Refugee Status Determination: Rohingya Crisis

By Shucheesmita Simonti

Photo Credit: The New York Times

Abject poverty, political instability, torture, and other abuses push thousands across our border. There is not a deterrent imaginable that equals the conditions that force their migration. Greg Boyle

What are the challenges to implementation of non-refoulement in case of boat people?

One of the major challenges in implementing the principle of non-refoulement in case of irregular maritime migration in South-East Asia has been the identity of the people stranded in the boat. Another challenges is the process of prima facie. 

The identity of boat people: Rohingya's or Bangladeshi's? 

Of some 62,000 irregular departures from the Bay of Bengal in 2014, 58,000 are estimated to have departed from the Bangladesh-Myanmar maritime border, a 12 per cent increase over 2013, and nearly triple the number of departures estimated in 2012. 

Approximately 130,000 people have departed irregularly by sea from this border area since January 2012. At least 4,000 people also embarked from the Sittwe area in Myanmar in 2014. Irregular maritime departures from the Bangladesh-Myanmar maritime border most frequently embarked from Teknaf, Bangladesh, and from Maungdaw, Myanmar. Many people who ultimately embarked from Teknaf had travelled there from Myanmar either over land or by crossing the Naf river. 

According to UNHCR, 40-60% of these people are Bangladeshis while the rest are Rohingyas (Persons of Concern to UNHCR) and point of embarkation of the latter group can be Cox‘s Bazar of Bangladesh or Myanmar. As a result, the states may breach the principle of non-refoulment while trying to restrict the influx of economic migrants. In this dilemma arising out of mixed maritime migration, the Australian Department of Immigration and Border Protection observed: 

―State measures to control irregular maritime migration can, and do, often clash with humanitarian considerations inherent in multiple international legal instruments that are activated in relation to irregular maritime migration, including in relation to non-refoulement… Irregular maritime migration presents an undeniably visual manifestation of irregular migration and as such triggers some fundamental political and policy concerns relating to States‘ international protection obligations, sovereignty, border control, security, and as such demands the attention of government.

Given the cultural and linguistic similarity between Bangladeshis and Rohingyas, it can be hard to differentiate between them. One question that arises here is why Rohingya refugees residing in Bangladesh are opting to migrate elsewhere.

Why the Rohingya refugees opting to migrate from Bangladesh? 

According to UNHCR, as of August 2015, a total of 2,31,855 refugees were registered in Bangladesh, out of whom 31,759 were Rohingya PoCs. However, only 10% of them receive assistance from the government while the rest live in abysmal conditions, in crowded makeshift camps. Moreover, as influx of Rohingya refugees have increased over time, not only has the government refused entry to the refugees, but hostility from locals towards refugees who are already living in Bangladesh, is also another factor that motivates Rohingyas to migrate elsewhere. Saiful Huq Omi (2011) in his article titled 'Fleeing Burma' described the plight of Rohingya refugees in Bangladesh: 

―the Rohingya receive virtually no support and live in often sub-human conditions. It‘s common for 16 or more to live together in a single room of barely 30 square feet. Many suffer from chronic malnutrition. As stateless people, their movements are sharply restricted….Unable to leave their squalid refugee camps, they are prevented from seeking employment or engaging any activities on the outside. Formal schooling is banned in the camps, though recently the Bangladeshi government has allowed some schools to be opened there. Women are often gang-raped or forced into marriage with Bangladeshi thugs.

Therefore, it is the denial of basic rights to employment, education and safety which is acting as trigger factors behind Rohingya refugees residing in Bangladesh to attempt to migrate, even if the journey is perilous.

MASS INFLUX AND THE CHALLENGES OF RSD

Given that there were thousands of people stranded in the boat, another challenge was to carry out the process of Refugee Status Determination, or RSD—the legal act which examines why an individual has fled his/her country of origin, if there are well-founded fears of persecution, if the prospective refugee has committed any crimes against humanity or not, and therefore where h/she needs international protection under the ambit of 1951 Geneva Convention and its 1967 protocol. 

Regarding refugee status determination in the case of a mass influx, the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status states: 

―While refugee status must normally be determined on an individual basis, situations have also arisen in which entire groups have been under circumstances indicating that members of the group could be considered individually as refugees. 

This article is extracted from the Research paper titled 'Gender Based Violence and Subsequent Safety Challenges experienced by Rohingya Women'  in Chapter 3 of the Safety Report by SAFIGI Foundation 'Safety First for Girls'.

ABOUT THE SAFETY REPORT

The Safety Report by SAFIGI is a two-fold Open research on 'Core Issues Affecting Safety of Girls in the Developing World.' The first part of the Safety Report is a Research Paper. The second part is a detailed Data Analysis. 

The Safety Report Research paper is titled: 'Core Issues Affecting Safety of Girls in the Developing World.' The paper starts with an abstract before focusing on subjects in the key regions of Africa, Asia, and the Americas. A total of 7 Research papers make up the safety Report (sans the introduction and conclusion), including:

1. The psychological effect of mass sexual harassment on girls in Egypt (P.24) by Heba Elasiouty.
2. Safety concerns in relation to social media: Growing up female in an increasingly digital world (P.45) by Karin Temperley.
3. Psychosocial challenges faced by parents raising children with physical disabilities in Oshana region (P.68) by Misumbi Shikaputo.
4. Gender-based violence and subsequent safety challenges experienced by Rohingya women (P.119) by Shucheesmita Simonti.
5. LGBT policies and overall safety in Brazil (P.141) by Alinne Lopes Gomes.
6. Silent voices‘: Violence against the female body as consequence of machismo culture (P.177)  by Steffica Warwick.
7. America‘s Public Policy on Sexuality: The Repression of Girls in Vulnerable Populations (P.208) by Dr. Christina Sisti.

The Safety Report Data Analysis is titled: 'Core Issues Affecting Safety of Girls. Results and Outcomes based on Zambia, Egypt, USA, Tanzania, South Sudan, and Namibia.'

SAFIGI Outreach Foundation Ltd, a volunteer-based and youth led NGO registered in Zambia, implemented the Safety Report in order to understand the multifaceted concept of safety and how it applies to the female gender in diverse settings. And therefore, further prove safety is intrinsic, and that vices in society stem from an intimate level of the human being before its manifestation. This way, when we create safety solutions, whether it be in a developing nation, conflict zone, refugee camp, or patriarchal society, the problem is resolved from a deeply rooted cause. Such that, we treat the disease itself and not mere symptoms.

This study is as a result of collaborative effort pursued in the spirit of volunteerism via UN Online Volunteers.