Amnesty's submission to the Expert Panel on Asylum Seekers

Submission to the Expert Panel on Asylum Seekers 19 July 2012

Amnesty International strongly supports a regional approach towards refugees in the Asia Pacific.

However, for any regional plan to work it must be firmly grounded in principles of international human rights law and focus on the provision of durable solutions for asylum seekers and refugees.

This document outlines the short, medium and long‐term steps that Amnesty International believes are essential to create a genuinely regional approach to refugee movements and reduce the number of people forced to make dangerous onwards journeys.

Amnesty International believes that the key to a regional approach is to increase options for refugees and asylum seekers by: 

increasing legal recognition for refugees across the region;

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increasing access to basic services such as health and education;

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increasing access to the UNHCR; and

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increasing the possibility of resettlement.

Amnesty International remains firmly opposed to any policies of extra‐territorial processing throughout the region. These policies would breach international law and further erode refugee protection in the Asia Pacific.

This document does not seek to reiterate Amnesty International’s long held views and concerns about extra‐ territorial processing, but the organisation can provide this to the expert panel if required.

SHORT‐TERM RECOMMENDATIONS A regional approach to refugee and asylum seeker flows across the region will undoubtedly take time to build. However, there are steps the Australian Government can take in the short‐term to a) provide refugees with more access to official migration routes throughout the region to reduce the number resorting to unofficial channels, and b) lay the foundations for a long term approach. 

Australia must de‐link the onshore and offshore humanitarian visa programs.

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Within five years, Australia must incrementally increase its offshore humanitarian intake to 25,000 per year, maintaining a balanced resettlement program across Africa, the Middle East and Asia.

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Australia must encourage other resettlement nations to increase their annual intakes, and work with non‐resettlement nations to develop their capacity for resettlement.

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Australia must work with the UNHCR and other resettlement nations to offer resettlement to more Afghan refugees in Pakistan.

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Australia must increase financial and other assistance to the UNHCR for its work in the region to ensure: ‐ refugee registration and status determination can occur in a timely and fair manner; ‐ emergency assistance mechanisms for urban refugees (such as the UNHCR hotline in Malaysia)

are established and functional; and ‐ programs to support the needs of urban refugees are improved. 

Australia must provide local NGOs in countries such as Malaysia, Thailand and Indonesia with increased financial and technical support to deliver essential services for vulnerable refugees in camps and urban centres, including the victims of sexual gender based violence.

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Australia must ensure there is strategic alignment between AusAID and DIAC programs throughout the region.

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Australia should ensure that humanitarian assistance to Afghanistan includes a focus on internally displaced persons and refugees voluntarily returning from Pakistan and Iran, and should support initiatives that address the priority needs of these populations.

MEDIUM‐TERM RECOMMENDATIONS Australia has an important role to play in encouraging and leading the development and implementation of crucial elements of refugee protection throughout the Asia Pacific region. Australia must work with its neighbours to provide appropriate financial and technical support for these measures.

Malaysia Malaysia is host to between 90,000 and 170,000 refugees and asylum seekers.

Malaysian law does not grant asylum seekers or refugees any form of legal status. As such asylum seekers and refugees are subject to the same harsh measures meted out against irregular migrant workers, which includes being violently rounded up by vigilante groups, detention, caning, and even refoulement (return to the country from which they fled).

Refugees are able to register with the UNHCR and receive a card proving their refugee status. However, serious delays exist in UNHCR registration, with many asylum seekers reporting a wait of over 6 months.

Furthermore, this process can vary among different national and ethnic groups often leaving the smaller and more vulnerable groups of asylum seekers (such as Afghans) without access to registration.

Even if a refugee is granted a UNHCR refugee card, this does not translate into any form of legal status and being rounded up by the vigilante group RELA and placed in detention is still a serious risk.

Detention conditions in Malaysia are horrific. Detainees are subjected to inhumane punishments such as caning and crammed into cement boxes where sanitation is so bad that diseases are spread by rat urine.

As refugees in Malaysia do not have the right to stay in Malaysia, they also do not have the right to work or access state services. This forces refugees into the irregular workforce in order to survive, which in turn leaves them incredibly vulnerable to exploitation, sexual abuse at the hands of their employer and being rounded up in an immigration raid and detained.

