Contributed by Dr. Bishnu Pathak and Chitra Niraula
Case I: Somnath Ghimire of Chitawan reached New Delhi from Kathmandu via Mahendranagar on July 12, 2001. He stayed there for two days and flew to Moscow via Uzbekistan Airline. In Moscow, a broker from Pakistan took his passport and held him in a closed room. He was secreted in a large container and transported to the Ukraine after spending one night in a forest. An Indian broker in the Ukraine kept him along with 35-40 others. Twelve of the captives were Nepali, the rest were Indians and Pakistanis. Police raided the house the fourth day after he arrived. The captives were provided only tiny pieces of bread. After a month, they were freed only after they agreed to leave the country within 24 hours. They walked through the night crossing a jungle. They were housed in a cowshed upon reaching a village. By then there were only 13 Nepalis and 4 Indians. The room in which they were hiding was small and cold. They had no warm clothes. It was snowing. To avoid police raids they had to hide beneath snow mounds for six months.
On January 10, 2002, all the Nepalis arrived in Kiev. After hiding there for a month they went on to the Slovakian border. They hid for another month in a cowshed. They were driven in a convey truck across the border but were arrested on the other side. They escaped from the police vehicle that night but were arrested again the next day. They lived on water alone for eight days and then ran away with the help of a broker. They entered Slovak and walked for eight hours during the night. They were arrested by Slovak police and jailed for a month. They were taken to a railway station and a broker took them to an underground house. They stayed there for 35 days in a dark room, with no sanitary facilities. Then the broker brought them to Bratislava and kept them hidden for 42 days. Hunger finally drove them to a police station where they were placed under arrest for 11 months. Finally, on January 1, 2003, Ghimire along with couple of Nepali arrived in Austria and applied for refugee status.
Prachanda To Go Europe?
Rumors are rife in Kathmandu about the former guerilla leader’s visit to Europe. The personal assistant of Chairman of the Maoist party told us today that the travel plan hasn’t been fixed yet. “Who told you?” Prachanda, the rumor goes, will fly today evening and is scheduled to take part in an international conference in the Swiss city of Geneva.
But this is not the rumor. The two day long meeting of the Council of the Socialist International will begin in Geneva on 29 and, according to the SI website, a discussion titled “Consolidating peace in Nepal” is scheduled on the second day. Nepali Congress Democratic leader Sher Bahadur Deuba flew to Geneva yesterday. Sushil Koirala, NC leader who is in the US for medical reason, will also participate in the meeting, Gorkhapatra reported.
If he goes, this will be Prachanda’s second foreign trip after he became public last year amidst an unprecedented public curiosity and Maoist fanfare. He took part in a conclave in New Delhi, India earlier this year organized by Hindustan Times newspaper.
Case II: People from the districts returned to their native homes to celebrate Dashain in mid-October, 2002. Bal Bahadur, Ramesh Dambar, and Raj Kumar were tense. On the evening of October 13, they reached Kathmandu’s international airport, received boarding passes from a broker, and rushed onto Austrian Airline. Instead of checking them, the security personnel told them to hurry-up. The next day they reached Vienna and applied for refugee status. After a week, eight others also reached Vienna the same way. They had given USD 12,377 to a broker to reach Vienna with the intention of earning a lot of money in the West. However, they could not obtain jobs and are now preparing to go to Portugal.
Case III: On October 19, 2006, 13 Nepalis, including Suman, Netra, Chhiring, Shekhar, Shiva and Kalpana arrived at Vienna International Airport via Tel Aviv. They remained at the airport for 24 hours waiting for the police to arrest them. Then they called the police. The police officer on duty told them to call later since he did not understand English. They went to immigration at the airport and said that they were refugees from Nepal. Immigration officials arrested them and called the Dolmetsch (Nepali translator) for interviews. They were taken to a closed camp in Trieskrichan, 18 km from Vienna and given green cards. On October 31, 2006, they were interviewed for the third time and jailed at Josepstrasse, on suspicion of having come into the country for to Poland as the same day Raj Kumar Pun was arrested at Vienna with visa from Poland. After 35 days, they were released when it was found that they had arrived from Tel Aviv. They were penniless and had great difficulty reaching the camp. Finally they received a white card (refoulement, the temporary residence permit).
These three cases are representative of how Nepalis reach Austria and apply for refugee status. Prior to the Peace Pact and instability in transitional politics, the number of Nepalis seeking asylum in Europe and USA increased dramatically. Between 1998 to 2004, 7,000 Nepalis applied for refugee status in Germany; 1,023 in the UK; and 569 in Australia. According to police sources, in the period between 1998 and 2006, 450 Nepalis applied for asylum in Austria. Many Nepalis have availed themselves of refugee status in the name of Bhutanese refugees. Somnath Ghimire, Vice President of Institute for Nepali Social Culture in Vienna, refuting the police source, believes that there are no more than 200 Nepalese refugees in Austria. Only 12-15 Nepalis have received positive UN Convention Status, known as the UN passport , with which a person can travel to any country except his/her homeland. After obtaining this document the holder gets facilities equal to those of Austrians (a government flat and 700 Euros a month until he/she is employed and has compulsion to leave alone) and is eligible for permanent citizenship after one year. Nepalis apply for asylum because:
(i) they are endangered by the Maoists;
(ii) they are threatened by the conflicting parties –State and Maoists; and
(iii) threatened by the government. (For UN positive, the alien shall prove that s/he is at risk or fear of life threat at home country on one hand, on the other, alien should show its competence of assimilation on culture and language of the applied country.)
