of money for spending for the room. And the Indonesian people too, they create problems for us there. Because of this we are very, very hard problems here until we reach Australia.
Andrew Dodd: Asylum seekers like Muhammed Musa have to make a very difficult choice when they get to Indonesia. On the one hand they can go through the official channel by applying for refugee status with the United Nations High Commissioner for Refugees. If they do they know they'll have to wait several years before there is any hope of resettlement in Australia. Or on the other hand they can take the unofficial route, by engaging a people smuggler. They know that if they take this path the journey will be both expensive and dangerous and will most likely end in a mandatory detention on Nauru or Christmas Island.
According to Melbourne barrister and refugee advocate Jessie Taylor, very few asylum seekers arrive in Indonesia with the plan to travel onwards with a people smuggler. This was one of the findings of a study she conducted into the plight of refugees in Indonesia.
Jessie Taylor: The major findings from the research that I've done in Indonesia related mainly to the fact that people don't come to Indonesia with a view to getting on a boat, they go there with the hope of doing half a dozen other things before finally landing themselves in a position when they might get on a boat.
They go there to engage in the UNHCR process, to be registered and processed as refugees, and to be recommended for resettlement by UNHCR. And the thing that surprised me the most in the course of that research was that fact, that people were not coming there generally with a view to getting on a boat, they were coming with a view to doing anything but, because none of them want to get on a boat, it was the last resort for them.
Andrew Dodd: But all of them were coming to Indonesia with a mind to going to Australia.
Jessie Taylor: Yes, people who had made it to Indonesia were hoping to make it to Australia. The vast majority were hoping to make it by what even they call 'the front door' or 'the good way'. There is definitely this sense that people who come by boat are doing something irregular or something wrong, and I think that's really interesting, the fact that they are not presented with any other realistic option but getting on a boat, but they still translate that, even for themselves, as being morally not the thing they'd prefer to be doing.
Andrew Dodd: The thing that struck me in Indonesia is that people have a choice when they arrive, whether to go through the UNHCR process and invest heavily in that process or whether to think of another means, by going through an irregular boat journey. What's going on in people's mind when they make that choice? Do people go one way and then turn to another? What happens?
Jessie Taylor: I think it's mainly about word of mouth. The first few days that you arrive in Indonesia it's obviously about trying to find if there are other members of your community or your ethnicity that there, then you will link in with them and you'll get the lay of the land pretty quickly. Obviously it depends who you talk to. If you've spoken to people who have been registered with UNHCR, provided accommodation through the UNHCR and IOM and have been found to be refugees and are on their way to a resettlement pathway, which is very rare but there are a few, obviously that will be a different story than if you meet, for example, a man whom we met who had been waiting for nine years to go through that pathway.
So if you meet someone who's had a really positive experience with the UNHCR, perhaps you'll choose that path, and if you've met someone who's had a less positive experience, perhaps you'll consider another pathway. I think it depends as well whether you have children, elderly family members, you're more likely to get living support if you are registered, but a lot of the young single men in particular choose the route of staying out of the way of authorities and staying more underground.
Andrew Dodd: Regardless of whether asylum seekers take the official or the unofficial route, they are given much the same status under Indonesian law. Febiionesta is the director of the Legal Aid Institute in Jakarta. Since 2010 he's been representing asylum seekers in the Indonesian courts. He says the major problem is that the relevant laws in Indonesia are severely lacking.
Febiionesta: In Indonesian context, unfortunately asylum seekers and refugees are not legally protected. So the only law or legal instrument to mention about asylum seekers and refugees is in the law of foreign relations. But the thing is that even though the law has mandated that there will be government regulations concerning asylum seekers and refugees, but up until now the same government regulation has never been passed.
Andrew Dodd: I you saying that there are laws that people are proposing but they just haven't yet passed through the Indonesian parliament?
Febiionesta: It is mandated to the Indonesian government executives. So it is in the government hands, and then the executives, the President himself who should pass the regulation. The regulation should be in the form of residency or regulation.
