COMMENTS of the UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES
on the
DRAFT IMMIGRATION AND ASYLUM LAW
Of the Democratic Republic of Timor-Leste

INTRODUCTION

1. The Office of the United Nations High Commissioner for Refugees (UNHCR) welcomes the invitation by the Government and Parliament of the Democratic Republic of Timor-Leste to provide observations on the Draft Immigration and Asylum Law (hereinafter referred to as the Draft), insofar as the law impacts on Timor-Leste's international obligations as they relate to asylum seekers and refugees. Timor-Leste having ratified the 1951 Convention and the 1967 Protocol on 12 December UNHCR's comments are also made in accordance with its supervisory responsibilities and Article 35 of the 1951 Convention Relating to the Status of Refugees (hereafter referred to as the 1951 Convention or Convention)/1967 Protocol.
2. UNHCR submits these comments seeking to support the adoption of national refugee legislation that is both functional and appropriate for a new nation such as Timor-Leste, as well as compatible with international refugee protection standards and best practice.
3. UNHCR advocates that the exact language of the 1951 Convention is incorporated wherever possible into national legislation to assure that this fully accords with international norms and law. This is particularly important with regard to the principle of non-refoulement contained in Article 33, the refugee definition contained in Article 1A(2), and the text regarding exclusion contained in Article 1F of the Convention. Where appropriate, UNHCR has also taken the liberty of suggesting alternative formulations for text in the Draft.
4. Given its specific mandate for refugee protection and asylum, UNHCR has not commented on the provisions of the draft law that are unrelated to asylum and refugee protection.
5. UNHCR hopes that these initial comments will prove useful to authorities in the preparation of the new Immigration and Asylum Law of the Democratic Republic of Timor-Leste. UNHCR remains available for further consultations or technical exchanges as needed.

EXECUTIVE SUMMARY

The asylum related Chapter of the draft law (Chapter XI/Right of Asylum) has been largely adopted from the Portuguese Refugee Law of 1998. Arts. 84 to 113 of the Draft are largely extracted verbatim from the Portuguese text. There are a few omissions or alterations. It is commendable that the Government of Timor-Leste has chosen to base its legislation efforts on an established legal model that provides for most basic safeguards of refugees' rights.

However, concern remains regarding some shortcomings that may result in a failure to extend protection to individuals that may be in need of this. In particular the admissibility procedure, drawn from the Portuguese Law No. 15/1998 dated 26 March 1998 (Chapter II, Section I) may limit access to protection for asylum seekers.

The Draft includes several incompatibilities with the specific situation in Timor-Leste. It is an excessively intricate legislative initative, given the limited number of individuals who are likely to seek refugee protection. The Draft is also more restrictive than the rights and guarantees foreseen in Portuguese law. The following are the UNHCR recommendations for amendment to reduce the complexity of the present Draft, and address the resulting difficulty regarding application in the current administrative and judicial environment of Timor-Leste.

RECOMMENDATIONS
The following is a summary of UNHCR's recommendations, which are intended to make the present Draft more efficient and consistent with international standards:

1. Non-refoulement principle:
Proposed text for insertion after Art.84.:
"Authorities of Timor-Leste shall not expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
The principle of non-refoulement contained in Art. 33 of the 1951 Convention has been confirmed as a pre-emptory norm of international law, obligatory for all States. It should appear as a general guiding principle among the first provisions of the chapter on Asylum, from Art. 84 onward, thus restating it as the fundamental commitment of a State to international refugee law and protection principles.
UNHCR considers it helpful to highlight the principles of non-refoulement and non-rejection at the border among the provisions of Section I, Chapter XI. These key principles of international refugee law should be strengthened in the context of the domestic legal system, in order to give clear guidance to all authorities.
Art. 68 in Chapter X on deportation is making a similar statement. To that effect, a text, corresponding to Art. 33 of the 1951 Convention should be inserted after Article 84.