Once a Guerilla, Now a Refugee: Rajesh Khatiwada, resident of Dingla, Bhojpur, was a company commissar of the Maoist People’s Liberation Army, who found himself dissatisfied due to individualist ‘Prachandapath’. He addressed his concerns to the Maoist leadership, but without success. After having pressures to leave the party from all corners, he received a PC (photo change in passport), and flew to Vienna via New Delhi in May 2005. In his first interview there, he presented his documents and video in front of a jury, which resulted in his receiving positive UN Convention Status within 11 months and became a first man to receive positive in the first interview in very short period.
The police at the Vienna International Airport do not investigate those coming into the country. Thus, asylum seekers have to go to the police or immigration officials and identify themselves as refugees. Communication is difficult given the differences in languages. The Nepali Dolmetschs do not always translate appropriately, ask more questions than the jury, and sometimes harass the asylum seekers. This occurs because some Dolmetsch despise refugees. Asylum seekers are moved around to different camps, where they experience problems obtaining scarce food supplies.
‘White card’ recipients have to reside in the specified perimeter; otherwise, they have to relinquish their allocations of 290 Euros for food and lodging to maintain social status. Because white cardholders are not permitted to seek employment they are subject to labor exploitation. They pay huge broker fees (4,651 to 13,953 Euros) having borrowed from moneylenders at usury interest rates. Further, they need to remit money to support their families. They also have to be mindful of the police, because if they are caught they are deprived of their Social Status and their Employer is fined 5-10 thousand Euros. If the employer is found to employ irregulars for the third time his legal status is jeopardized. If the irregular worker is caught for the third time, there is risk of deportation. Secret workers who do not pay taxes so the government are deprived of income. The data for 2002 and 2003 shows that 27% of those applying were awarded refugee status. The remaining 59% of applicants were refused the status and have been forcefully deported. Would it not be beneficial for both the refugees and the government to consider granting work permits for the refugees holding white cards?
Some asylum seekers other than Nepali are involved in illegal activities, which affect the genuine asylum seekers. Most of these are between the ages of 22-30. In the message for International Youth Day, on August 10, 2003 the UN Secretary-General Kofi Annan, said: “The world’s young people, now numbering more than 1 billion, are major human resources for development, and can be key agents of innovation and positive social change. Yet the scale of youth poverty robs the world of that potential. In a world of great riches, nearly one in five people between the ages of 15 and 24 must eke out an existence on less than one dollar per day, and almost half live on less than two dollars per day.”
Legal Procedures for Refugees
A New Asylum Act (Asylgesetz 2005) is the main legislative text concerning matters of asylum. It determines the powers of the competent authorities, the rights and obligations of asylum seekers regarding entry and residence, the administrative procedure for applications for asylum, and the rules on judicial review. It was passed by the Austrian parliament on December 31, 2005 modifying the previous Asylum Law 2003. Article 3.1 of the Asylum Status says that an alien shall apply for protection unless the application is rejected on account of safety in a third country. The asylum seeker shall be granted asylum status if it is credible that the alien would be at risk of persecution in the country of origin as defined in article 1 A (2) of the Geneva Convention on Refugees. An alien shall be granted asylum status based on an event that has taken place since s/he left her/his country of origin with objective/subjective reasons arising sur place. Article 3.3 states that an application for international protection shall be dismissed on granting of asylum status if an internal flight alternative (Art. 11) is available to the alien or the alien has given rise to a reason for ineligibility for asylum (Art. 6). Under Article 3.4, an alien shall be granted asylum status ex-officio without any further procedure if Austria has undertaken to do so following international law or on the basis of an application for international protection shall be issued in conjunction to refugee status.
The new act introduces a list of ‘safe countries of origin’ and bars applicants from presenting new evidence for asylum to authorities at a late stage in the procedure. As a result, refugees who do not at once present the full situation behind their flight are denied access to the appeal system and shall ultimately be returned to a dangerous situation in their country of origin. Based on the new Act:
• applications submitted by family members will be considered jointly;
• refoulement-status is extended to family members;
• persons with subsidiary status (non-refoulement status) can be issued with an identity card, which also includes a temporary residence permit.
The procedure for admission shall be carried out in only one of the three reception centers (Vienna International/Schwechat Airport, eastern (Traiskirchen), and western (Thalham)) which are the branch offices of the Federal Asylum Agency. The decisions are to be made on the admissibility of the asylum application or ‘safe third country’ or ‘Dublin cases’ and in clear cases on their merits.