Andrew Dodd: What does that mean in reality then? What sort of rights do people have who are travelling through Indonesia as either asylum seekers or refugees?
Febiionesta: Most of asylum seekers and refugees will be regarded as illegal immigrants under the immigration law, therefore they will be treated as the illegal immigrant of course, which the government immigration authority will treat them, and most of the time they will be detained in the immigration detention centre awaiting deportation. But fortunately the Indonesian immigration authority passed the immigration directorate regulation that says to any illegal immigrants who claims of seeking asylum, the immigration authority will refer them to UNHCR and all accommodation that they need to be supported will be supported by the International Organisation for Migration.
Andrew Dodd: So in other words there is some protection to people who claim asylum seeker status or refugee status.
Febiionesta: Yes, but the level of the legal instrument is not legally binding, it's more like discretionary. The government or the immigration authority…discretionary. And the government is not really bound to the immigration directorate regulation. It's all up to them whether or not the asylum seeker or refugee will be treated differently compared to the other illegal immigrants.
Andrew Dodd: When the law is so ill-defined there is enormous scope for interpretation, meaning that some asylum seekers are free to live in the community while others get locked up in either immigration detention centres or jails. Jessie Taylor:
Jessie Taylor: Indonesia is not a signatory to the Refugees Convention, and what that means is that they have no interest whatsoever in affording any rights or legal status to asylum seekers or refugees. The standing legally in Indonesia seems to be evolving. There is a tradition in Islam that Muslims will welcome other Muslim refugees, and that has certainly done some work over the last few years in Indonesia.
However, as the numbers increase and as Australia is trying to stop people from leaving Indonesia there is a build-up happening and it's draining resources from Indonesia, it's filling up their jails and prisons, and I think they are really stretching the friendship. The long and short of it is that asylum seekers and refugees in Indonesia are, for all intents and purposes, illegal immigrants in Indonesia. And they are treated as such and they are detained and they are imprisoned. Indonesia doesn't make any bones about that I don't think.
Andrew Dodd: But it also seems to be very hit and miss. We met lots of people who are outside detention, have no legal standing, may have a UNHCR certificate, may not, and are free to walk the streets, free to live fairly happily in places like Cisarua. But you hear of many other stories of people who are locked up arbitrarily, so it's very arbitrary.
Jessie Taylor: I think that's the major problem with it, there's just no consistency. Even if you are detained, if you are two people standing side by side on a street and picked up by police, one of you may be detained in a not too bad open detention facility and the other one might be in a very high security prison where you don't get to see the sky for six months. The fact that there is no process for dealing with asylum seekers and refugees who are picked up off the street by Indonesian authorities is of great concern I think.
Andrew Dodd: While some asylum seekers manage to escape the attention of the Indonesian Immigration Department, others it seems are just unlucky.
In Cisarua I met several people who had been locked up in detention centres without charge, some for many months. This asylum seeker, who wishes to remain anonymous, was captured by the police and imprisoned in the Sumatran city of Medan. He's speaking here with some help from an interpreter.
Man: My room was in jail and it was a very, very bad and no good for living. We have one room, 24 hours every day, we are locked in the room. When I was in the jail and sometimes the environment of bathroom is very, very awful and bad, and no good, not clean.
Andrew Dodd: How long were you in the jail?
Man: 29 months.
Andrew Dodd: 29 months?
Man: Yes, yes.
Andrew Dodd: But you escaped?
Man: Yes, I escaped.
Andrew Dodd: How long ago did you escape?
Man: I escaped about two months ago.
Andrew Dodd: How did you escape?
Man: By windows, we cut the metal of windows and we escaped from the window.
Andrew Dodd: And you made your way here to Cisarua.
Andrew Dodd: Many of the asylum seekers who are locked up inside the Indonesian detention system miss out on the basic legal rights. Febiionesta of the Legal Aid Institute says his clients often go without legal representation.