2. Primacy of the 1951 Convention / 1967 Protocol and its relation to general immigration rules and definitions:
Proposed text for insertion at Article 85:
Article 85
Definitions, relation to International Law and immigration provisions
1- Asylum is the official recognition by the State that someone is a refugee and is subject the rights and obligations of this law.
2- An Asylum seeker is an alien who, in need of protection, seeks recognition and protection as a refugee.
3- A refugee is a person who has been granted asylum or is entitled to be granted asylum according to Art. 84 (Article 1A of the 1951 Convention).
4- The provisions of any treaties or International Conventions of which RDTL is party or adheres to, in particular the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, have precedence over the present law according to Art. 9, Paragraph 3 of the Constitution.
5- The provisions of this chapter (XI) on asylum shall have precedence over the general norms of this law. Other norms of this law shall not be applied to refugees if they could interfere with the provisions of this chapter or be inconsistent with the relevant international law.
To facilitate application of the law, it is helpful to explain more clearly the primacy of the 1951 Convention and its 1967 Protocol over domestic legislation according to Art. 9 (3) of the East Timorese Constitution. The need to interpret the Law in light of the 1951 Convention should be highlighted. Respect and observance of the asylum law are better served if the law adopts the relevant standards of international law from the outset.
As noted above, there should be clear definitions of who is an "asylum seeker" and a "refugee". Such definitions should be included in the revised text of Art. 85.
UNHCR in principle recommends a separation of the immigration and the asylum laws to highlight the distinct character of refugee protection as compared to general immigration rules. This is considered good practice in most countries, including Portugal, Brazil and Mozambique. The separation of asylum laws from general immigration rules through separate legislation highlights the humanitarian character of asylum and underlines the special protection to be given to this institution as compared to other forms of migration. As Timor-Leste has decided to deal with both issues in one law , UNHCR recommends that the provisions of the asylum chapter of the Draft should be clearly designated and distinct from the general immigration rules. The non-applicability of immigration rules as far as they infringe upon refugee rights should be highlighted. In particular, this would apply to: Articles 15 (refusal of entry), 29 (interdiction to enter), 58 (cancellation of residence authorization) and 63 (grounds for deportation) of the Draft, as these interfere with Articles 31, 32 and 33 of the 1951Convention.

3. Humanitarian and temporary protection:
Proposed text to be inserted after Art. 90 (equivalent to Art. 8 and 9 of the Portuguese Refugee Law):

Article 91 (new)
Humanitarian Protection
"1- Shall be/May be granted a residence permit for humanitarian reasons to aliens or stateless people to whom the provisions of Art. 84 do not apply and that are prevented or feel unable to return to the country of their nationality or habitual residence, for reasons of serious insecurity emerging from armed conflicts or from the systematic violation of human rights that occur therein.
2- The residence permit referred to in the above paragraph shall be valid for a maximum of five years and shall be renewable after analysing the evolution ot the situation in the country of origin.
3- The Minister for Internal Administration shall be competent to grant the residence permit mentioned in the present Article, free from any charges.
4- Eligibility of asylum seekers for a residence permit for humanitarian reasons shall be verified within the same administrative procedure that contemplates eligibility for refugee status."
Article 92 (new)
Temporary Protection
1 - The Timorese State can grant temporary protection , for a period not exceeding two years, to persons displaced from their country as a consequence of serious armed conflicts which generate large-scale refugee flows.
2 - The criteria based on which temporary protection can be granted shall be defined, in each case, by Resolution of the Council of Ministers.
The provisions of the Portuguese Law relating to residence permits for humanitarian reasons and temporary protection should be incorporated into the present Draft, as they provide a legal basis for addressing mass influx situations, as well as individuals who may not meet refugee criteria but nonetheless demonstrate a humanitarian need that precludes deportation.
The Portuguese Law provides for a special residence permit for humanitarian reasons as well as a temporary protection regime. UNHCR considers that persons fleeing war and generalized violence should be accorded international protection at least temporarily. While not a universally binding principle, this has been widely recognized including through the OAU Convention, Cartagena Declaration, and Executive Committee (EXCOM) resolutions as well as state practice. The Portuguese, Mozambican and Brazilian legislation, have introduced similar protection mechanisms for the victims of war and violence. Recently, so has Macedonia.
While victims of indiscriminate violence and gross human rights violations may not always fall within the definition of Art. 1 of the 1951 Convention, they still may require save haven and freedom from further harm, until the threat to their lives in their home country has subsided. Art. 9 of the Portuguese Law, provides a mechanism to address influxes without having to resort to individual case review immediately. International humanitarian and relief agencies can react more speedily once a country accepts at least temporary protection of such refugees on a group basis. The existing provisions of Art. 20 (Chapter III) are not sufficient, since they do not refer to situations of mass outflow or other forced displacement. At the same time, Art. 20 unnecessarily restricts the Minister's authority to grant extension of such authorization beyond a total of 60 days.
Should Timor-Leste consider that the provisions of Art. 8 of the Portuguese Law would create obligations that could not be met given present conditions in Timor-Leste, then the inserted text could be discretionary; "May be granted…" instead of "Shall be granted…".
Art. 9 of the Portuguese Law is useful in case of a (- hypothetical -) mass influx situation where individual determination of status that Art. 8 requires, would not be feasible due to the high numbers involved.
UNHCR therefore suggests that Timor-Leste adopts Articles 8 and 9 of the Portuguese Law, albeit slightly modified, and insert these after Art. 90 of the Draft.