Under article 6, the following persons are not eligible for asylum:
• An alien shall be rendered ineligible for asylum status if and for as long as s/he enjoys protection pursuant to Art. 1, section D, of the Geneva Convention on Refugees;
• Any of the grounds set forth in the exclusion clauses in Art. 1, section F, of the Geneva Convention on Refugees exists;
• For reasonable grounds, s/he constitutes a danger to the security of the Republic of Austria or he has been convicted by final judgment of an Austrian court, of a particularly serious crime and, by reason of such punishable act, represents a danger to the community.
Similarly, the amended Federal Care Provision Act 1991 shall not entitle the asylum seekers if s/he or they are:
• nationals of EU Member States, Switzerland, Norway, Iceland and Liechtenstein;
• asylum seekers who have been convicted by an Austrian court;
• asylum seekers who do not cooperate in the establishment of their identity;
• asylum seekers who do not cooperate in the establishment of their need for assistance;
• asylum seekers who have submitted a further application for asylum within six months from the final decision in the previous asylum procedure;
• asylum seekers who display intolerable behavior in the accommodation centers.
The debate concerning the proposed amendments to the Asylum Law 1997 was controversial. The opposition requested to hear the opinion of experts on the issue. The parliamentary debate postponed from July to October. The NGO community criticized the Minister of Interior and the opposition for not taking immediate measures to grant federal care to all asylum seekers following the first ruling of the Higher Administrative Court. Before Christmas, the Minister of Interior declared a “Christmas peace” and opened new emergency accommodation facilities for homeless asylum-seekers.
Organizations to Support Nepali Asylum Seekers
The prominent organizations supporting Nepali asylum seekers include the Institute for Nepali Social and Culture (INSC), Austrian Nepalese Association (ANA), Sagarmatha, Non-Resident Nepalis (NRN) and Euro-Nepal United Democratic Front (ENUDF), Austria. The INSC is active in cultural activities along with cases of Nepali refugees. There are 150 individuals affiliated with INSC and in many cases they have offered support to deported asylum seekers. The ANA focuses on the permanent citizenship holders and has limited activities for asylum seekers. Sagarmatha consists of only one Nepali and seven Austrians. They focus on cultural programs. The President of Sagarmatha is the president of the Foreign Affairs Policy and an active member of the Austrian Social Democratic Party. The NRN is a recently formed organization and so very little is known about its activities. The ENUDF is the largest Nepali organization throughout Europe. It is basically driven by liberal communist doctrine. During certain periods, it has provided both financial and propaganda support to the communist movement. The Austrian Chapter of the ENUDF has recently been formed. It is headed by Rajesh, alias Prabin, although the name on his passport is Dharma Khatiwada. This organization is known to represent a progressive mind-set group endorses for ideological debates over cults of personality, ie, Prachandapath.
There is no record of Nepalis seeking asylum prior to 1998. Nevertheless, after the peace accord in 2006, the number of applications for refugee status increased drastically. Why have Nepalis gone abroad seeking asylum?
Nepali people expected many changes from the Popular Movement I. The Nepali Congress formed a majority government after general elections. Many ex-Pancha (followers of autocratic regime known as Panchayat System headed by the King) entered the Nepali Congress and reinitiated their feudalist positions in the name of democracy. People hoped for liberation from those feudal elites, but the oppression continued. The people who were further away from the fruits of democracy and the state continued to be victimized. The genuine leadership of the Nepali Congress such as Ganesh Man Singh, Krishna Prasad Bhattarai, Bharat Babu Prasai, etc. were pushed back whereas the Chaite–Congress-people (ex-Pancha and feudal) came to forefront and has been holding in ministries, parliaments and so many state organs. Consequently, the system tended to move away from the democratic values of liberalism, security and basic needs as basic rights.
The Maoists understood the people’s feelings. They initiated the People’s War in early 1996 with an objective of sweeping away the constitutional monarchy, the feudalistic society, and bureaucratic capitalism. In the beginning, their movement was slow but after the government’s Sierra Kilo II Operation, which affected many young people and their families, the migration increased tremendously. About one million youth entered the Gulf countries and more than that went to India. Because of problems of security, many middle class youths reached Europe, Australia and USA through different means seeking asylum. If there was no war and had a better option for livelihood, such a large number of young people might not have chosen to migrate, although they are mostly from middle and low-middle class family. However, the government of Nepal has earned a lot from remittance. Even after the peace pact between the state and the Maoists, large numbers of Nepalis are still suffering from conflict in Nepal. There are nine armed groups still waging a struggle in the southern plains for ethnic and regional autonomy, inclusive participation along with right to self-determination and their hidden motto is for secession from Nepal. The People’s War focused on specific institutions or individuals but now the conflict is widespread.
Both the Government of Nepal and those of the countries where Nepalis are living and working should provide humane assistance to them through recognizing and protecting their basic rights. Asylum seekers should receive support not only because of the UN Conventions and National Instruments, but also on the humanitarian grounds, for which the globe should be a common house, without any frontiers to all.
Edited by Professor Dr. Virginia E. O’Leary. Assisted by Shankar Poudyal and Rushma Shakya. Source: Media Monitoring and Field Observation. This report was prepared for CS Center, an academic, policy oriented and research based non-government, non-partisan and non-profit autonomous institution.