Febiionesta: Our experience as lawyers, we try to access our clients in detention centres, we were refused by the head of the detention centres. They argue that we should have permission from the central government. It is so ridiculous. Lawyers under the admission advocate law has authority to access their client any time they want.
Andrew Dodd: Is it true that inside the detention centres refugees are being held without charge? So in other words, they don't know what offences they are facing?
Febiionesta: Yes, that's definitely true. There is also a question that I raised directly to the immigration authority when we discuss about the problem of detentions and also the access for legal counsel and the unclear due process of law for asylum seekers who are considered as breaching the immigration laws. Under the immigration law, any illegal entrants will be locked up. So it will be like a mandatory detention, without giving any opportunity for them to defend themselves in a fair trial. So that's why we from civil society propose for any due process of law for…especially for asylum seekers who will be considered as illegal immigrants, that they can defend themselves from any accusations aimed by the government against them.
Jessie Taylor (excerpt from film): We received a call from a man at the Pontianak Jail. He and about 100 others were on their fifth day of a hunger strike. They were hoping to get the attention of the UNHCR which, despite months of promises, still hadn't come to see them.
Andrew Dodd: Of Indonesia's many detention centres, the worst, according to Jessie Taylor, is the Pontianak Centre in West Kalimantan. It's one of many she visited for her recently released film, Between the Devil and the Deep Blue Sea.
Jessie Taylor: Out of all that I saw, the Pontianak Jail was the worst. It was a concrete cell with steel bars along one side of it. It was about the size of a tennis court, it was a huge cell with dozens and dozens of men cheek-by-jowl in there, mainly Afghans. There was also a little house on the same property as the jail which was…my memory of it is that it has virtually no doors and no walls, it's sort of a roof on struts, and that's where two young mothers were with their children while their husbands were in the cell with all the men.
And there were a number of people who were accused of criminal offences who were detained at that jail as well but they weren't actually in the cell, they were wandering free in the grounds of the prison. And one of the young mothers came up to me and said that she was just horrified at the fact that she had noticed a few times her four-year-old daughter going missing for hours on end and coming back with evidence of sexual assault, and there was just nothing she felt like she could do about that, no authority she could take it to, no complaint she could make. And as my camera guy and I left that jail, we saw this little girl sitting on the dusty dirt yard in this prison playing with a motorcycle engine as her only toy, a little girl playing with this grimy, disgusting, sharp engine. That was a pretty grim place.
Andrew Dodd: But in the legal lottery that is Indonesia's immigration law, other asylum seekers do manage to find decent accommodation. One woman who wished to remain anonymous told us she has been travelling to get to Australia since 2008 when her family left Iran for Malaysia. In 2011 she travelled by boat to Indonesia. Now she lives in one of the centres run by the International Organisation for Migration, the IOM. As she explained, she already has refugee status, but even so, as the wait for resettlement drags on, it becomes more tempting to engage a people smuggler.
Woman: Actually, last year I'm thinking if I stay like Malaysia more than three years, if they don't want to help us, maybe they cannot do anything, I have to try to go by boat. That time I know is very dangerous, maybe have problems inside the boat, but I'm thinking how to go by boat in Australia.
Andrew Dodd: Have you known other people who have travelled by boat?
Woman: Yes, we helped many people, they try, and some people are lucky, they arrive in Australia, and then some people are not.
Andrew Dodd: Do you know people who passed away on the boat?
Woman: I know more a single man, a single man and a family also, but more a single man, and some family also, like children, like was three years old, four years old, they already passed away.
Andrew Dodd: You knew of these people, you knew them personally?
Woman: Yes, I know. When they arrive we can see on the internet, and also from immigration, they put pictures, and then we can see.
Andrew Dodd: What were the names of some of these people who passed away?
Woman: One girl is younger than me, her name was Taiba, one Afghan man, single also, Bassir, Rahmatulo, his name also, it is many, it's a lot, I cannot count how many.
