For original, full text visit: http://unhcr.org.au/unhcr/images/2012-12-14%20nauru%20monitoring%20report%20final.pdf

“UNHCR Mission to the Republic of Nauru
3-5 December 2012
Report…

“…Despite the establishment by the Government of Nauru of a legal framework for processing asylum claims, a great deal of preparatory work needs to be done before it can be concluded that a functional, fair and effective system for refugee status determination is in place.

…[F]urther information needs to be provided to asylum-seekers as to when, how and by whom proper and substantive decisions of refugee claims will be made, including appeal and review rights, and rights to legal advice and representation.

Delays in commencement of substantive processing arrangements for asylum seekers may be inconsistent with the primary and, arguably, sole purpose of transfer to a “Regional Processing Centre”, namely, to undertake refugee processing in a fair, humane, expeditious and timely way.

The insertion of the ‘no advantage’ concept as a basis for delaying or postponing the proper and timely assessment of refugee claims is not appropriate and is inconsistent with both States’ responsibilities under the Refugee Convention to accord refugees with the full protection of rights set out in the Convention.

It is apparent that a number of transferees are suffering the effects of preexisting trauma and torture. The capacity of current health providers to deal with these issues on Nauru is limited…

The current uncertainty about responsibilities for different aspects of processing and ongoing delays in the commencement of such processing are likely, together, to have a significant and detrimental impact on the mental and physical health of asylum-seekers transferred from Australia to Nauru over time. Unless these issues are addressed without delay, this impact is likely to be exacerbated by the currently unsatisfactory reception conditions within the detention settings of the Processing Centre on Nauru…

Freedom of movement in line with international law must be provided…

The legal framework, rules and procedures for processing of transferees’ substantive claims for international protection should be completed as a matter of urgency. Substantive assessments, with appropriate legal advice and representation, should be commenced without delay by suitably qualified, experienced and appropriately resourced officials…

The pre-transfer assessments conducted in Australia need to be reviewed to ensure that they fully take into account the vulnerabilities of individuals who may have suffered torture or trauma and include a realistic assessment of the quality of support and capacities of service providers on Nauru…

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1. UNHCR undertook a mission to Nauru on 3-5 December 2012 pursuant to its monitoring and advisory role under Article 35 of the 1951 Refugee Convention, to which both Australia and Nauru are parties…

Findings

…UNHCR has been particularly concerned that transfers of asylum-seekers from Australia to Nauru took place well before proper reception conditions and refugee status determination (RSD) procedures had been established…

Furthermore, Nauru has assumed fewer human rights treaty obligations than Australia, including in relation to broader human rights considerations and statelessness… At the time of the visit, these human rights safeguards had not been incorporated into Nauruan legislation…

There is also considerable ambiguity about operational aspects of the arrangements between the parties, especially in respect of: (i) the interpretation and application of the so-called ‘no advantage principle’ (a notion with which UNHCR has consistently expressed deep reservations, because it is not an appropriate comparator, is inherently difficult to quantify, and could amount to a penalty in violation of Article 31 of the 1951 Refugee Convention); (ii) entitlement to Convention and other rights; and, (iii) responsibility for the provision of permanent solutions within as short a time as is reasonably necessary…

During meetings with asylum-seekers, they generally expressed a degree of confusion about who would undertake their processing, who would be responsible for their protection if they were found to be refugees, and how long it would take for them to restart their lives… Several asylum-seekers noted that they had not received much information from officials or service providers, or that they did not understand the advice they had received. Others said they had been told they had to wait five years before a durable solution was found for them. Several asylum-seekers wished to know who would assess their claims for protection, and who would be responsible for finding a solution for them. Others described the lack of clarity as ‘cruel’…

Arrangements at the RPC are also confusing in that primary contact of the asylum-seekers has been through organizations contracted by DIAC to provide services, and those service providers have not been able to answer the asylum-seekers’ questions…

UNHCR further considers it a matter of urgency to provide comprehensive information in writing to asylum-seekers setting out the procedures which will be followed to assess their claims for refugee status, on what basis, by whom and indicative time frames for these procedural steps… Information should include advice about the rights established under Nauruan law for asylum-seekers, including to natural justice and review of negative decisions; the ability of asylum-seekers to receive legal and other assistance with claims; and, the likely outcomes following decision making.

… [I]t should also be made clear to asylum-seekers that the Government of Australia has responsibility for ensuring a durable solution for those found to be refugees, as set out in the Memorandum of Understanding and in accordance with Australia’s international obligations to the asylum seekers.

…[T]he ‘no advantage’ concept is an inappropriate benchmark against which both States Convention responsibilities are measured.

…[A]sylum-seekers should be assured that if they are found to be refugees, the Governments of Australia and Nauru will make all efforts to provide a durable solution to their plight as soon as is possible. In the meantime, all refugees are entitled to the full range of rights to which they are entitled under the Refugee Convention.

…The RPC is located at the ‘Topside’ of Nauru (the central plateau of phosphate deposits which rises 70m above sea level). The asylum-seekers are currently housed in large and small tents, with the larger ones holding up to 16 asylum seekers and the smaller up to 5, in a small confined space. Construction is under way to provide better accommodation, which will be ‘rolled out’ from 20 January 2013, with the intention of having all asylum-seekers out of tents by early February. In the meantime, the construction of the new accommodation as well as the heat and isolation of the Centre provide for a very inhospitable environment for the asylum-seekers, with little privacy…

Approval to enter the RPC appears to be controlled by DIAC, and not the Government of Nauru…

UNHCR’s Legal Protection Team noted that the conditions at the closed and congested detention centre are harsh, with little natural shelter from the heat during the day, which is exacerbated by all the challenges arising from residing in a construction zone, including significant noise and dust.