4. Foreseen admissibility procedure (Section II, Art. 91 onward):
UNHCR is of the view that the Draft introduces unworkable procedural complexity given resource constraints and other issues, since the procedure is divided into a separate and very elaborate admissibility examination and subsequent assessment of the merits. Operationally this complex system will be difficult to implement by civil servants in Timor-Leste. The Portuguese law upon which this model is based sets out a relatively complex procedure according to which asylum should be requested and refugee status be determined. Unlike a majority of (other) states' legislation, it foresees two nearly independent procedures subsequent to each other, one relating to the determination of admissibility of a claim and the other to the preparation of a decision on the merits.
The reason for such great differentiation of the Portuguese law was a substantial influx of asylum seekers to that country in the beginning of the 1990's. The separate admissibility phase was meant to provide a screening mechanism to deal with high numbers of asylum seekers. Further, the Portuguese law adopted concepts introduced as a result of regional discussions within the European Union, including "safe country of origin" and "first country of asylum". These are concepts designed to filter abusive claims and allocate asylum responsibilities within a region of major attraction for refugees, the European Union. While such differentiation may be conducive in a highly industrialized country like Portugal, they do not appear appropriate in the (resource constrained) situation of Timor-Leste.
Article 94 creates confusion between fundamentally different phases of the refugee status determination (RSD) procedure, i.e. admissibility and examination on the substance. It unnecessarily restates exclusion provisions already set forth in Art. 86 of the Draft, which applies to the substantive part of the RSD procedure. Application of the exclusion clause is only to be examined during the substantive part of an RSD procedure, or after an asylum seeker has been determined to qualify as a refugee under the inclusion criteria. The exclusion clause should not be applied to determine if a case is to be admitted to procedures as appears to be the case in the present Draft. In practical terms, a problem that would emerge during the asylum determination is the excessive importance that the admissibility phase would carry relative to the substantive phase, where the adjudicator tends to base his conclusion on the outcome of the examination of the case during the admissibility. Due regard should therefore be given to the question of whether the proposed clear separation of an admissibility and a substantial phase is needed, helpful and likely to be easily understood and applied in the East Timorese context. UNHCR would recommend the consolidation of the admissibility assessment and the assessment of the merits, in order to simplify the admissibility evaluation. UNHCR stands ready to provide detailed advice towards a further simplified procedure. If the underlying reason for having a strong admissibility procedure is to filter out abusive and manifestly unfounded cases at an early stage, an alternative would be the institution of an accelerated procedure that could foresee, for instance, higher evidential requirements and quicker decisions for manifestly unfounded cases or arrivals from countries that rarely give rise to refugee claims. Such special procedure would, however, still comprise a full assessment of each case on its merits albeit in a simplified manner.