Many refugees in Malaysia face destitution, especially particularly vulnerable refugees such as women fleeing physical, sexual abuse and domestic violence.

Australia must encourage the Malaysian Government to: 

increase its efforts to develop a domestic registration process for recognised refugees;

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allow NGOs access to detention centres to help identify refugees and asylum seekers; so they can be removed from detention;

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grant recognised refugees and registered asylum seekers work rights; and

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allow refugee and registered asylum seeker children to attend local schools

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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Thailand Thailand currently hosts some 150,000 refugees living in nine camps on the Burmese border, as well as over 2000 refugees living in urban centres such as Bangkok.

For the fifth consecutive year, the Thai Government has not activated its procedure for screening asylum seekers so nearly half the camp‐based population remains unregistered.

Refugees and asylum seekers have no legal status in Thailand and if found outside the camps face arrest, indefinite detention, and deportation to countries where they are at risk of persecution. The Thai Government does not provide any material assistance to this population. Instead, refugees in the camps rely on NGOs to provide all food and other services. Funding for these organisations has recently been cut by the international community. This has forced more refugees to leave the camps to find work in order to survive.

Although the situation in Burma is improving overall, the number of refugees fleeing the country has actually increased in recent years. The ongoing violence in Kachin and Rakhine states make it clear that many minority groups in Burma remain at risk and large scale repatriation of Burmese refugees is still impossible.

For refugees in urban areas the lack of legal recognition means that the risk of detention remains high, even for families and unaccompanied minors. Local NGOs are restricted in their ability to provide support for urban refugees, both through lack of funding and legal restrictions for locals to work with refugees.

NGOs in Bangkok are unable to visit refugees in detention.

Australia must encourage the Thai Government to: 

amend its Immigration Act to include the right to seek asylum in Thailand;

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reactivate refugee screening procedures for asylum seekers in Thai/Burma border camps;

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allow NGOs access to detention centres to help identify refugees and asylum seekers; and

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remove barriers for Thai individuals and Thai NGOs to work with urban refugees.

Bangladesh There are currently over 26,000 registered refugees in Bangladesh as well as an estimated 200,000 to 500,000 unregistered refugees.

The registered refugees live in squalid conditions in the two official refugee camps. Although these refugees have access to the UNHCR and NGOs, food rations are severely low and the camps are rife with malnutrition. Although this population is registered with the UNHCR, the Bangladeshi Government suspended the UNHCR resettlement program in 2010.

The unregistered population lives primarily in villages or make‐shift camps in the Cox’s Bazar district. The Bangladeshi Government has prohibited the UNHCR or NGOs providing any assistance to this population. The majority have no documentation and face serious abuses including arrest, indefinite detention, rape, starvation and no recourse to justice when they suffer physical or sexual assaults.

Since June this year, Bangladesh has closed its border to Rohingya fleeing the violence in Arakan state in Burma, and even pushed back Rohingya who had managed to cross the border.

Australia must encourage the Bangladeshi Government to: 

open its borders to those fleeing the violence in Burma;

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allow NGOs to return to the unofficial camps in Cox’s Bazar to provide basic services;

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allow the UNHCR to process and register all unregistered refugees; and

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allow resettlement to resume.

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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Indonesia There are over 4000 refugees and registered asylum seekers currently residing in Indonesia. It is estimated that there are a further 10,000 unregistered asylum seekers and refugees.

Indonesian law does not recognise refugees or asylum seekers, and the UNHCR is responsible for processing and protecting refugees in Indonesia. If caught by Indonesian authorities, asylum seekers are placed in detention centres and held until the UNHCR processes and verifies their refugee status.

Currently it can take more than six months to register with the UNHCR merely to begin the refugee status determination process, leaving refugees, including unaccompanied minors, languishing in appalling and dangerous detention conditions.

Refugees who are registered with the UNHCR face ongoing struggles in Indonesia. They are not allowed to work or access basic services like health and education.

A large portion of this refugee population has entered Indonesia with the intent of boarding a boat to Australia.

Australian must encourage the Indonesian Government to: 

provide legal status for refugees and registered asylum seekers;

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grant refugees and registered asylum seekers work rights; and

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allow refugee and asylum seeker children access to Indonesian schools.