…Notwithstanding the fact that the asylum-seekers themselves, with some exceptions, expressed less concern with the conditions at the RPC than with the delays and uncertainty about the processing, UNHCR is concerned that the continued delays within a protracted detention situation, in difficult conditions, and against the background of no clear legal process or accountability, will continue to lead to significant and long-term psycho-social harm…

UNHCR considers as a matter of urgency that asylum-seekers are provided with adequate conditions of accommodation in line with international standards and are granted freedom of movement…

While the Government of Nauru has enacted enabling legislation and regulations… the current situation is that there are: (i) no asylum procedures in place; (ii) no experienced refugee status determination decision makers in the Government of Nauru; no pool of persons identified to do the independent reviews on the tribunal envisaged by the recently enacted Refugees Convention Act 2012; and (iv) no substantive assessments of refugee claims have begun, apart from preliminary data collection…

UNHCR… remains deeply concerned about the continued uncertainty and delays in establishment of Nauru’s RSD procedures, and its deleterious impact on the mental and physical health of refugees and asylum seekers if this is not addressed very promptly…

UNHCR is particularly concerned that some asylum-seekers who may be bona fide refugees might contemplate a return to a country of origin as a result of the uncertainty around processes in Nauru, and the prospect of lengthy delays in accessing a permanent solution, in onerous detention conditions. This may be particularly prevalent where asylum-seekers are reduced to a psycho-social state of hopelessness and despondency. UNHCR considers it essential that any returns are fully informed and consensual, and not prompted by uncertainty and protracted detention…

UNHCR attended one transferee interview during the visit and is concerned that refugees and asylum-seekers receive inadequate information on the RSD procedures and are confused as to whether the Government of Australia or Nauru has ultimate responsibility for assessing their claims to international protection and seeking permanent solutions…

… constant and excessive noise associated with the construction of the permanent facility…

UNHCR has raised serious concerns about these expedited removals with the Government of Australia and assured asylum-seekers that both Australia and Nauru have obligations not to return any person claiming protection without providing access to a fair process for assessing their claims, with appropriate legal safeguards, including a personal interview by a fully qualified official and access to review of a negative decision; access to legal advice; access to UNHCR; and particular attention to certain vulnerable asylum-seekers, including for unaccompanied and/or separated children.

The Government of Nauru is not currently present at the RPC and has no direct involvement in the scheduling, notification and/or interviewing of the transferees…

UNHCR urges the Governments of Australia and Nauru to proceed with urgency to put in place a full refugee status determination procedure. In the meantime, it is highly unsatisfactory that asylum-seekers are being held in detention-like conditions with little or no prospect of prompt and expeditious assessment of their refugee claims…

Mental and Physical Health

…In meeting with the asylum-seekers, many of them raised concerns about the perceived unfairness and discrimination by which approximately 8,000 asylum seekers who had arrived by boat to Australia after 13 August were eligible to be released into the community on Bridging Visas while they had been transferred to Nauru and were being held in closed detention… According to medical staff, the sense of injustice, along with the hot and crowded detention conditions, a sense of isolation and abandonment, and a lack of information about their processing and future prospects, has led to widespread depression, instances of self-harm and several attempted suicides.

…IHMS staff described a steady and rapid incidence in mental health diagnoses at the RPC, self-harm, including hanging attempts, with more than 10 new referrals each day and an additional 20 refugees requiring daily support and follow-up. At the time of the visit there were approximately 40 asylum-seekers on hunger strike to draw attention to their situation…

There are limited facilities in Nauru to manage medical health issues. The IHMS medical clinic…provides treatment relating to dispensing minor drugs (paracetamol), muscular pain, dental, dehydration, individual counselling, and self-harm (cigarette burns, cuttings and hangings). However, if required, the clinic only has the capacity to complete resuscitation and stabilization until the patient is transferred by standby ambulance to the Nauru Hospital and/or medically evacuated…

Post-transfer mental health screening by IHMS continues to identify mental health cases and survivors of torture and/or trauma. This raises concerns about the reliability and comprehensiveness of Australia’s pre-transfer assessments. UNHCR has reviewed a sample of Pre-Transfer Assessments of asylum seekers transferred from Australia to Nauru, and is concerned by the rigid proforma template which appears to restrict the scope of questioning and limit the assessment to a record of comments rather than any analysis of needs. The Pre-Transfer Assessment Forms contain no evidence of the interview, or any external information which purports to inform the assessment (such as the IHMS health assessment)… the sample reveals that the Assessment Forms do not contain any substantive analysis of the factors affecting the reasonable practicability of transfer to the RPC, notably the physical and mental characteristics (physical or mental health of the persons, special needs identified, fitness to travel, and other vulnerabilities) or logistical considerations (resources and facilities available in the RPC to accommodate the needs of the person and physical capacity to accommodate the person)…

UNHCR is concerned that potential survivors of torture and trauma may not be identified until after transfer, at which point the quality and availability of support services is significantly diminished…

A few asylum-seekers raised issues around access to internet, with one noting he only had half an hour’s access every two days. Staff indicated that the limited access was a result of the limited services available on Nauru, but that they were conscious of the desirability of greater access…

UNHCR Regional Representation
Canberra, 14 December 2012″

 

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