5. Foreseen border procedure (Section II, Art. 98 onward):
UNHCR recommends the elimination of the special border procedure foreseen in Art. 98 et. seq. (Section III, Art. 98 to 101).
Context:The Draft provides in Art. 98 et. seq. for a mandatory special regime that applies to asylum seekers who file their application for asylum at immigration posts on the border but do not meet the normal immigration requirements. The key element of this regime is the accommodation of the asylum seeker at the border station while the admissibility of his/her claim is being examined. Art. 99(3) requires a decision within five days. It is likely that the "special regime" would be applicable to the majority of asylum seekers.
Explanation: Such procedure would require adequate holding facilities and other resources at the border, and decisions are unlikely to be reached during the short deadlines provided for in the Draft, or even during the time of an applicant's maximum stay in such a facility (five days). Transportation of asylum seekers and processing of their claims through one central authority for refugee status determination procedure is the norm in most countries.
Reasons:
(1) Short timeframe for assessment - demanding admissibility procedure: In typical asylum cases it is considered nearly impossible to complete the full admissibility examination in a timeframe of only five days as Art. 99(3) requires. In order to check all admissibility requirements of Art. 94, detailed interviews need to be conducted with the applicants and often information needs to be confirmed from international sources relating to information relative to the country of origin. This process takes time, as does internal deliberation within PNTL and consultation of other departments concerned. The Draft suggests a particularly elaborate admissibility procedure in Art. 94, thus requiring the authorities to conduct defacto an asylum determination during the admissibility phase. For instance, excludability of an applicant which is mentioned in Art. 94 (c), should not be assessed until after a determination regarding whether the person qualifies under inclusion criteria (according to the refugee definition contained in Art. 84). In order to determine this, a full interview and assessment is necessary. UNHCR understands that related experience in Portugal would confirm this concern.
(2) No adequate resources at border stations: Refugee status should normally be determined by a single central authority (UNHCR Executive Committee Conclusion No. 8, 1977). Regular border officials are untrained in determining refugee status and should only refer cases to the competent authority (Resolution on Minimum Guarantees for Asylum Procedures, Brussels 21 June 1995). Under the special procedure that Section III, Chapter XI of the Draft provides for, there should be substantial logistical difficulties to move trained staff to remote border locations, conduct the relevant interviews and investigations, report back to Dili and prepare a well-founded decision in a matter of five days only, not to mention the time required to reach approval of the National Director of PNTL.
(3) Fair and efficient treatment at the border may be a challenge in view of very limited resources: As all asylum seekers should be treated with dignity and humanity, acceptable accommodation and food would need to be offered to them at the border pending the verification of admissibility. Further, interpreters for less spoken languages would have to work under more difficult condition at the borders, thus likely increasing the costs of their employment, if any interpreter can be retained at all. Establishment of such facilities would put another, unnecessary burden on the budget of Timor-Leste and likely diminish the quality of refugee status determination assessments. In general, the procedure foreseen by Section III, Art. 98, et. seq. would create an unnecessary strain on resources. PNTL would have to follow-up on asylum cases in order to meet such complex legal requirements, and take away valuable time for other equally important functions.
(4) Advantages of central processing and applying uniform and simple procedures: In Timor-Leste there are limited opportunities for asylum seekers to abscond. UNHCR recommends that conduct of all registration procedures be undertaken at one central location, with access to adequate administrative support, social services and interpretation services. A single, uniform and simple procedure to be followed at the central location lends itself to better processing through trained officials. Results obtained from interviews in a more conducive atmosphere are likely to be more accurate, just and fair, while central interviews would further ensure proper treatment of vulnerable persons. Art. 92 provides a reasonable mechanism for asylum applications at all points (see, however, comments on the application deadline below). Following that procedure, after initial registration of the asylum seeker with any police authority (Art. 92), including at the border, he/she should be referred directly to the Immigration Department of PNTL in Dili. This does not exclude the right of PNTL to hold a foreigner who is suspect of crimes or constitutes a threat to internal security at a defined place.

6. Foreseen deadlines for applying for refugee status (Art. 92, Paragraph 1):
UNHCR strongly recommends the deletion of the words "within 72 hours" from Art. 84, paragraph one of the Draft. Alternatively, the text "within 72 hours" could be replaced by "without undue delay". UNHCR further recommends the elimination of Art. 94 (1) (d) that foresees non-admission of asylum requests made "without due justification".
UNHCR is of the view that asylum-seekers should, in principle, apply for asylum without delay. However, under no circumstances should the application of time limits bar access to the asylum procedure. The reasoning behind this position is that to do so may lead to a violation of the fundamental principle of non-refoulement. UNHCR's Executive Committee affirmed in its Conclusion No. 15 on Refugees without an Asylum Country (1979): "while asylum-seekers may be required to submit their asylum request within a certain time limit, failure to do so, or the non-fulfilment of other formal requirements, should not lead to an asylum request being excluded from consideration".
A delayed application for refugee status without any valid reason may effect the credibility assessment, but should certainly not be a bar for requesting refugee status or to denial of refugee status, even if an asylum seeker has no "due justification" of his/her late application, as Art. 94 (1)(d) demands.
In line with the criteria set out in Articles 31 and 33 of the Convention, neither illegal entry nor the failure to report to the competent authorities within a given time limit can be considered formal grounds to exclude a person from refugee status. The obligation of a state party to the 1951 Convention to observe the non-refoulement principle of Article 33 exists independently from an alien's compliance with formal requirements, even if the alien entered the country illegally. In case of non-examination of the claim on the merits, there can be no assurance that the subsequent expulsion of the asylum seeker is not going to contravene Article 33 of the 1951 Convention.
Further, in most jurisdictions as in Western Europe, refugee laws usually do not limit the time to submit applications. Where they still exist, there is a clear trend to abandon such provisions, mainly because they could lead to a violation of the principle of non-refoulement set forth in Article 33 (1) of the 1951 Convention
Moreover, in UNHCR's experience, such time limits have never been effectively functional. Some countries have ceased to apply such time limits (Macedonia) or opted to amend the law after a few years (Bulgaria adopted its refugee law foreseeing a time limitation against UNHCR's advice in 1999 and amended it in 2001).
In view of the foregoing, UNHCR is seriously concerned with the use in Art. 92 (1) of a time limit for submitting applications to refugee status. The failure to apply for asylum within the specified deadline of 72 hours cannot be sufficient reason to reject a claim, as such rejection could be at variance with the principle of non-refoulement. It may further lead to cases with unclear status in Timor-Leste. It would be inconsistent with the 1951 Convention if Timor-Leste refuses protection of a genuine refugee solely for his/her failure to apply within 72 hours. UNHCR therefore strongly recommends that there not be an explicit time limit for applying for refugee status.