LONG‐TERM RECOMMENDATIONS The majority of the region’s refugees originate from Afghanistan, Iraq, Iran, Burma and Sri Lanka. These countries are either emerging from or in the middle of protracted conflict and all have a long history of severe persecution of minority groups. Long‐term strategies in refugee source countries to promote stability and recognition of basic human rights are critical to reduce the numbers of people fleeing.

It is important to note that while these steps are long‐term in the context of reducing arrivals to Australia, many of them can be enacted immediately.

The Australian Government must play its part in addressing ongoing security issues in the Asia Pacific region through development, peace keeping and the promotion of international human rights standards.

Afghanistan1 Targeted killings of Afghan civilians increased in 2011.The Taleban and other armed groups continue to target civilians through assassinations and abductions, and harmed civilians indiscriminately in bombings (including multiple suicide attacks), violating the laws of war and committing a raft of human rights abuses.

The National Directorate of Security (NDS), Afghanistan’s intelligence service, continues to arbitrarily arrest and detain suspects, denying them access to a lawyer, their families, the courts or other external bodies.

As a result of conflict and insecurity the number of internally displaced people continues to increase, reaching half a million at the beginning of 2012.

1

See the following for more detailed country information on Afghanistan: Amnesty International Annual Report 2012: Afghanistan, http://www.amnesty.org/en/region/afghanistan/report‐2012 Afghanistan: Fleeing war, finding misery: The plight of the internally displaced in Afghanistan, 2012, http://www.amnesty.org/en/library/info/ASA11/001/2012/en

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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Afghan women and girls continue to suffer discrimination, domestic violence, forced marriages, trafficking and being traded to settle disputes. They were frequent targets for attack by Taleban forces.

The Taleban and other armed groups regularly target schools, students, and teachers. In areas occupied by these groups, many children, particularly girls, are prevented from going to school.

Australia must call on the Afghan Government to: 

allocate adequate resources and expertise to solve the issues of displacement in the mid and long‐ term;

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ensure that all returning refugees and internally displaced persons receive emergency humanitarian aid without delay to provide for their immediate needs including housing, food, water and health care;

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provide the Ministry of Refugees and Repatriation with adequate financial and technical resources to comply with Afghanistan’s obligation to provide displaced persons and returning refugees with immediate humanitarian assistance; and

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develop a realistic, comprehensive national action plan to help displaced people. Working with international donors and aid agencies, the government should involve displaced persons themselves in plans for return or resettlement, and work to provide livelihood opportunities for the displaced and returnees to encourage sustainable reintegration.

Iraq2 Armed groups opposed to the government and to the presence of US forces continue to commit gross human rights abuses, including indiscriminate killings of civilians and kidnapping. Many such attacks were carried out by al‐Qa’ida in Iraq and its allies.

Thousands of people remain detained without charge or trial. In July 2011, the Chairman of the Supreme Judicial Council (SJC) said there were around 12,000 untried detainees, referring only to those held in facilities controlled by the Justice Ministry. Many other detainees were believed to be in prisons run by the Ministries of Defence and Interior. Many detainees have no access to lawyers or their families.

Torture and other ill‐treatment are widespread in prisons and detention centres, in particular those controlled by the Ministries of Interior and Defence. Commonly reported methods are suspension by the limbs for long periods, beatings with cables and hosepipes, electric shocks, breaking of limbs, partial asphyxiation with plastic bags, and rape or threats of rape.

The security forces have used excessive force in response to anti‐government protests in Baghdad and other cities, using live ammunition, sound bombs and other weapons to disperse peaceful protests.