Andrew Dodd: I'm asking because in Australia these people are just names, and often they are not even names, they are just a number, but you knew these people. What were they like, these people who have died at sea?
Woman: There was seven people in one family, they came to Indonesia, after that they go by boat, still now we don't have any news from them, if they have life or not. They said we haven't arrived in Australia what we want to they was very happy, they didn't think maybe we cannot arrive in Australia, but they said about the future we want to go to work and we want to go to school because their children were very young. And then another was the three children, they were talking very nice, we want to go to Australia, we want to play, and then we want to go to school and we want to learn English. They were always happy. We don't have any news from that family.
Andrew Dodd: Refugee advocates argue the current policies effectively drive people into the hands of the people smugglers. Jessie Taylor says that many people resort to boats because they can't see a pathway towards resettlement.
Jessie Taylor: I see it as sort of a series of tipping scales. People only leave their home when life is really unbearable there. So if the Taliban does away with a number of members of your family, that will be the moment that you choose to move on from there. You get to Indonesia, things are obviously a lot better than what's behind you, but slowly, slowly the conditions that you are living in in Indonesia will become untenable. Your family members might be imprisoned, someone might disappear, you will not be able to work, your kids won't be able to go to school, and slowly you realise that the process you hoped to go through here is not going to happen.
The statistics that I am aware of for the last few years in terms of resettlement from Indonesia are that we've been sitting on a base of about 35 to 50 people a year being resettled from Indonesia. Last year there were 180, and since 2008 we've had a one-off intake of 500. So the queue, if you want to use that terminology, that people are standing in is decades and decades and decades long.
If you tell them 'you'll be resettled in five years and we've negotiated with the Indonesian government so that you can work and send your kids the local school', people will wait those five years, guaranteed. Nobody wants to get on a boat. It is absolutely the last resort. What we must not do in Australia is punish people for getting on boats in the absence of having given them any other option, which is what we are doing at the moment. That's what the no advantage principle is. Sending people to Nauru and Manus is a punishment for a behaviour that they had no alternative to, and that I think is morally and logically unsound.
Muhammed Musa: If they are processed quickly, we sit here and want to go with the process of UNHCR. But the process is too slow, and because of this the people want to go with boats because there is the problem of too long process here, maybe three years, maybe four years. It's too long.
Andrew Dodd: Muhammed Musa.
If the immigration law in Indonesia is so lacking, what can be done? Febiionesta at Jakarta's Legal Aid Institute says that Indonesia really has no choice. It may not have signed the Refugee Convention, but nevertheless it has to create a legal framework so that the law governing asylum seekers becomes clear.
Febiionesta: Indonesia needs to have a really clear legal framework with legal binding powers that clearly regulate about asylum seekers and refugees as humans that need to also be protected. And second that Indonesia has to provide access to asylum seekers and refugees and in their waiting period for refugee status as well as resettlement, their access to human rights facilities such as education, health, work and also other human needs, therefore the asylum seekers and refugees will not easily get frustrated while they are in Indonesia waiting for refugee status and/or resettlement.
And of course the Indonesian government has to have some kind of policy because the government of Indonesia has to realise that asylum seekers and refugees are not criminals, and if they are charged for breaching any immigration law or any criminal provisions, asylum seekers and refugees are entitled for due process of law and a fair trial so that they can defend themselves and also not to forget that they have to have access for legal counsel. If those are fulfilled by the government, I think the conditions for asylum seekers and refugees will be more better here in Indonesia.
Damien Carrick: Febiionesta, the director of the Legal Aid Institute in Jakarta, ending that report by journalist Andrew Dodd.
A big thank you to producer James Pattison, and also to audio engineer this week Melissa May. I'm Damien Carrick, talk to you next week with more law.
- Muhammed Musa
- Hazara asylum seeker currently living in Indonesia
- Jessie Taylor
- Melbourne barrister and refugee advocate
- Director of the Legal Aid Institute in Jakarta
- Andrew Dodd