7. "Safe country of origin" and "safe third country" notion (Art. 94, Paragraph 3, (a) and (b):
The notions of "safe country/safe country of origin" and "first country of asylum/safe third country/third host country ", if necessary at all, in Art. 94 should not prevent the substantial assessment of a refugee claim. These concepts, at most, should be introduced as "rebuttable presumptions" in an accelerated procedure which is yet to be designed, not in an admissibility proceeding. These notions should certainly not be the criteria for admitting a claim to the full refugee status determination procedure. UNHCR stands ready to discuss further some advantages and disadvantages of incorporating these notions in the Draft.
Article 94 introduces the concept of "safe country" in the East Timorese refugee law. In recent years, a number of European countries have introduced into their legislation the possibility of channeling claims from applicants originating from countries considered as safe into accelerated procedures.
On 30 November and 1 December 1992, the EU Immigration Ministers adopted a Conclusion on Countries in which there is generally no Serious Risk of Persecution. According to the Conclusion, a "safe country of origin" is one "where it can be clearly shown, in an objective and verifiable way, normally not to generate refugees or where it can be shown, in an objective and verifiable way, that circumstances which might in the past have justified recourse to the 1951 Convention have ceased to exist". Member States may choose to use such an assessment in channelling cases into accelerated procedures. They should, according to the Conclusion, consider the individual cases of all applicants from such countries and any specific indication presented by the applicant that might outweigh a general presumption of safety (or of absence of persecution).
Finland, Germany, the Slovak Republic, the United Kingdom and Switzerland are some of the countries that have introduced safe country of origin lists. However, in all these countries, the safety of the country represents a presumption only, which is subject to rebuttal by the applicant.
UNHCR believes that in instances where the safety of countries figuring on such lists represents a presumption only, against which a rebuttal surrounded by adequate safeguards is possible, this practice does not give rise to concern. However, in cases where applicants coming from countries that figure on such lists are automatically excluded from assessment on the merits, UNHCR is seriously concerned. The use of the notion of safe country of origin as an automatic bar to access to asylum procedures is contrary to the necessary individual determination of refugee status under the 1951 Convention, which includes assessment of the subjective element of fear of persecution. It is impossible to exclude, as a matter of law, the possibility that an individual could have a well-founded fear of persecution in any particular country however great its commitment to human rights and the rule of law.
There is consequently a serious risk of leaving the migration service staff as arbiters of the decision on the safety of a country without parameters and simply with the presumption that no persecution is taking place in this country. It should also be pointed out that the actual benefit for Timor-Leste of country lists might be relatively limited. An analysis of East Timorese refugee statistics shows that extremely few asylum seekers originate from countries, which are generally put on "safe country of origin" lists in Western European countries.
UNHCR therefore suggests the deletion of the "safe country of origin" notion from he Draft East Timorese refugee law including Articles 94 (3) (a) and 94 (1) (b).
Art. 94 (94(1)(b) and 94(3)(b) also introduces the notion of "First country of asylum" or "Third host country". UNHCR understands that East Timorese authorities do not intend to assume responsibility for refugees who have moved in an irregular manner from a country in which they had already or could have reasonably found protection. More generally, UNHCR is of the view that it is legitimate for States to establish parameters for the purpose of identifying the countries where it would appear reasonable that refugee applicants be called upon to request asylum, and which could reasonably asked to assume responsibility for the individuals concerned
The analysis of whether the asylum seeker can be sent to a third country for determination of the claim, must be done on an individual basis. For UNHCR, the question is whether that country is "safe" for this asylum seeker, and is not a "generic" question that can be answered for any asylum-seeker in any circumstances (i.e. on the basis of a "safe third country list"). A country may be "safe" for asylum-seekers of a certain origin and "unsafe" for others of a different origin; even among asylum seekers of the same origin, a country may be "safe" for someone and "unsafe" for somebody else, depending on the individual's background and profile.
UNHCR further objects to the removal of asylum seekers to third countries with which they have not established any meaningful links. Mere "transit countries" should, therefore, not be considered as potential third (host) countries to which asylum-seekers could be returned for the purpose of filing their application.
UNHCR would therefore suggest the deletion of any reference to "third host country" in Art. 94 (3)(b) and 94(1)(b). If at all deemed necessary, the concept could be introduced in a separate article after Art. 103:
"1- Refugees from third host countries can be refused asylum in Timor-Leste and may be expected to return to the third host country.
2- Third host country is a country where the asylum seeker stayed prior to applying for asylum in Timor-Leste and s/he according to laws of that country could apply for asylum or refugee status there and he/she can
- legally return to that country;
- would not be subject to refoulement from that country to another country where his/her life or freedom would be threatened;
- either continue to enjoy refugee status or be given access to fair and efficient asylum procedures;
- and would enjoy basic human rights."
In the course of the interview, the applicant may rebut the presumption that a certain country is safe for him/her and shall have the right to appeal against any decision taken pursuant to this Article. The determination whether a country is a "third host country" should be done after substantial assessment of the case in the "fact-finding phase".