The Australian Government must call on Iraq to: 

sign and ratify the Refugee Convention and its protocol as well as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol; Optional Protocol to the International Covenant on Civil and Political Rights; Second Optional Protocol to the Covenant on Civil and Political Rights; International Convention for the Protection of All Persons from Enforced Disappearance; Optional Protocol to the Convention on the Elimination of Discrimination against Women; Optional Protocol of the Covenant on Economic, Social and Cultural Rights; Convention on the Rights of Persons with Disabilities and its Optional Protocol;

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See the following for more detailed country information on Iraq: Amnesty International Annual Report 2012: Iraq, http://www.amnesty.org/en/region/iraq/report‐2012 Iraq: Days of rage: Protests and repression in Iraq, 2011, http://www.amnesty.org/en/library/info/MDE14/013/2011/en

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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strengthen policies and further seek international cooperation to ensure the human rights of Internally Displaced Persons, including measures for their return or resettlement;

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adopt and apply measures aimed at guaranteeing full respect for human rights and international humanitarian law for all refugees; and

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increase the protection of ethnic and religious minorities as well as women, human rights defenders and journalists.

Iran3 Iranian security forces, including the paramilitary Basij militia, continue to operate with near total impunity and there was virtually no accountability for the unlawful killings and other serious violations committed at the time of mass, largely peaceful protests following the 2009 presidential election and in earlier years.

Security officials continue to arrest and detain government critics and opponents arbitrarily, often holding them incommunicado and without access to their families, lawyers or medical care for long periods. Many are tortured or ill‐treated.

Political suspects continue to face grossly unfair trials often involving vaguely worded charges that do not amount to recognisably criminal offences. They are frequently convicted, sometimes in the absence of defence lawyers, on the basis of “confessions” or other information allegedly obtained under torture during pre‐trial detention.

Torture and other ill‐treatment in pre‐trial detention remain common and committed with impunity.

Detainees are beaten on the soles of the feet and the body, sometimes while suspended upside‐down; burned with cigarettes and hot metal objects; subjected to mock execution; raped, including by other prisoners, and threatened with rape; confined in cramped spaces; and denied adequate light, food, water and medical treatment.

Iran’s ethnic minority communities, including Ahwazi Arabs, Azerbaijanis, Baluch, Kurds and Turkmen, suffer ongoing discrimination in law and in practice. Activists campaigning for the rights of minorities face threats, arrest and imprisonment.

The Australian Government must call on Iran to: 

allow the Special Rapporteur on torture to visit the country, and provide him with access to detention facilities;

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take all appropriate measures to end discrimination and harassment against persons belonging to ethnic and religious minorities;

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review security and criminal laws that are open to abuse in the form of the persecution of human rights defenders and political critics;

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take all steps necessary to reform the discriminatory provisions of penal and civil laws, including with regard to women’s equal rights in marriage, access to justice and legal discrimination;

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take steps to end the current culture of impunity by ensuring that all allegations of abuse are investigated by the judiciary in a timely, independent and transparent manner;

3

See the following for more detailed country information on Iran: Amnesty International Annual Report 2012: Iran, http://www.amnesty.org/en/region/iran/report‐2012 Iran: ‘We are ordered to crush you’: Expanding repression of dissent in Iran, 2012, http://www.amnesty.org/en/library/info/MDE13/002/2012/en

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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fully comply with its obligations under the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child with regard to the use of inhumane and/or public execution and the use of the death penalty in the case of minors; and

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fully guarantee the right to freedom of expression, press and political activity, including through the adoption of concrete measures aimed at the implementation of articles 24, 25, 26 and 27 of the Iranian Constitution.

Burma4 Between May 2011 and January 2012 the Burmese Government released more than 650 political prisoners and reduced the sentences of many others. However, Amnesty International believes that hundreds of political prisoners remain behind bars in Burma. Due primarily to a lack of transparency by the government, exact numbers are not known.

Many ethnic minority areas have experienced—and several continue to experience—insurgencies or armed conflicts between the Burmese army and various ethnic minority armed groups. Violations of the right to religious freedom affect every religious group in Burma.

Amnesty International has received reports not only of large‐scale troop movement to the Kachin area, but recent incidents of torture, extrajudicial executions, and sexual violence against civilians. Reports of abuses by the Kachin Independence Army were also received.

Ethnic and Muslim minority Rohingyas primarily in northern Rakhine State have experienced no appreciable improvement in the realization of their human rights. They are still not recognized as citizens and are subject to systemic discrimination in marriage, travel and employment.

The Burmese Government declared a state of emergency in Rakhine State on 10 June, following an outbreak of communal violence the previous week among the Buddhist Rakhine, Muslim Rakhine, and Muslim Rohingya communities. It remains in effect in several areas.