8. Exclusion Clauses (Art. 86 and 94 (1)(c)):
Proposed text for insertion at Article 86 (1)
"Shall not benefit from asylum:
a) Those for whom there are reasonable grounds for regarding them as a danger to the security of Timor-Leste, or who, having been convicted by a final judgement of a particularly serious crime, constitue a danger to the community of Timor-Leste"
b) (Unchanged)
c) Those who have committed serious non-political crimes punishable with at least three years imprisonment, prior to their admission to Timor-Leste as a refugee
d) (Unchanged)
Exclusion provisions in Art. 86 should be harmonized with Art. 1 F of the 1951 Convention. In particular for the Exclusion Clauses it is essential not to deviate from the wording of the 1951 Convention.
Art. 86 paragraph 1 a) of the Draft goes beyond the text of Art. 1 F. of the Convention. UNHCR appreciates that States wish to include national security concerns in their legislation. However, Art. 33 paragraph 2 of the 1951 Convention has also envisaged this possibility and may be adopted by the drafters of the law. Therefore, the new version of Art. 86 (1) (a), as quoted above, is suggested:
Art. 86 paragraph 1 c) of the Draft does not reflect adequately Art. 1 F b) of the 1951 Convention, though it is similar. Art. 1 f b) refers to "having committed a serious non - political crime". That means there must be a verdict of such a crime, not just the suspicion (see also UNHCR Handbook for Refugee Status Determination, Paragraph 153). If the drafters of the law define a serious crime as those which must be punished with three or more years, that is acceptable. This crime, however, must have been committed prior to the asylum seekers admission to the country of asylum. A crime committed by a refugee or asylum seeker in the country of asylum needs to be dealt with by the national authorities just like for citizens. The only exception to this allows again Art. 33 paragraph 2 of the Convention, which would allow expulsion, but would still acknowledge the possibility of being a refugee in spite of having committed a crime (see also UNHCR Handbook Paragraph 154). UNHCR therefore suggests the above-mentioned wording for Art. 86 (1)(c). in conformity with Art. 1 F. (b) of the 1951 Convention.

9. Cancellation of refugee status (Art. 107):
UNHCR recommends the deletion of Art. 107 (b). from the Draft for the following reasons:
A refugee should not lose asylum only for having practiced "forbidden acts" irrespective of their severity (Art. 107 (b), Art. 90). However, only forbidden acts that give rise to serious concerns of national security and public order (Art. 32.1 of the 1951 Convention) may justify the cancellation of refugee status and the subsequent expulsion of the refugee. In its present form, Art. 107 certainly goes beyond the cessation clauses of the Convention that are mentioned in Art. 1.C. of the Convention. Also Art. 32.2 of the Convention only allows expulsion in the case of "compelling reasons of national security …..", but not of loss or cancellation of refugee status. Therefore, Art. 32, paragraph 3of the Convention foresees for the refugee the option to find another country of asylum. The exclusion and cessation clauses foreseen in the Convention are exhaustive and are to be interpreted restrictively.
A ground for loss of asylum status under Art. 107 is "the practice of forbidden acts or activities, in accordance with the provisions of the present diploma" (Art. 107 (b)), which refers to Art. 90, that stipulates under the heading "Forbidden Acts" that refugees shall be prevented from: "a) Interfering, in a way forbidden by law, in the RDTL political life".
The right of asylum should not be lost because a refugee seeks to involve him or herself in the political affairs of RDTL in a manner that would be lawful except for the fact that he or she is not a citizen (under the provisions of this Draft). For example according to the new version of the Draft Art. 11 (f)), it is forbidden forforeigners to organize or participate in political demonstrations. However, Article 32.1of the Refugee Convention provides limited circumstances in which a refugee may be expelled. It states:
"The contracting states shall not expel a refugee lawfully in their territory save on grounds of national security or public order".
A balance must be struck between forbidden activities that are so serious as to justify the expulsion of a refugee under the Refugee Convention's terms, and the right of the refugee to be protected in the country of asylum. While some activities might be so serious as to outweigh the right of the refugee (e.g. murder, rape, crimes against humanity, association with a group fighting against the asylum state), the forbidden activities contained within Chapter II (new) of the bill are only prohibited to non-citizens, i.e. they do not inherently affect national security and public order. It would therefore be a violation of the protections within the Convention if refugee status could be lost on this ground.

10. Appeal Procedures:
Due to the three different procedures in Sections II, III and IV, there are three different appeal periods (5 days, 24 hours and 20 days). There is a fourth appeal against the decision on deportation, Art. 76. This is unnecessarily complicated. The appeal period of 20 days in (the regular procedure to the Appeal Court) would be acceptable (Section IV, Art. 104).
While it is commendable that there is a mechanism to appeal with suspensive effect, it is unlikely that appeal as provided for in Articles 97 and 100 will be effective, considering the short deadlines mentioned (UNHCR Executive Committee Conclusion no. No. 8 on Determination of Refugee Status requires "reasonable time" to be given to the appellant).
Further, whether the Minister of Internal Administration could be considered an independent (appeal) body is questionable.
Experience has shown that it is most unlikely for authorities in most jurisdictions to undertake appeal or review of asylum claims within 48 hours, as provided in Article 97 (2) or 24 hours under Article 100 (1). That the personal decision of the Minister is required would create further serious time contraint given the magnitude of his official and functional portfolio.
Therefore, UNHCR recommends to review the appeal procedures, in particular their application and decision-making deadlines. Due regard should be given to the realities, including administrative and judicial capacities in Timor-Leste. The goal of fairness and effectiveness of each appeal procedure should be kept in mind. UNHCR stands ready to give any advice as necessary.

11. Competent authority on Refugee Status Determination:
The procedural competencies and obligations of the migration department of the PNTL with regard to refugee matters need to be more clearly defined . In particular it is not clear from the Draft if and to whom the Minister could delegate his statutory decision making role. According to international standards, there must be one single central competent authority dealing with refugee status determination (UNHCR Executive Committee Conclusion No. 8 (iii) of 1977). It may be more likely to find qualified staff, with legal background, if the authority also comprises members of the Ministry of the Interior and other Ministries including the Ministry of Justice, Ministry of Foreign Affairs and Cooperation and the Secretary of State for Labour and Solidarity. UNHCR had suggested earlier the creation of a National Refugee Committee. A similar inter-ministerial Committee exists in many countries, for example, Brazil. UNHCR stands ready to discuss further and assist the Government in this regard.