Amnesty International has received credible reports of other human rights abuses against Rohingyas and other Rakhine Muslims– including physical abuse, rape, destruction of property, and unlawful killings – carried out by both Rakhine Buddhists and security forces.

Many Rohingyas continue to leave Burma on their own or were smuggled out, either overland to Bangladesh or on boats during the “sailing season”, in the first and final months of the year.

Australia must call on the Burmese Government to: 

release the hundreds of political prisoners that remain behind bars;

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ensure full and unfettered humanitarian access to displaced people, and conduct an independent and impartial investigation into recent communal violence; and

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replace the state of emergency in Rakhine State at the earliest opportunity, facilitate international monitors and address decades of systemic discrimination against ethnic minority Rohingyas.

4

See the following for more detailed country information on Burma: Amnesty International Annual Report 2012: Myanmar, http://www.amnesty.org/en/region/myanmar/report‐2012 Myanmar: Meet immediate humanitarian needs and address systemic discrimination, 2012, http://www.amnesty.org/en/library/info/ASA16/008/2012/en Myanmar: Abuses against Rohingya erode human rights progress, 2012, http://www.amnesty.org/en/news/myanmar‐rohingya‐ abuses‐show‐human‐rights‐progress‐backtracking‐2012‐07‐19

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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Sri Lanka5 Sri Lanka is not fulfilling many of its international human rights obligations. Impunity remains the norm for gross violations of human rights, including alleged war crimes. Gross and systematic human rights violations continue to take place. Sri Lanka’s armed conflict ended in 2009, but its legacy of unlawful detention practices continues; arbitrary arrest and detention, torture and other ill‐treatment and custodial killings remain hallmarks of Sri Lankan policing.

The number of reports of enforced disappearances in the past six months is alarming; political activists critical of the state continue to be victims.

Sri Lankan authorities circumvent or ignore protections built into the ordinary criminal justice system.

Sometimes they act outside the law, more often they invoke security legislation to arrest suspects without evidence or warrants and to hold them without charge for extended periods.

Australia must call on the Sri Lankan Government to: 

abolish the system of administrative detention;

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release all detainees, including all persons held in “rehabilitation camps” unless they are charged with internationally recognisable crimes and tried in full conformity with international standards for fair trial;

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immediately end all use of incommunicado detention;

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immediately close all unofficial and secret places of detention;

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investigate and prosecute all allegations of extrajudicial, summary or arbitrary killings and bring the perpetrators to justice in accordance with international standards; and

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implement the recommendations of the Special Rapporteur on torture, including to strength legal safeguards for eliminating all forms of torture or other ill treatment in prisons and during interrogations.

It must be acknowledged that many refugee producing countries in the Asia Pacific, such as Afghanistan and Burma remain deeply unstable and prone to widespread human rights violations. As such, repatriation is currently not an option for many asylum seekers and refugees in the region.

Conclusion As long as refugees have little chance of finding safety through official channels many will be forced to seek protection through dangerous unofficial channels. As such, a successful regional approach to refugees can only work if refugees and asylum seekers’ access to protection and durable solutions is improved, as evenly as possible, across all regional countries.

Amnesty International believes that Australia has a key role to play in developing a regional approach to refugees that in the long term reduces the need for people to flee their homeland, in the medium term reduces the need for refugees to flee countries of first asylum and in the short term provides refugees with more access to official migration routes throughout the region.

This approach must never be viewed as a substitute for the long‐established obligation to accord protection to those spontaneously seeking asylum in Australia. In fact, policies implemented by any state that push asylum seekers back across borders and avoid responsibilities towards refugees, will ultimately increase pressure across the region for refugees to get on boats to Australia.

5

See the following for more detailed country information on Sri Lanka: Amnesty International Annual Report 2012: Sri Lanka, http://www.amnesty.org/en/region/sri‐lanka/report‐2012 Sri Lanka: Reconciliation at a crossroads: Continuing impunity, arbitrary detentions, torture and enforced disappearances, 2012, http://www.amnesty.org/en/library/info/ASA37/008/2012/en

Amnesty International Australia submission to the Expert Panel on Asylum Seekers

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