12. Role of UNHCR:
In the exercise of its statutory functions under Art. 35 of the Convention, UNHCR should have an institutional position to advise PNTL or the competent refugee authority, and have access to case files and asylum seekers. While the Draft commendably, assigns UNHCR a statutory role to provide legal advice at various stages of the asylum procedure, it is essential for UNHCR to have full asylum information in order for the Office to exercise effectively its statutory role. Therefore, the following addition to the Draft is recommended for insertion after Art. 110 or any other suitable location.
"UNHCR shall have unhindered access to refugees and asylum seekers at all stages of the asylum procedure and vice versa. Further, it will have access to the files of individual asylum seekers and/or refugees ".

13. Non-Governmental Organizations (NGOs) dedicated to refugee assistance and protection
Art. 50 paragraph 2 of the Portuguese Law should be adopted in the Draft. It would enable Non Governmental Organizations to assume complementary responsibilities vis-à-vis asylum seekers in future. This could become particularly relevant when UNHCR ceases to have regular presence in Timor-Leste. (In Portugal, UNHCR closed its office, after handing over its statutory responsibilities to the Portugese Refugee Council (a national NGO)) . Proper selection of a reliable and effective NGO as a possible implementing partner could productively complement a State's efforts and activities for the protection and well-being of asylum seekers and refugees. The following addition to the Draft, following the Portuguese model (Art. 50.2 of the Portuguese Law), is recommended for insertion after Art. 110 or other suitable location:
"Non governmental organizations can co-operate with the State in the fulfilment of the measures provided for in the present law, namely through the signing of cooperation protocols."

14. Guidance for asylum seekers (Executive Committee Conclusion No. 8 (ii) of 1977):
Articles 51, 52 53, 57 and 58 of the Portuguese Law provide for the entitlement of asylum seekers to be informed of their rights, be provided with interpretation facilities, access to legal counseling by UNHCR, access to health services, the labour market after some delay and social services for vulnerable asylum seekers.
Art. 52 of the Portuguese Law is recommended for adoption/inclusion in the Draft. It states that:
"Asylum applicants shall benefit, whenever necessary, from the services of an interpreter who shall assist them in formulating their request and in the course of proceeding".
An asylum procedure without access to interpreters would not safeguard the minimum procedural rights of refugees and asylum seekers. An asylum procedure cannot be fair, just and efficient without the assistance of qualified interpreters since asylum seekers are essentially expected to speak different languages, which thus require translation into an official or working language of Timor-Leste. In the interest of a fair and transparent procedure, UNHCR further recommends the adoption of Art. 51 of the Portuguese Law. Such provision could state: :
"At the beginning of the proceeding, the Migration Department of the PNTL shall inform asylum applicants of their rights and duties, as well as the various steps of the asylum procedure.".
UNHCR would further recommend th adoption of Article 53 of the Portuguese Law in regard to Health Services:
"Asylum applicants and refugees shall be provided access to public health services, in accordance with the provisions of a decree, which shall be issued jointly by the Ministers of the Interior and Health."
Articles 57 and 58 of the Portuguese. Law are similarly recommended for adoption in the Draft:
"Asylum applicants of school age and for whom temporary residence permits have been issued shall have access to public education under the same conditions as citizens."
"Asylum applicants who have been victims of torture, rape, other forms of physical or mental abuse, other inhumane treatment and other extremely vulnerable asylum seekers shall be accorded approprial treatment and special attention and care at all stages of the asylum procedure."

15. Reaffirm right to travel document:
UNHCR is of the view that Art. 89 (2) should specifically restate a refugee's right to receive not only an identification card but also a refugee travel document in accordance with Art. 28 of the Convention Relating to the Status of Refugees.

16. Status of East Timorese returnees:
UNHCR is of the view that the immigration-related section of the Draft should ensure that former East Timorese refugees can continue to return to Timor-Leste in safety and dignity, without undue documentation requirements. This is consistent with Article 44 (2) of the Constitution and Article 12 of the International Covenant on Civil and Political Right, which has been ratified by Timor-Leste on 10 December 2002.
According to Articles 6 and 2 of the Draft, East Timorese shall have to prove their nationality in order to enter the country as nationals. The proof of citizenship is made according to the Nationality Law. Article 23 of the Nationality Law foresees proof of citizenship by birth registration (i.e. birth certificates). Considering that proof of registration or birth certificates are not available to a high number of returnees, there should be a special provision that will allow the entry of returnees, at least for the first time, under a systematic and coordinated procedure facilitated by the authorities, with the assistance of IOM and UNHCR as appropriate.

UNHCR
04 April 2003

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